About Me

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

Sunday, April 14, 2019

Let's Talk About Sex (Supreme Court style)

[I will generally reference the cases as a whole here but excerpts will not include citations, ellipses or so forth.]

Trying to find some interesting Supreme Court audio over at Oyez.com, found a few related cases from c. 1970 with the basic question of the rights to receive obscene (granted for the sake of argument) materials in the mails and/or import them (at least for personal use).  This was a bridge period between the end of the Warren Court (which at the end seemed to accept everything) and the opening years of the Burger Court (eventually saying "sorry no" in Miller v. California).  Let's cover that and think bigger.

The word "no" is in the First Amendment, but as a practical matter, there are going to be limits.  Roth v. U.S. (1957) is the modern case that established basic rules in the area of obscenity though they were edited some over time.  The "absolutist" justices of the time were Black and Douglas, but in their dissent still noted: "Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it."  Justice Black found more ways to do that than Douglas (e.g., Black dissented in a case involving allowing students to wear black armbands as a form of symbolic speech).  Nonetheless, even Douglas would admit perjury or some trademark violation is actionable, even though both in some fashion involve speech.

There are lines and "freedom of speech" is not the same as an absolute right to speak.  Someone strongly libertarian will push back on many limits now in place, but at some point some line is going to be drawn realistically speaking.  And, the line is not going to be totally clear; no line drawing in the area of constitutional principles is likely to be. As the Roth noted:  "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system."  Is obscenity not a good application of this principle?  Granting it is not, it is not merely because it is speech where hazy lines must be drawn to some degree.

The current guidelines for obscenity is found in Miller v. California (1973) and  it correctly noted:
In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.
Yes, speech is involved here, but matters of life and death are left to juries, including such questions of insanity, and the particulars are variable depending on who does the deciding. There is some overall basic limit placed using rules of vagueness and so forth.  But, discretion remains, and a basic protection in our system is the trial and appeals system as a whole, not merely the Supreme Court setting forth a firm bar against something.

Nonetheless, there are broad limits to governmental discretion (and a matter of good policy for many private actors) set forth by the protections of freedom of expression.  For instance, some countries still in effect criminalize blasphemy. But, in a 1952 case involving a film, the U.S. Supreme Court said: "the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views." A few years before, the Court flagged a New York law that targeted "true crime" magazines as too vague (leaving open obscenity prosecutions), noting:
We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.
A rough guide to our law is to determine if the expression fits within certain areas that have traditionally been deemed unprotected speech. There was a long history by the time the Supreme Court decided Roth that obscenity was one such category.  But, even those two cases suggested things were moving in a liberal direction.  Years earlier, motion pictures were basically held not to be protected. In a contemporary case (Butler v. Michigan), a British rule that allowed the more sensitive (including children) potential viewers to be the test of acceptance was rejected.  And, though a law accepted in the 1870s as constitutional (cited in ex parte Jackson) was cited, this surely wouldn't be allowed in all of its particulars by the 1950s:
no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, where, or how, or of whom, or by what means, either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail.
But, people like Margaret Sanger got in trouble earlier promoting birth control.  The Supreme Court upheld in the late 19th Century multiple prosecutions that involved not only what would now be generally seen as fairly benign erotic works, but publications talking about sexual matters even in the context of marriage guides and the like.  Justice Stewart in the 1960s made a famous quip (though he also added detail to it) about knowing obscenity when he sees it and a certain film not being it.  I saw the film in question (The Lovers) and few would deem it as even "dirty" these days.  But, three justices still would have upheld prosecution.

Roth assumed obscenity was not protected so a basic "clear and present danger" type test need not be applied -- so, e.g., even horrible ideas can be spread, except if there is a chance of imminent incitement of violence.  But, even if it had the "slightest redeeming social importance" it would be acceptable.  A decade later, Stanley v. Georgia tightened this test:
It is true that, in Roth, this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public.
Such a test does not stop sale of all types of speech that might offend or which one might not wish to sell to children (the Supreme Court allowed more material to not be sold to minors but later did not apply such a rule to violent video games, violent materials not traditionally seen an exception). So, and all but two justices accepted this, there was that special wrinkle. Still, even if something was deemed "obscene," a person had a constitutional right to at least have it in the privacy of one's own home. Years later, Osborne v. Ohio did not apply this to child pornography (a film like Pretty Baby shows the lines there aren't totally clear).

