An item
relating to the 21st June 1973 has attracted my attention and caused
me to ponder.
The
things we write usually reflect the things we think and say. Our ability to think
and say what we like is one of our most fundamental freedoms. Indeed, so much
so that the very first amendment of the United States Constitution specifies
the right to think, say and report whatever we like and to call upon the State
to protect that right.
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances.
These
rights and freedoms are not exclusive to the United States, and the
constitution is not the first document to attempt to enshrine them in law.
These rights are accepted by all civilised societies as having the force of
law; however, they are under constant challenge. In particular the right of
free speech and all that entails, e.g. the publication of the ‘speech’.
In the
course of this ponder, I came across one William Lloyd Garrison who stated:
 |
| Garrison |
"He who opposes the public liberty
overthrows his own." Garrison was a
prominent American abolitionist, journalist, and social reformer. He is best
known as the editor of the abolitionist newspaper The Liberator, and was one of the founders of the American
Anti-Slavery Society, he promoted "immediate emancipation" of slaves
in the United States. Garrison was also a prominent voice for the women’s
suffrage movement. In the first issue of The
Liberator, Garrison stated:
I am aware that many object to the severity
of my language; but is there not cause for severity? I will be as harsh as
truth, and as uncompromising as justice. On this subject, I do not wish to
think, or to speak, or write, with moderation. No! No! Tell a man whose house
is on fire to give a moderate alarm; tell him to moderately rescue his wife
from the hands of the ravisher; tell the mother to gradually extricate her babe
from the fire into which it has fallen; – but urge me not to use moderation in
a cause like the present. I am in earnest – I will not equivocate – I will not
excuse – I will not retreat a single inch – AND I WILL BE HEARD. The apathy of
the people is enough to make every statue leap from its pedestal, and to hasten
the resurrection of the dead.
There are things to shout about!
A short
while ago I commented: it is
unfortunate that in order to preserve the liberties we have, one must at times
side with what may be reprehensible; but, the reprehensible usually has a way
of exposing itself in the long run. It is certainly better and healthier to
defend the principles of freedom and justice for all individuals, than for the
state to imprison, crush or kill the innocent. And so we come to the vexed
question of obscenity and censorship.
On
the 21st June 1973, in handing down the decision in Miller v. California 413 US 15, the
Supreme Court of the United States establishes the Miller Test for obscenity in
U.S. law. The following material is, I believe, worth a read.
The appellant, Marvin Miller, operator
of one of the West Coast's largest mail-order
businesses
dealing in pornography, had conducted a mass mailing campaign to advertise the sale of illustrated books, labelled
"adult" material. Miller was convicted by the Superior Court of Orange County, California (the state trial court) of having violated California Penal Code 311.2 by mailing unsolicited sexually
explicit material in violation of a California statute that fulfilled the criteria
of the obscenity test formulated in the previous similar case of Memoirs v.
Massachusetts. The jury was instructed to analyse California’s community
standards of obscurity. The appellant’s case was affirmed on appeal. The
content that was mailed was confirmed to be sexually explicit. It was found
that the work, as a whole, did not have any serious literary, artistic,
political, or scientific value and therefore did not obtain the protection of
the first amendment (freedom of speech). This was considered a misdemeanour,
by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice Warren Burger's
majority opinion, the
Appellant's conviction was specifically based on his conduct in causing
five unsolicited advertising brochures to be sent through the mail in an
envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the
manager of the restaurant and his mother. They had not requested the brochures
and complained to the police.
According
to the Court's decision, the materials in question primarily... consist[ed]
of pictures and drawings very explicitly depicting men and women in groups of
two or more engaging in a variety of sexual activities, with genitals often
prominently displayed. Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had
struggled to define what constituted constitutionally unprotected obscene
material. Under the Comstock laws that prevailed before Roth,
articulated most famously in the 1868 English case
Regina v.
Hicklin, any material that tended to "deprave and corrupt
those whose minds are open to such immoral influences" was deemed
"obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert,
James Joyce,
and D. H. Lawrence were banned based on isolated passages and the
effect they might have on children. Roth repudiated the Hicklin test
and defined obscenity more strictly, as material whose "dominant theme
taken as a whole appeals to the prurient interest" to the "average person, applying
contemporary community standards." Only material now meeting this test
could be banned as "obscene."
Hugo Black and William O.
Douglas, who were First Amendment
literalists, chafed at the Roth test and argued vigorously
that the First Amendment protected obscene material. In subsequent cases the
Court encountered tremendous difficulty in applying the Roth test, which did
not define what it meant by "community standards." For example, in
the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the
showing of a French film called Les Amants (French for The Lovers), the Court ruled
that the film was protected by the First Amendment, but could not agree as to a
rationale, yielding four different opinions from the majority, with none
garnering the support of more than two justices, as well as two dissenting
opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart,
holding that Roth protected all obscenity except "hard-core
pornography," famously wrote, "I shall not today attempt further to
define the kinds of material I understand to be embraced within that shorthand
description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in
this case is not that."
