[Other Legal Stuff: I address two recent Supreme Court news bits here and here -- one dealing with a rare case of simple oversight, the other orals on lethal injection protocols.]
In 1936, Chief Justice Hughes noted in a ruling that:
The rack and torture chamber may not be substituted for the witness stand. The State may not permit an accused to be hurried to conviction under mob domination -- where the whole proceeding is but a mask -- without supplying corrective process. The State may not deny to the accused the aid of counsel. Nor may a State, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is "but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured." And, the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence.
So noted one of eight good essays (the one on unions was a bit hard going and more time bound) in The Price of Liberty: Perspectives Of Civil Liberties by Members of the ACLU, edited by Alan Reitman. The essays were written in the late 1960s, but again, these themes clearly have timely lessons to teach us. This is not just a matter of comments that in effect predicted the Internet (if about a decade too soon), but matters that are always with us, unfortunately threatening liberty in the process -- perhaps in somewhat different ways (the chapter on the Cold War translates in various ways to the War on Terror). But, an overall concern and true desire for freedom remains as well.
The final section of the privacy chapter concerns balancing the rights of free press and individual privacy. This raises interesting themes. In particular, consider Justice Fortas' dissent* in Time v. Hill, involving an article that erroneously stated some pretty private facts of a family victimized by crime. The majority noted that the press was not liable enough to lose, but the dissent gave it less rope to hang themselves in cases like this where private individuals were involved. The majority underlined that life sometimes involves being put into public light, even when we rather it not be so. After all, they were victims of a crime, which is publicly reported, sometimes through very intimate court documents.
Fortas was more protective of their privacy (as compared to public officials), hooking things together with a general right to privacy (including contraceptive use ... he earlier also rejected forced blood tests when drunk driving is alleged, again on privacy grounds). Harriet Pilpel on her chapter on privacy was concerned when freedom of the press was limited for what she suggested was the less important right alleged here. But, she did accept the two rights might conflict, the press not always winning the battle. It also underlines the breadth of the right to privacy -- a right that sometimes might result in less "liberal" results in some sense of the word.
And, again, it points out how advocates of a constitutional right to privacy could and should not just speak of a privacy right as fundamental, but fit it into the enumerated liberties in place. For instance, freedom of speech is generally deemed important because of promotion of the public interest. State police power, best expressed by the Tenth Amendment, involves "health, safety, and public morals." And, so forth. The implication is -- and various cites from way back when can underline it -- was that there was some realm of privacy the state would not enter. The ACLU and even Justice Douglas might not like this idea when the press is involved, but they too must have some limits, even if the line was not crossed in Time v. Hill.
Given the time period, reading the book logically led me to take out my copy of Lucas Powe's enjoyable book on the Warren Court. The chapter on censorship also led to reading about the obscenity cases. A surprising duo in this area was Justices Stewart and Harlan, both deemed somewhat conservative, especially the latter. Justice Harlan wished to give states more discretion, though did so with a careful eye (see his opinion in Poe and Griswold ... and his "Fuck the Draft" opinion), he was more restrictive than some on federal obscenity rules.
But, Justice Stewart -- who knew it when he saw it** -- was more consistently dubious about restrictions than even liberal hero William Brennan, who tied himself into knots trying to protect all the worthwhile stuff while keeping out the bad. Given two justices were absolutists in the matter, three open to more restriction, this generally ultimately meant that it was up to him to decide if something was obscene -- and thus not protected by the First Amendment. Brennan was sort of a one person national standards board, and it did not work that well. [His push to achieve "justice" sometimes played a bit fast and loose with the "law," which was a problem I had with the guy.] Unfortunately, once he finally tossed up his hands, the votes for a libertarian approach were no longer there.
As to Stewart, he only would ban "hard core pornography," while eloquently noting:
Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman's intrusive thumb or a judge's heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.
Privacy rights once again.
---
* Chief Justice Warren signed on as well -- on certain issues, Warren was a bit more conservative than his reputation might suggest. Thus, he despised obscenity and dissented in a case involving burning the flag (the majority avoided the immediate issue by narrowing it to a free speech matter -- the conviction possibly arising merely from the words spoken at the time). These two joining together here was a bit ironic since they in effect supported Richard Nixon, who represented the family (his only appearance in front of the Court -- I reckon the only time a future President did so ... Robert Kennedy appeared, but that was not to be).
** He did not define it when he made this statement, but in the quoted case offered a definition (and only in a footnote) via comments by the federal prosecutor. It left something to be desired though Stewart felt it did not apply to pretty explicit pornographic pulps (books -- so apparently only visuals counted) that touched upon some of the subject matter addressed by the definition. To join things together, Stewart also cited privacy cases to note that unwilling viewers raise different concerns.
I am not aware of any time when he actually voted to uphold a prosecution addressing the content of the materials ... the few times when the Court itself did, he was among the dissenters. His first inclination was right – it is ultimately indefinable except as a “chain of adjectives” based on the “psychological quirks of the individual who makes the judgment.” [The Price of Liberty.]