(The wrinkle suggests there is something "private" about sexual matters and this is reflected by public nudity rules. A libertarian might press there, especially given current styles -- New York even struck down a topless ban as gender specific -- but the "right to privacy" that provides personal choice in matters of sex does have a component that guards against unwilling viewing.  OTOH, and Barnes v. Glen Theatre (1991) narrowly divided here even in regard to striptease acts, "private" here shouldn't mean "public accommodations" where willing adults view things in what amount to private viewings.  Such is not the current federal rule though with states allowed to block viewings of films deemed obscene.)

Just what is "obscenity"?  Put aside that something like "lewd" was also covered by some of the language of the early cases.  Roth centered on prurience with an extended footnote (20) fleshing out what that means. Basically, "shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." This wasn't to be decided by isolated passages but taking the work as a whole.  After all, the Bible has various verses that would meet that test.  Still, on a basic level, why is sacrilegious speech protected, but not what amounts to the same thing in another context?  That is, not respecting nudity or sex etc. the right way?  And, traditionally, obscenity was often classified with blasphemy.

[By the 1960s, the Supreme Court also generally treated -- with a few exceptions -- the states and federal governments the same way in respect to the Bill of Rights. Justice Harlan was a basic exception to this trend and in Roth would have put the federal government to a strict test since states traditionally had the duty to regulate morals.  If obscenity regulated the "social interest in order and morality," that was a state duty.  The postal power wasn't enough to broadly block from the whole country something like Peyton Place though maybe individual states can do so.  Note that even this was stricter than the old rules, which stopped the mailing of birth control pamphlets.]

The 1960s was basically a decade when the Supreme Court received a bunch of material and had to decide if it was obscene or not. There was material like Tropic of Cancer and the like that was clearly sexual but what many (but not all, for sure) would deem protected.  The Supreme Court even had to in the early 1970s make sure people knew that the Jack Nicholson film Carnal Knowledge (oral sex) was protected.  But, also various cases had basically what can honestly be deemed standard pornography of the Hustler variety or the like.  They basically eventually said (Redrup v. NY) that if you don't expose it to unwilling viewers or children, it's acceptable, though never firmly said "no limits."

This post-Stanley period is basically where we stepped in. Chief Justice Burger wanted to allow some regulations of sexual materials and had some support (Blackmun replaced more liberal Fortas and Harlan and White already was more open than the liberals on this question).  This was seen by the Court splitting 4-4 (Douglas not taking part because the publisher put out his own writings)  in GROVE PRESS, v. MARYLAND STATE BOARD OF CENSORS (1971) involving the film I am Curious (Yellow), a film I myself saw years ago, the New York Public Library having it available. It is a foreign film that definitely has some sexual scenes and full nudity, but saying it lacked any social value is rather dubious.  It is not just an excuse for sex scenes, having a lot of exposition (tediously so).

We again can push back to the idea obscenity should be an exception here. Why doesn't it have "social value" and (as cited in the true crime case) why is that even an issue?  Justice Stevens basically said this in a post-Miller case (Smith v. U.S.), noting not only do people find the material interesting but there tends to be some people who argue it has social value. There is also a general line drawing problem. Why is a patently stupid and shoddily film that covers the basic ground suddenly a problem if it is deemed as too prurient? Yes, we draw lines all the time, but unlike a threat, we allow people to willingly choose their sexual desires.

Anyway, Stanley protected private ownership (a rule that was never applied to "privately" downloading it at home from online sources).  Griswold v. Connecticut protected private use of contraceptives. Later on, sale was also protected because the specific protection was deemed to involve choosing whether or not to have children. Stanley also referenced the right "to receive" information.  Not wanting to overturn Roth suggested a limit there, but how far? United States v. Reidel (1971) said not any absolute right to receive them in the mail.  Justice Harlan concurred to say the "right to receive" meant in private. The liberal author (Thurgood Marshall) of the Stanley decision noted "the validity of regulatory action taken to protect children and unwilling adults from exposure to materials deemed to be obscene."  That could not totally be guarded against by mail order.

The majority reminded -- as should always be kept in mind here -- that a federal floor does not block more liberal options (including by state constitutional limits):
It is urged that there is developing sentiment that adults should have complete freedom to produce, deal in, possess, and consume whatever communicative materials may appeal to them, and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive, and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts, that basic reassessment is not only wise, but essential. This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments.

What about blocking something as limited as carrying an admittedly obscene book or film home in your luggage for private use?  In a companion case, four justices (including Marshall and Stewart) would not go that far.  A fifth (Harlan) said the matter was not really at issue. The four, however, thought the privacy rights honored by Stanley applied here. A concern about distribution was flagged there too, after all, but was deemed not a strong enough interest to violate the private right to view materials. Material in luggage doesn't threaten unwilling viewers or children.  The Supreme Court however in United States v. 12 200-ft. Reels of Super 8MM. Film (1973) clearly held otherwise.

