tv Lectures in History Free Speech Laws Court Cases CSPAN September 30, 2020 11:08pm-12:15am EDT
now on american history tv on c-span three, play class from the university of tennessee law school about the history of how the supreme court has interpreted the first amendment. from our lectures in history series, this is just over an hour. >> hi, welcome to a second episode, global pandemic addition. here we are. i think the first class went pretty well, so let's open with those two. we are being recorded for c-span. so for the folks out at c-span, i am professor glenn glenn
reynolds. on the law professor at the university of tennessee. we are talking today about free speech and incitement and we're going to get started on obscenity. we will be a last socratic than usual today because the c-span people asking to be. here's the textbook we are using. constitutional law. it's a good case book. it's the first time i've used this one actually, so we are still learning our way here. today we are talking about free speech. we have been talking about equal protection. we've been talking about race discrimination and gender and things like that. now we are pivoting to a core part of the bill of rights on a different section entirely, it's all about free speech. we know they value free speech very highly, to the extent that they talked about it, it's
mostly political. more than artistic or expressive. the interesting thing about the first amendment ... almost all the case law comes from the 20th century, for the 21st, and there are a couple of reasons for that. one is that many of the matters that it touched on were really not federal issues for the most part. for example, incitement was generally considered a local criminal matter. it was dealt with by state courts. if there were constitutional restraints on it in those days before the first amendment was incorporated against the state, the only limits on what a state could regulate on incitement came from their state constitutions. it did not become a federal issue. with regard to obscenity, the technology wasn't really there. there were books which were regarded as obscene back at one time. that mattered pains, i suppose. but the ability to mass produce
sexual images, which is what really seems to set people off, didn't really appear until the middle of the 19th century. it did not take off in a big way until, again, going into the 20th century. of course, you could not have obscene movies until movies were invented. that had a lot to do with it. one of the interesting things about this is is much of the law surrounding the first amendment is younger than me. it's really from the second half, and actually pretty far into the second half of the 20th century. as a result, we feel like it's old law, but it is by the standard of constitutional, relatively new. the constitution talks about the free expression of ideas and that is not a phrase that is found in the constitution. we sort of derive it from the things the constitution does protect. the first amendment says, congress shall make no law abridging the freedom of speech or the press or the right of the people to possibly symbol and to petition the government for a redress of grievances.
it's worth noting, these are actually separate free speech rights. each of these is its own clause. for example, we have freedom of speech. we have freedom of the press. we have right of assembly and we have right of petition. those are all, to some degree, analytically distinct, enough so that when you are writing a brief or other document address to the court, you do want to sort of keep that in mind. as a practical matter, we tend to lump them altogether as either free speech or free press, but we also derive, as you will see later, a right of association from assembly and petition and speech that is not contained in the text at all. one other side point. freedom of the press, which we will get to later, i should just mention that madison called it originally freedom of the use of the press. it is indeed the freedom to print things and publish things. it is not a freedom to what we now refer to institutionally as the press, the media.
it's the same for everybody, media or not. free expression, there is a big category that is probably the single most important distinction we could deal with. that is between content mutual regulations of speech and content based regulations of speech. content based regulations of speech aren't bad. they are presumed, invalid and subjected to scrutiny. they are upheld only in the strictest of circumstances. content based example might be, for example, no discussion of the bachelor. i could kind of go for that one may be. at any rate, picking a topic and placing it off limits. a subset of content based speech is viewpoint discrimination, or viewpoint based regulation, in which you are allowed to talk about something but not from a particular viewpoint. so you can talk about politics, but you cannot talk about that from a communist viewpoint for example, that would be a case of the discrimination, which is
a subset of content discrimination. content mutual regulation are not addressed what the speech is about. content mutual regulation might, for example, say you cannot operate soundtracks in a residential neighborhood between 8 pm and 8 am. that is content mutual because they don't care what you are saying with the soundtrack, they just don't want you keeping people awake. i mentioned the framers didn't talk about why we have free speech very much, but the courts do. the courts have a number of different ideas which tend to come to the front in different ways and different cases. sometimes they can be a bit contradictory. when they are thinking about what the first amendment, what free speech protects, the courts have several different lines of attack. one is self governance, the notion that we need to be able to talk about issues in order to operate as a democratic society. if the voters, remember, in the american system, voters are sovereign and the people are
sovereign. if they can't talk about issues that confront the government and the society, then they can't run the society as the people who are sovereign are intended to do. it also has beneficial effects and people are more likely to put their confidence in congress if they feel like they have a say. for that matter, if they can ramble about it like people do today. there's also the notion of the search for truth. the placement of ideas. the idea that by discussing things we see different angles on them and we understand that more fully and differently that if we didn't have open and free discussion. what these are worth reading even today. there's also the notion of free speech that is necessary to develop more virtue than simply unquestioning lee except ideas. you reason your way to them you develop credits to see if
you're doing it right. there's also the notion that we boost talents and society by having open discussions of ideas. if people are forced to confront, to hear, to at least be aware of, people get different ideas, and they will develop tolerance. there used to be a law professor who has a good book on this, from many years ago, who brings that point quite well. and autonomy and expression. people want to express themselves. they want to let other people know what they think, and what they feel, and free speech allows him to do that. but all of these to find different cases. but as you read a case, you should always read what the court does with. it think about, what version of free speech is the court applying here, and why is it applying that one, and not one of the others? it's worth looking at.
