More On The Last Subject

In 1948, in an anti-trust case where the matter was not determinative, the Supreme Court in passing noted that: "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." A few years later. it held that merely the fact a film is "sacrilegious" (in part given its vagueness) could not be reason for a ban. Nor, adultery. And, in the late 1950s it noted that "Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern." Thus, there were limits to what can be declared obscene in the interests of "social interest in order and morality."

But, as covered in detail in the book just referenced, state and federal courts have long held that films can be banned for such interests. The book cites three core concerns that were present since the early days of film: films show subject matter that should be left to the private sphere, if even there, and thus was seen as a violation of Victorian morality. Movie theaters allowed for a mixed audience, who were exposed to a medium that even the most uneducated could easily view in the most "vivid" (to quote an early opinion) way. In the 18th and 19th Century, novels were a similar concern for the emotional appeals, especially to women readers. One early concern here that touched upon both (the photos in the book included shirtless male boxers) were boxing films, repeatedly banned. Finally, the subject matter had the potential to mock authority as well as raise other sensitive subjects. The turning point in the Supreme Court was a short Italian film ("The Miracle") involving illicit sex and sacrilege (an uneducated woman thinks the person is a saint) but right behind it was the "passing" film Pinky, which was dealt with per curiam without an opinion.

The banning of films generally brings to mind obscenity and perhaps dirty words like George Carlin's favorite monologue. But, for over a half-century, a range of topics (including illegal drug use, race issues including the Little Rascals in an integrated classroom and any number of other issues in movie codes) was involved here. For years, though there was some push-back in lower courts (generally from overapplication of statutes regarding what can be banned), a 1915 Supreme Court opinion involving a licensing law even made the general medium not considered worthy of First Amendment protection. The unanimous opinion in the day when the First Amendment did not receive must attention generally did suggest the power of film:

Their power of amusement, and, it may be, education, the audiences they assemble, not of women alone nor of men alone, but together, not of adults only, but of children, make them the more insidious in corruption by a pretense of worthy purpose or if they should degenerate from worthy purpose. Indeed, we may go beyond that possibility. They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. Besides, there are some things which should not have pictorial representation in public places and to all audiences. And not only the State of Ohio, but other states, have considered it to be in the interest of the public morals and welfare to supervise moving picture exhibitions. We would have to shut our eyes to the facts of the world to regard the precaution unreasonable or the legislation to effect it a mere wanton interference with personal liberty.

This suggests a balancing test akin to other cases where free speech was protected up to a point. However:

It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio [and federal] Constitution, we think, as part of the press of the country, or as organs of public opinion. They are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. 

The Supreme Court even the 1910s -- if somewhat in passing -- suggested free expression was a "personal liberty" that warrants some protection. Therefore, in Justice Holmes' famous "clear and present danger" ruling, he noted the speech in question very well might be protected in peace time. He was even going to write a dissenting opinion in a wartime case, but the government got the message that they overreached that time and dropped the prosecution. The Supreme Court (along with other courts -- the book includes many state court opinions over the years though the protection of film still seems a bit abrupt; I think there might have been a few more hints of what was to come) slowly had a more respectful concern for free speech. And, as more and more speech became protected, the idea that film should be an illegitimate child here (they got protection too in the 1960s) was basically absurd. Thus, the 1950s opinions.

The Supreme Court ultimately rejected any number of areas of forbidden content except for obscenity, including animal cruelty, violence against women (in a per curiam reversal), violent video games (even for children) and even virtual child pornography. The test for obscenity for children is somewhat looser, both participants and what can be sold to them. This includes on television and the radio, thus the infamous "seven dirty words" opinion. However, in this day of cable and the Internet, it is unclear of that opinion's staying power. The outer limits of use of real children is probably something of an open question, but minors nude and involved in simulated sex acts has been allowed via European movies shown here. The appropriate limits there are open to debate though much easier to defend than obscenity laws, especially in the day of being able to download them in the privacy of one's own home.