A clear majority also settled on a test:
(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
As Justice Stevens noted in his dissenting opinion referenced above, Miller v. California set the state of California as the "community" here, a rather diverse collection of individuals. Why should freedom of expression depend on what location you lived in?  Did rules regarding other First Amendment rights work that way?  Other than perhaps the special rules applied to Native Americans (a special category) in regard to religious matters, think not.   Also, the opinion was sure to add that even here only "hard core" materials could be banned. Again, much less than what traditionally was so covered.  A taste in Smith v. U.S.:
The mailings consisted of (1) issues of "Intrigue" magazine, depicting nude males and females engaged in masturbation, fellatio, cunnilingus, and sexual intercourse; (2) a film entitled "Lovelace," depicting a nude male and a nude female engaged in masturbation and simulated acts of fellatio, cunnilingus, and sexual intercourse; and (3) a film entitled "Terrorized Virgin," depicting two nude males and a nude female engaged in fellatio, cunnilingus, and sexual intercourse.
But, again, merely talking about oral sex or some implication it was happening isn't enough (Carnal Knowledge).  It is ultimately to me a silly matter, even if the average case is not going to involve what most people deem serious material. But, why should we allow any number of romance novels with pretty racy scenes (if not as explicit as some of these works) but draw the line at something of the sort there?  Online, you can find some rather graphic sexual fantasies, but why is that a problem for willing adults?  I'm not providing links to all these things, but I covered this in a past entry where Justice Douglas dissented in a case involving a bunch of bondage magazines and the like. Why isn't that "valuable" to willing viewers carrying out their own sexual desires?

The alternative view was seen in a 5-4 case (Kaplan v. California) handed down at around the same time as the Miller settlement. It involved a book and even here we are told that: "A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book's content." The earlier case that brought within the First Amendment's ambit films did not bring forth a clear understanding that films should be treated the same way as books.  The old view that films had a sort of immediacy a book did not, requiring less contemplation, plus subject to viewings with mixed audiences [women going to sports events seemed problematic early on] continued to some degree.  Nonetheless:
For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact. A State could reasonably regard the "hard core" conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions.
The distaste such material had for some also comes out:
It is made up entirely of repetitive descriptions of physical, sexual conduct, "clinically" explicit and offensive to the point of being nauseous; there is only the most tenuous "plot." Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.
Nonetheless, even though the old "utterly no" test was weakened to "no serious" value, that itself was not to be based on the state involved. As reaffirmed in Pope v. Illinois (1987): "
The Court then observed that, unlike prurient appeal and patent offensiveness, literary, artistic, political, or scientific value is not discussed in Miller in terms of contemporary community standards.
So, something can be "prurient" and "patently offensive" by state guidelines, but the judge or jury still needs to take everything into consideration for that third category.  It is somehow hard to tell how much all these tests actually limit juries though analysis over the years do suggest they do in a rough sense try to limit their discretion and judges do as well. So, e.g., in police shooting cases, authors have noted that even if juries wish to convict, they have repeatedly said that they felt compelled not to do so given stricter guidelines in current case law.  All the same, at least along the edges, local taste will influence value determinations.

These days, the rules are fairly well in place, and the courts tend to flesh out details. The Supreme Court does not really handle obscenity cases these days, rejecting in the early 21st Century applying a national test to downloading sexual materials online. One issue that might come up eventually is the question of allowing even "fleeting obscenity" (such as a passing "fuck" in an awards show) on broadcast channels.  Such channels would raise the exposure to children concern though in the "seven dirty words" case (involving the radio), the Court was closely divided.

There are various special questions here but a general rule also that most material will be allowed. Even sexual related material is covered by freedom of expression and at this point any obscenity exception really should be deemed obsolete (if animal crush videos can raise vagueness challenges all but one justice finds compelling, U.S. v. Stevens (2010), let's just seat the deal).  The usual concerns of minors and unwilling viewers remain as concerns.  Also, a basic acceptance of a right to private choice, especially in the home. OTOH, limits might be drawn to guard against publication of selfies deemed private. Close cases can be imagined, including involving public employees felt to have more limits.

Finally, "sexual expression" might be seen as protected as a whole. The oral argument in Lawrence v. Texas spoke in just that terms. Not all stuff depicted should be allowed -- that is part of the point, to examine some forbidden behavior -- in literature and film should be allowed.  But, part of why obscenity is a bad category is that it repeatedly involves legitimate sexual behavior we allow in general.  [We might be concerned about public health when porn is involved but even that is not an issue in book form.]  

No comments:

Post a Comment

Thanks for your .02!