let's go back the content neutral and content base, for a minute. as a textbook. does content base regulation, as i mentioned, is very disfavor evil. and the playboy case, united states unplayable entertainment group is a good example of. this four digit all they would scramble stuff, i remember when i was in law school they had tv with cable on and people would put the play board channel and you could punch where would people thought. congress would enforce the playable channel which -- playboy chao channel to scramble or otherwise make it on available to household with children. the point of this is content based regulation. you are regulating sexually explicit, not obscene, just sexually explicit content.
and the statute does have to pass, you have intrusive means of regulating such as not delivering that content the houses that don't want it or allowing people to watch them so their kids cannot watch it without a pain. there's another content based case which is a sign case. states are always regulating signs. if you find yourself in a city will always find things like. that you will have to deal with the sign and it's probably unconstitutional, or so it seems. gilbert band signs unless a permit was obtained. and the permit exempted a bunch of categories of science. but they regulated things pretty strictly, and poor mr. reed with his church who had temporary signs, to tell people or where they would be this week. because there are changing locations to another. he kept getting cited for not
taking his signs down within an hour of the event. he thought that this was congress based, he was temporarily directing signs, differently. and he won. the courts of this account for based regulation,. they disagreed with the city's argument that we are regulating speakers, not speech, we don't care what is on the sign, except you do care what is on the sign because you have rules that are different for different signs about different things. so the court said the purpose is not relevant for our content based on this. constant base regulation is unusual -- oh no, one place where it has traditionally come up, and they gave us a lot of our cases is in cyber. incitement is when you encourage someone to commit a
crime. but the and predicted category of a speech of obscenity, child born, incitement and fighting wars. you hear a lot of talk in public discussion about this being -- it comes from a case in the supreme court that has never acted upon another regulation on fighting words. so it's not actually a relevant case. people start talking about -- i'm not saying they're idiots, but the reminded that that's the case. incitement is where we get a lot of our cases in that is because incitement was used regularly to regulate speech that the government did unlike frequently from communists, anarchists, and other flavors of political undesirables. this led, overtime, to the
development of dr. go present danger. first of all, if you know where people are actually saying today, none of this would seem controversial or subject to regulation. and second, much of this was actually developed by homes and in a sense, these closed are from the cases that when you actually read you can see that the person in law went to jail. shake is one of these cases. it's a case where it's a pretty standard model socialist, and he into posing a draft in world war i. making the argument, which i personally believe to be correct, that draft violates the 13th amendment. the supreme court said otherwise a few years earlier, in the selective case service. but it's a perfectly respectable constitutional argument. and his piece, at least inform, the court says, can find itself
to peaceful measures, such as a petition for the repeal of this elected service act. so, he loses, it's bad news. i hope you can hear me well enough to know that. he loses because the court says, he would've sent these documents, unless it had been intended to have some effect, and we don't see what effect it could be expected to have upon person subjected to the draft except influence them to take it out. so if you tell people you're being drafted, and the draft is unconstitutional, then that's that. and it would only be done if you have some sort of intent to obstruct updraft. and that's good enough. the most strange protection, it's a very famous line, the most trenchant protection of free speech would not protect them and i would falsely shouted theater and causing a panic. that is a famous homes line. you hear it all the time, of people often say you can shout fire in a crowded theater, it's very important to remember the
first part of the statement. it's fine to shout fire if there is one. but maybe not the most constructive one. as i said, it's a very unfriendly case for free speech. the court takes the position that if you say something that might have a bad consequence, the government can shut you up. ivan is in this case, i think it's a reasonable argument. some of the cases afterwards in the forward against united states, it got a conviction under the espionage act, very similar brand. publishing articles in the german language newspapers, talking about that was illegal. circulation of papers might produce disaffection among german americans, and that's bad. and that involves the conviction, and actually jailing, of a prominent socialist because a candidate for president he got millions of votes from the socialist party. giving a speech that he gave,
