[There are some oral arguments this week including the power of the feds to bar a trademark of "fuct" with today's orders not really adding much.]
Let's focus a bit more on Stanley v. Georgia specifically.
The facts pop up in multiple cases: the police for some reason (here alleged bookmaking) enter a home (or seize a person/thing) and some other invasion of privacy arises. Both Bowers v. Hardwick and Lawrence v. Texas, e.g., involved police coming into a residence for some reason (mistake arising from a warrant to appear or some complaint that appears to be false in some fashion) and seeing (or maybe, per one book, seeing) two men involved in sexual acts. The seminal case that applied the exclusionary rule for search warrants to the states (Mapp v. Ohio) ultimately involved possession of obscenity obtained while police were there for another reason. Ditto here: the police viewed some movies found while there for another reason.
Justice Stewart in Mapp would have held that mere possession of the material would have violated the First Amendment and an actual majority of the state lower court did too (but a supermajority was necessary). In Stanley, a few justices (led by Stewart) would have relied on the Fourth Amendment (the warrant was for gambling materials; they seized and watched film). But, taking a back-up argument some justices felt was not properly briefed, Mapp v. Ohio relied on the police violating her privacy, some "right to privacy" repeatedly referenced. It cited an earlier case that did not apply the exclusionary rule to the states:
Griswold argues that various constitutional amendments involve a right to privacy (e.g., a right to association growing out of First Amendment provisions was held to include some zone of privacy). It provides various citations to show how the Supreme Court recognized different aspects of some right to privacy. Two that also pop up in Stanley were Breard v. Alexandria (limits to door to door sales upheld) and Public Utilities Comm'n v. Pollak (radio broadcasts on public transportation upheld). In both cases, some right to privacy of the home was at least assumed for sake of argument. Breard, e.g., cited a top free speech advocate arguing that one reason to regulate free speech was to protect the "freedom of the home." Justice Douglas' dissent in the second case fleshes out a constitutional right to privacy, but even the majority assumed (as compared to a streetcar), there was some right to privacy protecting against nvasion of the home. The seeds were planted.
"He is asserting the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home." A famous dissent, now in effect the law of the land, honoring of a constitutional right to privacy was cited. The specific application here was "a right to read or observe" (a stag film basically at issue here) but a broader principle is also cited, "the right to satisfy his intellectual and emotional needs." Some form of this survived Miller v. California, which in effect drew the line between the home and the public sector.
A broader protection is warranted if we truly protect the full breadth of the principles involved. A "right to receive" should entail what amounts to private mail order for personal viewing. As noted last time, Griswold was applied to the sale of contraceptives. And, in Lawrence v. Texas, which broadly protected sexual intimacy, started this way:
The case here does specifically have an express First Amendment dimension but privacy rights repeatedly do, if sometimes more tangentially. As I said, sometimes the term "sexual expression" is used. And, sexual materials are more broadly used for a range of reasons, including in relationships with other people. There is sometimes a concern for some open-ended term not expressly found in the Constitution, but privacy hits upon a key component. There is a reason I have spoken so much about it, including Griswold specifically, over the years here.
Privacy is a broader "liberty" that arises in various contexts.
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* Justice Stewart wrote Katz, but he continuously rejected some general constitutional right to privacy (he concurred in Roe v. Wade, accepting it on precedent though dissented in Griswold). He recognized zones of privacy as well as the general power of the government to protect it, including by tort suits in libel and invasion of privacy cases. A few justices that joined Griswold in fact balanced things in privacy's favor in Time v. Hill.
The various ways the law can protect privacy, including by affirmative protections such as "do not call" lists and the like, is important to understand to get a full sense of the matter.
Let's focus a bit more on Stanley v. Georgia specifically.
The facts pop up in multiple cases: the police for some reason (here alleged bookmaking) enter a home (or seize a person/thing) and some other invasion of privacy arises. Both Bowers v. Hardwick and Lawrence v. Texas, e.g., involved police coming into a residence for some reason (mistake arising from a warrant to appear or some complaint that appears to be false in some fashion) and seeing (or maybe, per one book, seeing) two men involved in sexual acts. The seminal case that applied the exclusionary rule for search warrants to the states (Mapp v. Ohio) ultimately involved possession of obscenity obtained while police were there for another reason. Ditto here: the police viewed some movies found while there for another reason.
