It was exactly 37 years ago today that the U.S. Supreme Court, in its ruling in Stanley v. Georgia, affirmed the right of every American to own obscene material ... and with the Bush administration poised to mount another round of obscenity indictments, perhaps it would do some good to take another look at that seminal case.
Stanley v. Georgia still has a lesson or two to teach us – not the least of which is the circumstance under which the case arose in the first place. Seems Robert Eli Stanley was under investigation for bookmaking, which gave federal and state agents cause to obtain a search warrant for Stanley's house. They didn't find any evidence of bookmaking there ... but they did find three reels of eight-millimeter film in an upstairs bedroom, and a projector, which the agents used to view the films. Turns out they were what used to be called "smokers," and the feds decided that they were obscene. Since evidence showed that the bedroom in which the films were found was regularly occupied by Stanley, they busted him for possession of obscene matter.
Lesson: Law enforcement agents don't have to be looking for whatever it is you wind up getting busted for. A more modern example of this is the new §2257 regulation that allows inspectors to seize any evidence of a felony that they might see while inspecting your records.
The government's case in Stanley was built largely on the high court's prior ruling in Roth v. United States, which had been decided 12 years previously. In that case, Roth had been charged with publishing and mailing obscene matter, and in a declaration which itself is interesting in light of the recent revelations contained in the Heritage Guide to the Constitution (see previous story on this site), Justice William Brennan set forth the rationale behind all of today's obscenity law.
"The guaranties of freedom of expressionin effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance," Justice Brennan wrote in Roth. "Thirteen of the 14 States provided for the prosecution of libel,and all of those States made either blasphemy or profanity, or both, statutory crimes.As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass. Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses."
"In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance," Brennan continued. "This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press." [Emphasis added.]
Brennan never provided any sources for this "sufficiently contemporaneous evidence," and considering the strides that have been made in modern Supreme Court decisions to rein in government sponsorship of religious belief, it seems likely that, considered in light of the recognized separation of government and religion, early attempts to link "obscenity" – illegal in only one state – with "blasphemy" and "profanity" (both of which relate solely to mockery or denigration of religion and religious figures) — as colonial Massachusetts did, and which 10 of the original states had made illegal without reference to "obscenity" — the continued persecution of sexual speech is clearly without historical basis and would not (or at least should not) survive modern religion/state constitutional scrutiny.
Lesson: Claims of "tradition" or even "prior settled law" in support of irrational restrictions on constitutional rights should be examined closely.
Even the Stanley court had an inkling of that, since Justice Thurgood Marshall, who authored the Stanley opinion, made it clear that Roth did not foreclose suppression of obscenity in all cases.
"It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment," Justice Marshall wrote in Stanley. "... None of the statements cited by the Court inRoth for the proposition that 'this Court has always assumed that obscenity is not protected by the freedoms of speech and press' were made in the context of a statute punishing mere private possession of obscene material; the cases cited deal for the most part with use of the mails to distribute objectionable material or with some form of public distribution or dissemination.Moreover, none of this Court's decisions subsequent to Roth involved prosecution for private possession of obscene materials..."
"In this context, we do not believe that this case can be decided simply by citing Roth," Justice Marshall continued. "Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections. Neither Roth nor any other decision of this Court reaches that far."
Indeed, "Roth and its progeny" – at least up to 1969 – dealt exclusively with commercial use of "obscene" materials, while Stanley's use was entirely private. In fact, most of the questioning of Stanley's attorney, Wesley R. Asinof, during the argument of the case revolved around whether Stanley had intended to show the movies at a party that apparently had been planned for the evening of the execution of the search warrant, and Asinof stated that not only were the films not intended to be shown, but that Stanley lacked knowledge of their content altogether.
This distinction allowed Justice Marshall to expound on the concept that, "[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man."
In recent legal briefs and argument, we have come to refer to that "right to be let alone" as the substantive due process right of privacy, which Justice Marshall rightly valued, by quoting Justice Louis Brandeis, as "the right most valued by civilized man."
There is, of course, much more to the Stanley decision, and it's worth everyone's time to read the full opinion for him- or herself. Our purpose today is simply to honor that decision as an early bulwark against the attempts by the state, in its blind attempt to establish a certain religious philosophy, to deprive citizens of their rights to intellectual sexual pleasure.
Hmmm ... maybe April 7 should be made an official adult industry holiday.
