From: wdstarr@athena.mit.edu (William December Starr)
Newsgroups: misc.legal
Subject: Justice Brennan (was: Justices refuse to a (1))
Date: 11 Apr 92 13:37:39 GMT
Article-I.D.: athena.1992Apr11.133739.29418
Organization: Northeastern Law, Class of '93


In article <1992Apr8.211719.327@holos0.uucp>, 
lbr@holos0.uucp (Len Reed) said:

> There is no one on the court who is an true free speech advocate.
> Even Brennan voted for (wrote?) the "community standards" ruling.
> Douglas and Black were a long time ago....

It's true that now-retired Justice William Brennan wrote the ruling
that evolved into the "community standards" rule.  It's also true
that he himself renounced it fifteen years later.  Here's an article
I posted a few years ago on the subject:

Newsgroups: misc.legal
From: wdstarr@athena.mit.edu (William December Starr)
Subject: Justice Brennan & Obscenity (a brief history lesson)
Summary: The Roth, Memoirs and Miller standards and
         Justice Brennan's change of heart on the issue (long)

In article <1201@unix386.Convergent.COM>, John Sully said:

> The current flap over the Mapplethorpe exhibit, and The 2 Live Crew
> shows that the current definition of obscenity and the "Miller test"
> is inadequate for the task of defining what falls in the realm of
> protected speech and what does not.
> ...
> When the definition of obscenity can be so easily bent so as to be
> used to suppress legitimate artistic expression it seems clear that
> there can be *no* definition of pornography which can draw a "bright
> line" between what is protected and what is not.  Because of this,
> there can be *no* restriction on pornography.

Interestingly, the man who wrote the Roth standard (the forerunner of
the Miller standard) wound up more or less agreeing with you.  A brief
history lesson in re the modern Supreme Court, Justice William J.
Brennan (appointed by Eisenhower in 1956) and obscenity:

The "Miller" test got its start in 1957 in the Supreme Court decision
in the combined cases of Roth v. U.S. and Alberts v. California.  The
decision was written by Justice Brennan, and included the codification
of what became known as the Roth test:

    ...whether to the average person, applying contemporary community
    standards, the dominant theme of the material taken as a whole
    appeals to prurient interest.

This, by Supreme Court fiat, replaced in many locales the Hicklin
test, a leftover piece of British jurisprudence (Regina v. Hicklin,
1868) which judged obscenity by the effect of isolated passages
(rather than the material as a whole) upon the most susceptible
persons into whose hands the material might fall (rather than the
average person).

In his decision, Brennan also wrote:

    Many decisions have recognized that these terms of obscenity
    statutes are not precise.  This Court, however, has consistently
    held that lack of precision is not in itself offensive to the
    requirements of due process... That there may be marginal cases in
    which it is difficult to determine the side of the line on which a
    particular fact situation falls is no sufficient reason to hold
    the language too ambiguous to define a criminal offense."

Nine years later, in "A Book Named 'John Cleland's Memoirs of a Woman
of Pleasure' v. Attorney General of Massachusetts," 1966 (also known
as "Memoirs v. Massachusetts" or, as the book in question came to be
better known, "Fanny Hill v. Massachusetts"), the Court, in a
plurality judgement which expressed the opinion of the Court and was
supported by Justices Warren, Fortas and our old friend Brennan,
reiterated the applicable obscenity test standards as follows:

    ...Three elements must coalesce: it must be established that (a)
    the dominant theme of the material taken as a whole appeals to a
    prurient interest in sex; (b) the material is patently offensive
    because it affronts contemporary community standards relating to
    the description or representation of sexual matters; and (c) the
    material is utterly without redeeming social value.

Seven years after that, along came "Miller v. California," 1973, in
which the Court, in an opinion written by Chief Justice Burger
(appointed by Nixon in 1969), modified and further refined the Roth
test:

    The basic guidelines for the trier of fact [in obscenity cases]
    must be (a) whether "the average person, applying contemporary
    community standards" would find that the work, taken as a whole,
    appeals to 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.