Justice Stewart in Mapp would have held that mere possession of the material would have violated the First Amendment and an actual majority of the state lower court did too (but a supermajority was necessary). In Stanley, a few justices (led by Stewart) would have relied on the Fourth Amendment (the warrant was for gambling materials; they seized and watched film). But, taking a back-up argument some justices felt was not properly briefed, Mapp v. Ohio relied on the police violating her privacy, some "right to privacy" repeatedly referenced. It cited an earlier case that did not apply the exclusionary rule to the states:
The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in "the concept of ordered liberty" and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.The limited rule here is that the 4A sets forth certain rules that must be followed but the opening sets forth a broader rule. Mapp also broadly spoke of "the enforceability of the right to privacy against the States" and served as a logical bridge to Griswold v. Connecticut. The sole footnote referenced an earlier case that cited a 18th Century case deemed the basic core of the Fourth Amendment. The "essence" of the principles of the case "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life." Thus, protecting use of contraceptives by married couples in one's own home fell under the constitutional right to privacy even if police in that case did not specifically invade the home without a warrant.
Griswold argues that various constitutional amendments involve a right to privacy (e.g., a right to association growing out of First Amendment provisions was held to include some zone of privacy). It provides various citations to show how the Supreme Court recognized different aspects of some right to privacy. Two that also pop up in Stanley were Breard v. Alexandria (limits to door to door sales upheld) and Public Utilities Comm'n v. Pollak (radio broadcasts on public transportation upheld). In both cases, some right to privacy of the home was at least assumed for sake of argument. Breard, e.g., cited a top free speech advocate arguing that one reason to regulate free speech was to protect the "freedom of the home." Justice Douglas' dissent in the second case fleshes out a constitutional right to privacy, but even the majority assumed (as compared to a streetcar), there was some right to privacy protecting against nvasion of the home. The seeds were planted.
Moreover, in the context of this case - a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home - that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.Again, Stanley v. Georgia ultimately relied on some right to possess obscenity in the home, limiting the previously accepted idea that the government had some power to criminalize or civilly seize obscenity. The case did not merely rest on the First Amendment and (as discussed last time) its "right to receive" language in particular was basically limited to its facts. Merely carrying material in your luggage could get you in trouble, even though the Fourth Amendment protects personal effects too. In fact, the Supreme Court in Katz v. U.S. shortly before our case here held a right to privacy over communication in a public phone booth.*
"He is asserting the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home." A famous dissent, now in effect the law of the land, honoring of a constitutional right to privacy was cited. The specific application here was "a right to read or observe" (a stag film basically at issue here) but a broader principle is also cited, "the right to satisfy his intellectual and emotional needs." Some form of this survived Miller v. California, which in effect drew the line between the home and the public sector.
A broader protection is warranted if we truly protect the full breadth of the principles involved. A "right to receive" should entail what amounts to private mail order for personal viewing. As noted last time, Griswold was applied to the sale of contraceptives. And, in Lawrence v. Texas, which broadly protected sexual intimacy, started this way:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.Discussions of the Bowers, which in the 1980s went the other way 5-4, show the importance of Stanley v. Georgia there too. Justice Marshall behind the scenes thought the protection of the home there applied in this case as well. Justice Blackmun's dissent recognized the point. The majority made it a First Amendment case, but the principle set forth was more open-ended as suggested by it citing a dissent from a Fourth Amendment case and the privacy language itself cited in Eisenstadt v. Baird, involving contraceptives. There is basically a broad right to privacy, the flipside of a public sector that is open to much more regulation.
The case here does specifically have an express First Amendment dimension but privacy rights repeatedly do, if sometimes more tangentially. As I said, sometimes the term "sexual expression" is used. And, sexual materials are more broadly used for a range of reasons, including in relationships with other people. There is sometimes a concern for some open-ended term not expressly found in the Constitution, but privacy hits upon a key component. There is a reason I have spoken so much about it, including Griswold specifically, over the years here.
Privacy is a broader "liberty" that arises in various contexts.
---
* Justice Stewart wrote Katz, but he continuously rejected some general constitutional right to privacy (he concurred in Roe v. Wade, accepting it on precedent though dissented in Griswold). He recognized zones of privacy as well as the general power of the government to protect it, including by tort suits in libel and invasion of privacy cases. A few justices that joined Griswold in fact balanced things in privacy's favor in Time v. Hill.
The various ways the law can protect privacy, including by affirmative protections such as "do not call" lists and the like, is important to understand to get a full sense of the matter.
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