since today it's something you can hear all over the place, talking about how socialism was great, and then say that i can't say everything that i'd like to say here. apparently that was considered enough to justify the influence. so he would've said things that were illegal, and that was more of a response to his listeners minds. he didn't say the things that were legal, and therefore went to jail. which color did. quite different from today. other cases against the united states, most americans don't remember that for the end of world war i, the united states and other western countries invaded russia. we believe the russians to remember. it's too badly didn't work. they wanted to put down the communist revolution there, had they succeeded, they would've saved the world up from russia being hurt. but it was a failure. abrams in very years other people who sympathize with the
russian revolution tried to encourage workers in the united states to oppose it, and the result was that they went to jail. the supreme court says, even if their primary purpose and intent was to aid the cause of the russian revolution, they are nonetheless going to injure their way of germany. the plan of action i enacted necessary involve act, and therefore the purpose of their propaganda was to excite at the supreme crisis of the war disaffection's addition rise, and revolution in this country. where there's an embarrassing possibility, and humiliating and defeating the military plans of the government in europe. nowadays, we see all kinds of activism that is just mundane. but at the time it was quite controversial. you should be able to punish speech until proven to have
done the actual consequences, are punishing for -- it should probably be likely. to congress certainly cannot forbid the efforts to change your mind of the country. and in fact, this passage is a famous passage, from this dissent. persecution through the expression of opinions he seems to be perfectly logical, if you have no doubt of your premises or your power, and you want to assert your results without power. you naturally express your wishes in law in a sweep way of the opposition. but when men have realized that time has upset many -- they may counter believe that the ultimate desire is better reached by free trader ideas. but the best test of truth is the power of the thought to get something accepted in the competition of the market, and the truth is the only run on which it can be safely carried out. that is a theory of our constitution. when you hear about people talk about the marketplace of ideas, that's where this came from. hobbes idea that ideas could compete in a marketplace. and the truth with thereby be
enacted. and the notion that sure, it makes sense to trying to brace people that disagree with you, but you could be wrong. indeed you could. well, hobbes was in the senate there and as we see in this law against new york. now i will say in the defensive people, 100 years ago, they were crazy to be afraid of a communist revolution. it was quite a shock to the world when the communist overthrew that's are, in the old russian empire. they killed thoughts are in his ministers, anastasia killed in vain, that's what the song says. everyone was quite shocked by that in this country could foresee the huge and powerful of an extremely establish monarch to be turned upside down overnight. naturally it make people afraid. and there were in fact communists and all countries around the world. who very much desires to bring
about similar results themselves. so these red scares were not the result of fantasy exactly, but they were quite extensive and swept an awful lot of people. again who are not in danger. that is a good example of that. the last wing and the revolutionary age are containing riding advocating advising in teaching the doctrine that organized government should be overthrow by fours, violence, and unlawful means. it's very straightforward and what you believe. in clearly you can try to do that and it would be illegal. however as the court says, there would be no effect in the publication of the circulation of the manifesto. which is also fairly typical. the ducks had some extra that sound like they barely love the typical revolution or take, which remains remarkably the same hundred years later. but the courts fight
unsympathetically. they say the jury was wanting to advocate not merely abstract -- agreement by four and unlawful means but actions without effect. a single revolutionary sparked the general fire that burst through sweeping in the eruptive conservation. whenever the courts start talking about sparks and fire that is always a sign that someone is going to jail. we are definitely worried and upset. once again, they get hobbes to dissent, he declares that there is no clear present danger here. there is no danger of attempt to overthrow the government by force on the part of the administrative small in the share in defending. it and his idea in some science in the sight if you act accordingly, you don't throw people in jails simply for having ideas. he said the publication of this vacuum had been an intent to use an uprising against a government and not something that is a definite time in the
future it would have presented a different question, but there is insufficient definiteness in terms of the time. we had a lot of cases after this where the court remains quite unsympathetic to the communist and anarchists, there's overlap there. brandeis added to his theory that there should be ... nonetheless, was convicted. brandeis argued that the danger from the speech must be clear, imminent and substantial or serious. but the court did not adopted. and indeed, the court said that just being a member of a group that had, as a purpose, criminal syndicate listen, was enough to make you liable. we see similar stuff in cases involving the communists after world war ii.
