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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, July 08, 2006

Victim of Morality Police Dies

And Also: I am having a debate over some comments respecting the NY ruling here. This morning it has gone to the term "civil union." Clearly, "marriage" has strong symbolic significance to those who oppose expanding its members, so it is at least pragmatically useful to first try to obtain all the benefits of marriage. But, ultimately, "marriage" as merely a label becomes rather lame, doesn't it? Inside, not the shell, matters in my eyes. But, then people want to criminalize flag burning ...


One account of the ruling for which Ralph Ginzburg, who recently died, obtained his dubious claim to fame noted that it was part of trio of cases, resulting in the least obscene works being unprotected.

In fact, even the government's own lawyer was appalled at the result, since he was just doing his job. He really didn't expect, especially given the era, that the Court (via Justice Brennan, no less, Justice Harlan and Stewart -- I know it when I see it, this ain't it -- among the four dissenters) would actually put a guy in jail for promoting rather bland works of this sort.

But, this was "immoral" so "pandering" (part of the problem was that this "offense" was really made up by the Court to allow them to go after this "bad man" ... this is part of why conservative Justice Harlan dissented) such works could put you in prison for the better part of a year. I guess this is not too surprising in an era when many people were in jail (or sometimes expelled from the country, if one was a residential alien) for consensual sodomy.

Justice Stewart, strong defender of freedom of the press in all its forms (including protecting sources), noted in dissent:
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.

Lessons apparently still to be learned. Sex, or perhaps sexual orientation, still results in some questionable exceptions to general principles of liberty. Or, any number of other "sacred cows." For instance, an ill advised effort that led to Tommy Chong being imprisoned for selling bongs was made into a documentary.

The words of Justice Brandeis remain true: "[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law." Thus, though I find the themes in Stanley v. Georgia eloquent, the freedom is broader than mere private enjoyment. After all, you need to obtain the material, and Ginzburg was in part targeted for its promotion.

Perhaps, this circles back to the same sex marriage ruling. Private enjoyment of same sex relationships, including by various contractual means, is very important and not in any way fully obtained throughout the country. But, such "private" activity also requires a public aspect as well, some recognition and security from the state. And, the Fourteenth Amendment secures such "privileges" on an equal basis as well.

Anyway, Ginzburg is worth remembering. A face behind the case, giving human life to the principles so many care about.