Supreme Blunders

ROTH v. UNITED STATES

Here the supreme court is hearing constitutional objections to 18 U.S.C. 1461 and 311 of West's California Penal Code Ann on 1^rst amendment grounds. Both statues criminalize speech on obscenity grounds.

“The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute 1 violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code 2 invade the freedoms of speech and press as they may be incorporated in [354 U.S. 476, 480]   the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

Other constitutional questions are: whether these statutes violate due process, 3 because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter (raised in Alberts).”

Justice Brennan outlines constitutional question facing the court.

“The dispositive question is whether obscenity is utterance within the area of protected speech and press. 8 Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U.S. 727, 736 -737; United States v. Chase, 135 U.S. 255, 261 ; Robertson v. Baldwin, 165 U.S. 275, 281 ; Public Clearing House v. Coyne, 194 U.S. 497, 508 ; Hoke v. United States, 227 U.S. 308, 322 ; Near v. Minnesota, 283 U.S. 697, 716 ; Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572; Hannegan v. Esquire, Inc., 327 U.S. 146, 158 ; Winters v. New York, 333 U.S. 507, 510 ; Beauharnais v. Illinois, 343 U.S. 250, 266 . 9   [354 U.S. 476, 482]”

Here the court seeks to establish precedent. In Ex parte Jackson states “In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals.” but this statement is add odds with its strong endorsement of the 1^rst and 4^th Amendment rights. I believe that it logical rests on a continuation of the courts recognition of the right of each States to control speech and the press within its bounds and the necessity for Congress to have the power to prevent the mail service from abridging that right. I believe that the 14^th amendment removes the rights of States to control speech thus removing the avenue for any content based regulation of the mail.

United States v. Chase does state “We think that its purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence from examination.” and decides that a federal obscenity statue does not encompass letters.

Robertson v. Baldwin deals with criminal punishment and forced servitude for deserting sailor but does in it litany of exception to the rights granted by the constitution say “Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation”. The court attempts to create a doctrine where any historically permitted practices are by their historic nature judge not to be infringements upon the any rights granted by the constitution. “The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. ” This reasoning is devious and dangerous as it in effect prevents injunctions against historic abuses and wrongs. It could if the court was willing be used to justify black slavery as Africans were historically exempted from equal protection and historically owned and employed without their consent so logically the 13^th, 14^th, and 15^th amendments do not apply to them but rather merely recognize the rights of those historically in possession them.

Public Clearing House v. Coyne states in regard to laws preventing the dissemination among its citizens of information of a character calculated to debauch the public morality “The constitutionality of this law we believe has never been attacked.” but as we can see this is not the case. It also states “Many, if not most, of the matters presented to these departments require for their proper solution the judgment or discretion of the head of the department, and in many cases, notably those connected with the disposition of the public lands, the action of the department is accepted as final by the courts, and even when involving questions of law this action is attended by a strong presumption of its correctness.” in logical construction that severely limits all citizens rights petition for redress and to due process.

Hoke v. United States here the court states “Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, as we have said; but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions; and surely, if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.”. This seems to be a commerce power augment. This may in fact be legitimate justification for a prohibition on the interstate dissemination of obscenities, at least those transmitted as a part of commerce rather than mere speech. However this cases dismissal of the rights of citizens “It is said that it is the right and privilege of a person to move between states, and that such being the right, another cannot be made guilty of the crime of inducing or assisting or aiding in the exercise of it” is troubling when it could have made a distinction between the right to move between states and the right to induce another to excise their rights in furtherance of commercial interests. “Of course it will be said that womem are not articles of merchandise, but this does not affect the analogy of the cases; the substance of the congressional power is the same, only the manner of its exercise must be accommodated to the difference in its objects. It is misleading to say that men and women have rights. Their rights cannot fortify or sanction their wrongs;” This logic is troubling as it allows rights to be curtailed solely on the basis of that a law may make their excise illegal.