The obscenity exception is to me unconstitutional. The book covers various films such as The Lovers [Les Amants] the film Justice Stewart rightly said "this isn't it" (he later cited a bit clearer test than "I know it when I see it") for which that label is ridiculous. The film deals with an unhappy wife who ultimately has sex with someone not her husband in a montage that is just not very explicit at all -- can't imagine that it could not be shown on broadcast television. But, three justices thought it was okay to criminalize it! Other films (which years ago I borrowed from the NYPL) like I am Curious (Yellow) actually has explicit scenes of sex and nudity but is mostly not sexual in nature -- various judges might have found them dull (it is rather pedantic) and we even had some potshots at the actress (an average looking sort). All the same, considering it "obscene" as in so patently offensive, prurient and lacking in any value to not warrant First Amendment protection is among other things silly.

And, there are a range of other films not very nutritious, let's say, but no reason to ban them. There are and always were films that basically were a means to show people (more often women though as noted one banned film was homosexual in nature) nude (such as the nudist film) and in various types of sexual relationships. Some, much more in recent decades, are rather crude and yes disgusting. Trying to justify the "social value," e.g., of Nazi porn on some level is as silly as arguing The Lovers is obscene. But, as Justice Douglas once said about fetish magazines, why shouldn't this be deemed having some sort of value? The fetishes of the average person are legion and there are a range of complex reasons they are in place.

All the same, simply put, why should the fact material of a sexual nature that turns people on or offends people make it open to prosecution? We do not let offense in other respects for censorship as a general matter. Put aside concerns about keeping nudity private and from unwilling viewers or children. Very early obscenity laws (as seen in Roth v. U.S., which strengthened the protection of sexual speech within limits) overlapped with blasphemy. And, I think that is a key issue here -- sex is deemed sacred on some level and obscenity defames it. But, if vitriolic racist speech is allowed, why not this?  Sex isn't the only thing "patently offensive" and to be though the word often has a sexual connotation, nor is only that "prurient."

Some questions will arise regarding television and showing things to minors that touch upon materials most will agree with serious fare. But, obscenity these days usually amounts to what is basically porn. The line there is hazy -- romance novels are basically a sort of porn, especially if you read some of the scenes involved. Ditto the stuff on soap operas and many television shows, especially on cable. Still, there is a basic line that you can generally see there regarding the stuff you will see late night on Showtime and Cinemax. They show "soft porn" -- basically you will never see cocks, rarely vagina (and Japan be alert, unlike the 1970s, usually shaved, if not always totally) and no actual penetration (I'm actually interested in a book on the average porn shoot myself). There is hard core material but you have to pay extra for that sort of thing.  Well, maybe not online.

Again, putting aside the concerns of penetration (which until recently was often unprotected fornication), what exactly is so much different about the stuff still open to prosecution? The line seems hazy enough that as various justices noted in 1970s cases etc. there is a due process vagueness issue. Either way, what exactly is so much worse here than protected material, granting some of this is rather unpleasant material? OTOH, we remain is some ways a Puritan country, sex taboo in films while we wallow in explicit violence. The book ends with reference to some federal prosecutions in recent years and state attempts at zoning out theaters. The Obama Administration dealt with a few lingering cases but basically did not concern itself with that sort of thing.

I think it should basically be determined that downloading sexual materials (putting aside child porn) is protected in the privacy of one's own home, following the sexual intimacy protections of Lawrence v. Texas combined with Stanley v. Georgia (obscenity protected in the home). We can then concern ourselves with minors, unconsenting/mistreated participants (guidelines regarding AIDS checking and the like is appropriate for movies involving sharing of fluids) and such things as trying to avoid taxation and the like. Worrying about explicit language during the day also seems silly though I'm okay with you know not letting explicit porn on broadcast channels -- figure they have no interest to do that anyways though if they did, people could block the material given current technology.

There is something of an antiquated feel about all of this though again things will arise like what to show children in schools and so on. The basic ability to see sexual materials, however, should be protected. If the Supreme Court can deal with "crush videos" and such, perhaps, it will one of these days more clearly say as much.