It should be noted that part (c) was actually a weakening of the
standard set by the Court in "Memoirs v. Massachusetts," in that the
material in question no longer had to be _utterly_ without redeeming
social importance in order to be vulnerable to being judged obscene --
it was now enough that it merely lack "serious" value.  Burger's
Miller ruling also explicitly upheld the use of local "community
standards":

    Under a national Constitution, fundamental First Amendment
    limitations on the powers of the States do not vary from community
    to community, but this does not mean that there are, or should or
    can be, fixed, uniform national standards of precisely what
    appeals to the "prurient interest" or is "patently offensive"...
    to require a State to structure obscenity proceedings around
    evidence of a _national_ "community standard" [emphasis Burger's]
    would be an exercise in futility... Nothing in the First Amendment
    requires that a jury consider hypothetical and unascertainable
    "national standards" when attempting to determine whether certain
    materials are obscene as a matter of fact... People in different
    States vary in their tastes and attitudes, and this diversity is
    not to be strangled by the absolutism of imposed uniformity. 

Now we get to the fun part: later in that same 1973 term, the Court
also issued a decision in "Paris Adult Theater I v. Slaton."  The case
itself is fairly important -- the Court, in another Burger opinion,
ruled that:

    We categorically disapprove the theory... that obscene
    pornographic films acquire constitutional immunity from state
    regulation simply because they are exhibited for consenting adults
    only... This Court has, on numerous occasions, refused to hold
    that commercial ventures such as a motion-picture house are
    "private" for the purposes of civil rights litigation and civil
    rights statutes... The idea of a "privacy" right and a place of
    public accommodation are, in this context, mutually exclusive.

In other words, it was okay for states to regulate, up to and
including the point of shutting down, adult movie houses even if the
operators took great care to ensure that the allegedly obscene
material was only being shown to people who (a) knew in advance what
sort of thing they were going to see and (b) still wanted to see it.
The justification for this state interference, put forth by the state
of Georgia and supported by Burger, was that the state had an interest
in regulating public morality and in protecting it from the alleged
harmful effects of pornography.  Burger held that this was a good
enough reason even in cases, like the one at hand, wherein there
existed no real proof that pornography had a harmful effect -- it was
sufficient that the state _thought_ it did.

The other interesting thing about "Paris Adult Theater," and the point
of this whole article, is what Justice Brennan wrote in his dissenting
opinion -- and remember, it was Brennan who had written the Roth
decision in 1957:

    I am convinced that the approach initiated 15 years ago in Roth v.
    United States... and culminating in the Court's decision today,
    cannot bring stability to this area of law without jeopardizing
    fundamental First Amendment values, and I have concluded that the
    time has come to make a significant departure from that approach. 

    After 15 years of experimentation and debate, I am reluctantly
    forced to the conclusion that none of the available formulas,
    including the one announced today, can reduce the vagueness to a
    tolerable level while at the same time striking an acceptable
    balance between the protections of the First and Fourteenth
    Amendments, on the one hand, and on the other the asserted state
    interest in regulating the dissemination of certain sexually
    oriented materials.  Any effort to draw a constitutionally
    acceptable boundary on state power must resort to such indefinite
    concepts as "prurient interest," "patent offensiveness," "serious
    literary value," and the like.  The meaning of these concepts
    necessarily varies with the experience, outlook and even
    idiosyncrasies of the person defining them.  Although we have
    assumed that obscenity does exist and that we "know it when [we]
    see it," (Jacobelis v. Ohio, 1964, J. Stewart, concurring) we are
    manifestly unable to describe it in advance except by reference to
    concepts so elusive that they fail to distinguish clearly between
    protected and unprotected speech....