In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality
of the Court further redefined the Roth test by holding unprotected only
that which is "patently offensive" and "utterly without
redeeming social value," but no opinion in that case could command
a majority of the Court either, and the state of the law in the obscenity field
remained confused.
Pornography and sexually oriented publications proliferated as a result
of the Court's holdings. The Sexual
Revolution of the 1960s flowered, and pressure increasingly came to
the Court to allow leeway for state and local
governments to crack down on obscenity. During his ill-fated bid to
become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by
conservatives such as Strom Thurmond for siding with the Warren Court majority in
liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon
campaigned against the Warren Court, pledging to appoint strict constructionists to the Supreme Court.
Chief
Justice Warren Burger came to the Court in 1969 believing that the
Court's obscenity jurisprudence was misguided and governments should be given
more leeway to ban obscene materials. In consideration of Miller in May
and June 1972, Burger pushed successfully for a looser definition of
"obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth
and Memoirs tests should be abandoned, led the charge for protecting all
"obscenity" unless distributed to minors or exposed offensively to
unconsenting adults. Decision of the case was contentious, and Miller was put
over for reargument for October term 1972, and did not come down until June
1973, with Burger prevailing by a bare 5-4 vote.
The question before the court was whether the sale and distribution of
obscene material was protected under the First Amendment's guarantee of Freedom of
Speech. The Court ruled that it was not. It indicated that
"obscene material is not protected by the First Amendment", specially
that of hardcore pornography, thereby reaffirming part of Roth.
However, the Court acknowledged "the inherent dangers of
undertaking to regulate any form of expression," and said that "State
statutes designed to regulate obscene materials must be carefully
limited."
The Court, in an attempt to set such limits, devised a set of three
criteria which must be met in order for a work to be legitimately subject to
state regulation:
1.
whether the average person, applying
contemporary community standards (not national standards, as some prior tests
required), would find that the work, taken as a whole, appeals to the prurient
interest;
2.
whether the work depicts or describes, in a patently
offensive way, sexual conduct or excretory functions specifically
defined by applicable state law; and
3.
"whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."
This obscenity test overturns the definition of obscenity set out in the
Memoirs decision, which held that "all ideas having even the
slightest redeeming social importance . . . have the full protection of the
guaranties [of the First Amendment]" and that obscenity was that which was
"utterly without redeeming social importance."
The Miller
decision vacated the Superior Court of California Appeals Court decision and
remanded the case to that Court for further proceedings consistent with the
First Amendment standards established by the opinion.
Miller provided states greater freedom in prosecuting alleged
purveyors of "obscene" material because, for the first time since
Roth, a majority of the Court agreed on a definition of "obscenity."
Hundreds of "obscenity" prosecutions went forward after Miller,
and the Supreme Court began denying review of these state actions after years
of reviewing many "obscenity" convictions (over 60 appeared on the
Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller,
Paris Adult Theatre I v. Slaton, provided states with
greater leeway to shut down adult movie
houses. Controversy arose over Miller's "community standards"
analysis, with critics charging that Miller encouraged forum shopping
to prosecute national producers of what some believe to be
"obscenity" in locales where community standards differ substantially
from the rest of the nation. For example, under the "community
standards" prong of the Miller test, what might be considered
"obscene" in Massachusetts might not be considered "obscene" in Utah, or the
opposite might be true; in any event, prosecutors tend to bring charges in
locales where they believe that they will prevail.
The "community standards" portion of the decision is of
particular relevance with the rise of the Internet, as materials believed by
some to be "obscene" can be accessed from anywhere in the nation,
including places where there is a greater concern about "obscenity"
than other areas of the nation.
In the years since Miller, many localities have cracked down on
adult theatres and bookstores, as well as nude dancing, through restrictive
zoning ordinances and public nudity laws. These types of actions have been upheld by
the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child
pornography is unprotected by the First Amendment, upholding the
state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition case, however, the Court
held that sexually explicit material that appears to depict
minors might be constitutionally protected.
In American Booksellers Foundation for Free Expression v. Strickland,
plaintiffs American Booksellers Foundation for Free Expression, joined by
various publishers, retailers, and web site operators, sued Ohio’s Attorney
General and Ohio county prosecutors in United States District Court for the
Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code
§2907.01(E) and (J), which prohibited the dissemination or display of
“materials harmful to juveniles,” unconstitutionally violated both the First
Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically
challenged the statute's definition of "harmful to juveniles," as
well as the provisions governing internet dissemination of those materials. The
court held the statute unconstitutional because the statute's definition of
"material harmful to minors" did not comply with Miller.
Defendants appealed the decision to the Sixth Circuit.
To be utterly without redeeming social importance is pretty damning stuff.
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