Movie Day at the Supreme Court:
I was reminded recently of this remarkable story, from Woodward & Armstrong's excellent The Brethren. During the late 1960s and early 1970s, the Court's obscenity doctrine essentially called for case-by-case Supreme Court decisionmaking about whether various films were obscene. Those Justices who took this view therefore watched the movies, together with the clerks. Here's one item that stuck in my head:
During his later years, Harlan [who was by then nearly blind -EV] watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would describe the action. "By Jove," Harlan would exclaim. "Extraordinary."
One of my law school professors was a clerk in those days. He once casually described the occasional movie screenings as the highlight of some clerks' week. Many years later, I still recall how jarring this naive, idealistic law student found this minor insight into Supreme Court jurisprudence.
(and since you asked, yes, I long ago overcame the disease of naive legal idealism. Thanks for asking).
Hope I'm remembering that right; Heaven help us if I got that from somewhere else.
The Supreme Court's current common-law approach, where the jury determines obscenity based on standards the Justices set, is an improvement over the court-as-board-of-censorship approach. But the court should get out of the business of setting standards entirely.
Yet evidently the justices did not fear any harm for themselves or their clerks.
Did they think that obscenity is harmful only to "lower" minds than their own?
Also, following up on Rufus's comment, the picture had the justices engaged in various illicit acts, with one justice (I think Brennan) with his back to the viewer and having his overcoat completely open while facing a bunch of kids. The justice thought this meant he was shielding the eyes of the children from the acts of the other justices, instead of flashing them.
The last one I remember is the story about some truly hardcore porno movie where at the very end a nude woman stands up in converible car and gives a brief lecture on the merits of capitalism versus communism. That had to be hilarious.
Yet evidently the justices did not fear any harm for themselves or their clerks.
Not necessarily so. They may have felt harmed by the experience but nonetheless bound by duty to experience it. I once had to prosecute a child pornography case. That requires reviewing the images at issue and presenting them to the jury. That's not easy for anyone involved (to put it mildly) but there's no other way to do it. I can't imagine the toll it must take to be one of the law enforcement investigators who deals with that stuff on a full-time basis, having to try to track down images and videos and link them to individual victims. It scars the soul.
They probably thought that they were just taking one for the team, as it were.
Utter poppycock.
The human mind is capable of processing such images and passing judgment upon them without suffering any irreversible damage. Additionally, people are responsible for their own actions. The decision to commit a sexual assault is quite independent from the decision to view pornographic images.
If some viewers are so profoundly affected by such images, they should seek psychiatric help rather than lobbying the coercive power of government to ban the images from others.
Big government intrudes into the lives of others most when the public consensus is that people are weak and fragile, rather than capable and resilient.
Our view of humanity is directly related to the freedoms we enjoy or surrender.
1) only the Supreme Court decides what is obscene, so the Supreme Court must watch porno movies to draw the lines for the rest of society. (clearly absurd)
2) Noone should decide what is obscene other than the viewer himself. (clearly absurd, even though most of you agree with it).
3) Local authorities should decide what is obscene (Whether local judges, local sheriffs, local legislatures, or whatever). NOT clearly absurd-in fact, this is probably the standard method of enforcing community standards (for example: different communities have different blue laws: live sex shows are/were legal in certain cities-I assume New York-and not in others-take for example Des Moines, Iowa.)
Here, it is naturally assumed that 2) is the right and only way to go. As usual when discussing censorship issues, it becomes necessary to remind everyone that virtually everybody favors censorship-we simply have different standards/lines that we want to draw.
Most of us support the censorship of child pornography (I assume).
Most of us support the censorship of snuff films (I assume).
Most of us don't support the censorship of obscene sexual content (though many fundamentalist would, I assume support it).
Many of us support the censorship of the use of certain words (whether 'fighting words' or 'hate crime').
The current law of the land supports the censorship of certain political speech at certain times (immediately before an election).
Whatever groups you associate yourselves with has very little to do with the constitution, or your own idealistic beliefs in human freedom. You just have a different set of censorship lines that you subscribe to than those you disagree with. In other words, the difference between a fundamentalist opposed to pornography and a libertarian* n support of it is not one of principle: its one of taste (libertarians simply like having a society with porn, fundamentalists don't).
Sk
*the one exception would be the first amendment absolutist (he supports porn, fighting words, hate speech, child pornography, snuff films, and whatever else you can think of). Very few of them exist. But they genuinely do have a principled view of censorship.
The libertarian opposition to kiddie porn and snuff -- at least mine -- has nothing to do with the content or effects of the speech, and everything to do with the fact that people are harmed in a very real way in its production.
So I reject the suggestion that my support for kiddie porn and snuff bans and my opposition to other forms of censorship is merely a matter of line drawing, or "degrees" of censorship. It's a difference in kind.
