--- Wendy Lyon <wendy.lyon at gmail.com> wrote:
> On 5/26/05, andie nachgeborenen
> <andie_nachgeborenen at yahoo.com> wrote:
>
> > 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."
>
> That quote actually derives from Chaplinsky v. New
> Hampshire (315 U.S.
> 568, 1942 - the "fighting words" case)
Quoted, I am sure, in Beauharnais.
and I think
> it's worth reading
> it in context:
>
> "There are certain well-defined and narrowly limited
> classes of
> speech, the prevention and punishment of which have
> never been thought
> to raise any Constitutional problem. These include
> the lewd and
> obscene, the profane, the libelous, and the
> insulting or "fighting"
> words--those which by their very utterance inflict
> injury or tend to
> incite an immediate breach of the peace. It has been
> well observed
> that such utterances are no essential part of any
> exposition of ideas,
> and are of such slight social value as a step to
> truth that any
> benefit that may be derived from them is clearly
> outweighed by the
> social interest in order and morality."
>
> Although obscenity is lumped in here with the other
> (harm-causing)
> types of speech, later decisions seem to play down
> this comparison.
> Roth's citation of this decision removes "by their
> very utterance
> inflict injury or tend to incite an immediate breach
> of the peace"
> (although it does leave the final clause intact).
Well, we agree that there is a distinction, but I think that the Court thought that obscenity is harmful ina apternalistic way at least.
>
> > 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)
>
> Updated by Miller v. California, 413 U.S. 15 (1973),
> a Burger case in
> which Brennan dissented.
And a million other cases, Roth si still good law, more or less.
>
> > 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.
>
> No, by the time they get here they've already
> accepted that
> "obscenity" is unprotected.
No, you misundferstand the point of my citation, which is not to show that the Court here holds taht obscenity is unprotected -- they had decided that in the 1940s -- but to explain why and to defione what is obscene.
It then just leaves
> them to define what
> obscenity is. Miller redefined it as: "(a) whether
> "the average
> person, applying contemporary community standards"
> would find that the
> work, taken as a whole, appeals to the prurient
> interest, (b) whether
> the work depicts or describes, in a patently
> offensive way, sexual
> conduct specifically defined by the applicable state
> law; and (c)
> whether the work, taken as a whole, lacks serious
> literary, artistic,
> political, or scientific value [known as the SLAPS
> test]." All three
> have to apply. So you could have patently
> offensive, prurient
> material which still wouldn't be obscene if it had
> SLAPS value. It's
> only without this value that the material can be
> judged obscene.
I wasn't trying to give the whole standard but to locate what the Court thought was the harm in obscenity, which I take to be its tendency to excite lustful thoughts.
>
> > > When was the last time the Supremes held a work
> to
> > > be obscene, anyway? Out of curiosity.
> >
> > A zillion years ago.
>
> Yeah. I've always thought that the obscenity
> exception was really
> just a CYA ruling.
Didn't used to be. In the 60s and early 70s there were tons of obscenity prosecutions.
A majority of justices have
> wanted to keep the
> option of banning material, just in case ...
>
> > 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 . . . .
>
> One of my professors told us that most of the
> justices had their
> clerks watch the movies, but William O. Douglas
> watched them all
> himself. His implication was that there was
> something more to it than
> a sense of obligation ;)
Hmm, as I recall, The Brethren says that Douglas and Black DIDN'T watch the movies because they knew a priori that porn was protected. The other Justices, if I recall the Brethern, watched the movies themselves, Harlan with the aid of clerk. But I may misremember.
jks
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