Brennan then went on to say that this ambiguity caused two separate
sorts of problems: (1) those related to fair notice (that is, the idea
that fundamental to a fair and due-process-oriented justice system is
the axiom that a citizen will be able to know, in advance of the fact,
whether a contemplated act is criminal) and to the chilling of the
exercise of constitutionally protected speech, and (2) the burden
placed on the judicial system:

    In Roth we conceded that "there may be marginal cases in which it
    is difficult to determine the side of the line on which a
    particular fact situation falls"... Our subsequent experience
    demonstrates that almost every case is "marginal."  And since the
    "margin" marks the point between protected and unprotected speech,
    we are left with a system in which every obscenity case presents
    a constitutional question of exceptional difficulty....

    The number of obscenity cases on our docket gives ample testimony
    to the burden that has been placed upon this Court.

Brennan then examined four possible approaches that could be taken:

(1) Draw new, explicit, definitions of "obscene" and stick with them.
Unfortunately:

    In my view, clarity cannot be obtained pursuant to this approach
    except by drawing a line that resolves all doubts in favor of
    state power and against the guarantees of the First Amendment...
    such a standard would be appallingly overbroad, permitting the
    suppression of a vast range of literary, scientific, and artistic
    masterpieces.  Neither the First Amendment nor any free community
    could possibly tolerate such a standard.  Yet short of that
    extreme, it is hard to see how any choice of words could reduce
    the vagueness problem to tolerable proportions, so long as we
    remain committed to the view that some class of materials is
    subject to outright suppression by the State.

(2) Do what the Court has done in its opinion of the day: leave the
present set of definitions in place and keep trying to muddle through.

(3) Make the assumption that juries are better qualified than judges
in these matters and that therefore "jury verdicts in this area should
not be set aside except in cases of extreme departure from prevailing
standards."  However:

    Far from providing a clearer guide to permissible primary conduct,
    the approach would inevitably lead to even greater uncertainty and
    the consequent due process problems of fair notice... Plainly, the
    institutional gain would be more than offset by the unprecedented
    infringement of First Amendment rights.

(4) Take the approach urged by Justices Black and Douglas in their
1957 dissenting opinion in Roth and rule that the First Amendment
plainly and simply bars the suppression of any sexually oriented
expression:

    That position would effect a sharp reduction, though perhaps not a
    total elimination, of the uncertainty that surrounds our current
    approach.  Nevertheless, I am convinced it would achieve that
    desirable goal only by stripping the States of power to an extent
    that cannot be justified by the commands of the Constitution, at
    least so long as there is available an alternative approach that
    strikes a better balance between the guarantee of free expression
    and the States' legitimate interests.

And at this point Brennan tackled the question of the legitimacy of
those interests and reached his conclusion:

    ...The effort to suppress obscenity is based on unprovable, though
    strongly held, assumptions about human behavior, morality, sex and
    religion.  The existence of these assumptions cannot validate a
    statute that substantially undermines the guarantees of the First
    Amendment... Even a legitimate, sharply focused state concern for
    the morality of the community cannot, in other words, justify an
    assault on the protections of the First Amendment... Where the
    state interest in the regulation of morality is vague and
    ill-defined, interference with the guarantees of the First
    Amendment is even more difficult to justify.

    In short, while I cannot say that the interests of the State --
    apart from the questions of juveniles and unconsenting adults --
    are trivial or nonexistent, I am compelled to conclude that these
    interests cannot justify the substantial damage to constitutional
    rights and to this nation's judicial machinery that inevitably
    results from state efforts to bar the distribution even of
    unprotected material to consenting adults... I would hold,
    therefore, that at least in the absence of distribution to
    juveniles or obtrusive exposure to unconsenting adults, the First
    and Fourteenth Amendments prohibit the state and federal
    governments from attempting wholly to suppress sexually oriented
    materials on the basis of their allegedly "obscene" contents.

Of course, this was a _dissenting_ opinion, carrying no legal weight
whatsoever.  Nonetheless, it is a very interesting stance to be taken
by the same man who formulated the foundation of the nation's
obscenity standards in the first place.
-- 
William December Starr <wdstarr@athena.mit.edu>
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