The Supreme Court has justified obscenity laws as promoting "the social interest in order and morality," but it does not view obscenity as harmful to particular individuals who see it or read it. And how could it, in view of the fact that the same material may be deemed obscene in one community and not in another? Obscenity is the only exception to the First Amendment that is not based on the harmfulness of the speech, and there is simply no excuse for holding it unprotected. The notion that a community, as represented by a jury, may decide to ban speech that it finds offensive flies in the face of the First Amendment, which exists to prevent the majority from censoring what it dislikes. Furthermore, the Miller test is incoherent in requiring that a publication simultaneously appeal to the prurient interest of, and be patently offensive to, one and the same community. As Kathleen M. Sullivan put it, the first two prongs of the Miller test "require the audience to be turned on and grossed out at the same time." In addition, because a publisher cannot know, until the jury returns its verdict, whether his publication is obscene, the Miller test denies defendants notice of when they commit a crime, which, in any other context, would be a clear violation of due process.
I have to believe that there are a certain percentage of women who have made pornographic movies when they are 19-20 y/o and feel quite distrubed by it five or ten years later. I seem to recall a recent story of a woman who had to resign her job as a teacher due to the school district somehow finding out about her past role in a porno. Hey I am all for doing your own thing as long as it doesn't hurt anyone else but there are consequences for actions taken which may not be obvious at the time.
Thanks.
So MacKinnon and Dworkin were libertarians after all I guess. Honestly, it just doesn't seem that radical these days, for all of the cries of omg cenzorship111!!!1! In law school I was always surprised that my professors spoke so highly of MacKinnon but rethinking it, a civil action isn't that crazy.
If I recall correctly, it was a cartoon in the National Lampoon. Justice Blackmun asked his clerks something to the effect of "What on earth am I doing to that kangaroo?" The clerks drew straws to determine who had to tell him he was sodomizing it.
The book also contains about 3 pages on Bivens v. Six Unknown Named Agents, although that case was not First Amendment.
Those were the two highlights I still remember from reading said book, now quite some years ago.
With that sweeping blanket assertion, I am just obliged to paste blocks, verbatim:
[Extremely long block quote deleted. Folks, have a sense of proportion -- if you're posting something ten times longer than what other people are posting, (a) it discourages others from posting more on the thread, and (b) what are the chances that anyone will actually read beyond the second paragraph? -EV]
I submit that it is one's perspective and sense of proportion that guage one's very sanity. The artist is one usually much centered in perspective and sense of proportion.
My eagerness to throw out tomes at the topic to get them into comprehension clutters your interests of preserving your orderly blog which is of a more generalist interest, than just the instant topic.
Of course, there's tons more where that came from. They just rarely get entered into evidence, so the laws grow ever-more one-sided. Here links another well-written essay on how morals laws tend to be created from whole cloth, albeit from across the pond.
I trust the topic will present itself again on your blog and I will endeavor to crunch the several long blocks you deleted to their salient points for easier and less time-consuming reading by those whose interests perhaps span other topics as well.
Maybe that is your clue that it's not quite so clear as you assume it to be.
As for "social order," that's the last (or first) resort of the reactionary, and of anyone else bereft of an actual argument.
Thanks."
Sure.
If you are honest with yourself with respect to censorship issues, you are a hypocrite*.
Sk
*Unless you are a bona fide free speech absolutist, in which case you are insane.
P.S. I am not a bona fide free speech absolutist.
We know the mathematical formula for entropy, Ludwig Boltzmann gave us S = k. log W
That explains the slippery slope, it explains the decay of free speech rights, it explains censorship. Where then is the mathematical ostrich-with-its-head-in-the-sand formula or the three monkeys covering eyes, mouth and ears, formula, for less-is-more? Perhaps those never born into freedom, having never known liberty, won't miss it.
Some people prefer slam-dunk laws and cases where only the prosecutor is allowed to present his case. Yet the very nature of law now frequently consists of outright fraud and lies and deceit in order to enact terrible and draconian punishments for what once was free. The same mindset recently tried to usher in English only, flaunting less-is-more. While it is true that in art there is beauty in economy, to outlaw that speech which proves the laws wrong, wreaks of the unconscionable.
As a recent example, a commentor here several threads back, asserted as fact, that pedophiles are simply attracted to children, with no preference to gender. Many people simply carry those opinions that they are spoon-fed, why should they not, how do they know otherwise? In this case, the web sites which were once free on the web, were divided into girl-lover sites and boy-lover sites.
I remember reading one of DoJ IG Glenn Fine's reports that used a number of these terms in one sentence. I took that sentence and ran it in Google as an exact string, to see what other similar police reports came up. The US Attorney General immediately demanded that Google and the other search engine companies surrender their search records over to the government.
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