--- Wendy Lyon <wendy.lyon at gmail.com> wrote:
> On 5/26/05, andie nachgeborenen
> <andie_nachgeborenen at yahoo.com> wrote:
> >
> > However, the courts ("our masters") are the
> > interpreters of the law, not Shane, and they have
> read
> > "freedom of speech" to include most speech except
> > those in four unprotected categories, matter:
> > defamation (libel and slander), incitement to
> illegal
> > activity, obscenity, and "fightin' words" (which
> last
> > is essentially obsolete).
>
> There's a crucial difference between obscenity and
> the other three
> categories, though. The other three are not
> protected because of the
> harms that result from them. Obscenity's lack of
> protecation has
> nothing to do with any such harms; it simply isn't
> held to be *worth*
> the Constitution's protection.
Hmm, I dunno, I think that obscenity was thought to be harmful. In Beauharnais v. Illlinois, 343 US 250 91956), the Court said that any bernefit that might be derived from obscene spoeech was "clearly outweighed by the social interest in order and morality." Id. at 266. The Court cited Prof. Zacaharia Chafee (A famous First Amendmemt advocate) who said that obscenity is punishable "because of their immediate consequences to the five senses." Given that the test in Roth v. United States, 354 US 476 (1957), still the core case, far as I know (a Brennan case, btw), defines obscenity as speech that, amomng other things, is "appealing to prurient interest" (merely), id. at 487, or having a "tendency to excite lustful thoughts," id. at 487 n.20, it seems that the Court thinks that the caustion of (merely) lustful thoughts that are otherwise lacking in social value, i.e., stuff that is merely designed to make you hard or wet, depending on your equipment, is a harm. Of course, some of us might think that it is a good, not a harm.
So it's easy enough
> for those of us
> who think the Supreme Court is wrong on this issue
> to do so without
> worrying about any slippery slope toward legalising
> solicitation of
> murder. Obscene speech could easily be protected
> with the exception
> for harm-causing speech kept intact.
Sure, and the idea involved in saying that causing lustful thoughts is a hatm is paternalistic in a way that the other forms of harmful speech are not. Defamation, incitement, and fightin' words laws are designed to protect _others._ The problem with lustful thoughts is that they happen to you. If that's a problem. Me, I think it's a very nice thing. Whatcha doin after work, kiddo?
>
> When was the last time the Supremes held a work to
> be obscene, anyway?
> Out of curiosity.
A zillion years ago. Even the Rehnquist Court held that nude dancing was "barely" protected as expressive activity.
If you want some funny stories about the obscenity cases, read Woodward & Bernstein's The Brethern. My fave is about Justice Harlan's law clerks. Harlan was very mypoic, but felt obliged to watch what used to be called "blue" movies to determine if they were obscene. He could not really see the screen. so his law clerk had to sit beside him and describe the action to the Justice. Can you imagine? How I spent my year clerking on the Supreme Court . . . .
jks
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