In Near v. Minnesota one violation of civil rights is used to justify another “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. 6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of frce (sic). Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 139 , 31 S. Ct. 492, 34 L. R. A. (N. S.)” Here the prohibitions on obscene speech begin to expanded beyond their conveyance through the mail. The court does correctly stand against the imposition of prior restraint and censorship at question in the case arising from a particularly oppressive law. “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with offical misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”

Chaplinsky v. New Hampshire “There are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572]   and punishment of which has never been thought to raise any Constitutional problem. 3 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. 4 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.” Here the court defends a law which says 'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.' and upholds a conviction on the basis of these words 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists'. That any government should have the authority to prohibit speech on basis of its annoying nature is to give it the power to control all speech of any form or content. The prohibition on the use of speech to prevent another from pursuing his lawful business or occupation seems to me to be the only reasonable part of this law as it is in infringement upon the rights of another. Though I am willing to concede that the use of speech as a means of abuse may be a legitimate offense.

Hannegan v. Esquire, Inc “But a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second- class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribed standards for the literature or the art which a mailable periodical disseminates.” not a strong endorsement of censorship.

Winters v. New York “We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency. Although we are dealing with an aspect of a free press in its relation to public morals, the principles of unrestricted distribution of publications admonish us of the particular importance of a maintenance of standards of certainty in the field of criminal prosecution for violation of statutory prohibitions against distribution. We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. Cf. Hannegan v. Esquire, 327 U.S. 146 , 153, 158, 460, 462. They are equally subject to control if they are lewd, indecent, obscene or profane. Ex parte Jackson, 96 U.S. 727, 736 ; Chaplinsky v. State of New Hampshire, 315 U.S. 568 . [333 U.S. 507 , 511]” The court does correctly overturn a law criminalizing publications “made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime” though it does so on the basis of vagueness rather than on the basis that they are protected speech.

Beauharnais v. Illinois “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase "clear and present danger." Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.” It is worth noting that the libel here is not false statements but rather statements without “good motives and for justifiable ends ”.

Here we see a progression in censorship from that which may be sent through the mail to that which may be sold or distributed to that which may be said or published. This is progressive intrusion in our freedom of speech is presented by the court as a consistent and stable recognition of the impermissibility of obscenity.

“In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

How sadly devergent this is from United States v. Chase's “We recognize the value of the rule of construing statutes with reference to the evil they were designed to suppress as an important aid in ascertaining the meaning of language in them which is ambiguous and equally susceptible of conflicting constructions. But this Court has repeatedly held that this rule does not apply to instances which are not embraced in the language employed in the statute or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress.”

“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

How one can recognize this as the core of the right but then exclude some speech on the basis of the social changes it may cause is beyond me.

“The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. 22 Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. 23 It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”

Here the court recognizes the danger evident in the progression of it own cases but is unwilling to extend protection to speech it find objectionable.

“Many decisions have recognized that these terms of obscenity statutes are not precise. 29 This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U.S. 1, 7 -8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ". . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . . . That there may be marginal cases in which it is difficult to determine the side of the line on [354 U.S. 476, 492]   which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." Id.,”

United States v. Petrillo here the vagueness of this law is addressed “It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee- '(1) to employ or agree to employ, in connection with the conduct of the broadcasting business of such licensee, any person or persons in excess of the number of employees needed by such licensee to perform actual services;”. I would argue while the number of employees needed is vague that it would not be vague to the licensee. And as the need is had by the licensee his opinion on the issue could be take as a finding fact in such cases. Though in general I think removing the “in excess” clause would have made a better law and that if it was congresses intent to allow for licensees to be forced by threats into hire employes up to the number needed to preform services then the law is too vague and should be invalidated on that basis.

Nothing in the ruling defines obscene content in a way in which a person may reliably predict the interpretation of that term. In fact the terms dependance on social values and norms is likely to increase the any uncertainty because of its transient nature and the variable values held be various segments of society. Allowing any discrimination based on content regardless of venue is a threat to free speech everywhere since any decision will be used as precedence even if the circumstances differ.