and again, there were actually lots of communists and many of them worked in the government. many of them were directly connected to the soviet union. back in the nineties, some previously unknown material from a project called vanilla, intercepting communications from soviet spies, show there were quite a few people working like that under directions a moscow. again, there were not figments of a person's imagination. nonetheless, they had leaders of the actual communist party, they were not spies, they were out in the open, they were convicted for violating the snip act. the senate act said if you engaged in advocacy or attempted advocacy of the duty, necessity, desirability or propriety of overthrowing any government, american government by boris, then you were in violation and the court held that they could be convicted. in essence, it was where they
said if you're serious evil the government is trying to prevent, the less likelihood there needs to be to justify preventing the danger. douglas descended and said, this seems to be a departure from the clear and present danger role. douglas said, there's no evidence they did but advocate ideas and that should be okay. the court later in the fifties, started to reverse on a lot of this. some of this was because of the implosion of senator joseph mccarthy ... as i said, there were communists, a lot of the people he thought were communist were not and he went a little crazy. a discredit to the communist caused in no small degree. also the u.s. was quite nervous after world war ii as many countries were taken over by communists. the communists then developed an atomic bomb much sooner than
they thought. in the fifties they started to feel a little safer. you had to have proof that the advocated action and if you want to punish someone for belonging to an organization, you had to show that that particular defendant specifically intended to accomplish those illegal ends. so that was a substantial trimming back. then we get to brandenburg against ohio. brandenburg brings us to our modern a lot of incitement. this was a sort of said credible high oh ku klux klan members. they had a rally. they invited reporters from a tv station to come and film it, which they did. much of what they said was unintelligible, but somewhere in the footnote of your text. i don't think the actually ever did march on congress. at any rate, they were charged
with criminal cynical-ism in a prosecution that was sort of a recapitulation of whitney you might say. but the court said, we will not apply with me here. that is not the test now. miss honey cut, can you tell us what the test is? >> am i unmuted now? >> you are unmuted. >> the element they added now is that you have to show they were directly trying to incite or produce imminent lawless action or that it's likely to incite or produce such action. >> likely to succeed, as well. >> likely to succeed ... >> the incitement, the speech has to be directed to inciting eminent a lawless action and likely to succeed. that is a much stricter test. >> is there any actual
difference between that and gambler or it's that it's so many years later that they decided to basically change the direction? >> i think there are real differences. in get low, they affordably stated that it did not have any effect. that nobody thought it was very likely to have any effect. they are basically abandoning the spark and can link the flame theory. if you apply to this case, what the court would've said, i think, is that these guys in ohio are a bunch of losers, but what they are advocating for is serious violent action and there's always the chance that somebody might listen to them. in fact, they're doing exactly the opposite. they are saying he has to be inciting imminent lawless action and be likely to succeed and none of that is the case here. they are talking about stuff that is in the future. they are not likely to succeed because no one is likely to listen to them. it's very different. it's the difference between me
standing in front of a mob and saying let's burned down city hall and me sitting in my bedroom typing on internet site that people should go burn city hall. one of them is incitement and the other is twitter as usual, probably. >> thank you. so, brandenburg is the modern test. if you're highlighting things in your book for the exam, stuff like that you should definitely highlight. brandenburg on page 8:49 because that is the tester incitement for today. actually, it's not uncommon for that to be tested on the bar exam for those of you who care about such things. douglas concurrence and says ... when you read the opinion closely, you must -- i was never a clear and present danger. the facts were often loud, but often puny, and made serious only by judges sweated to the
status quo to make them nervous. all restrictions on speech were unconstitutional under the first amendment so he does not even think there should be a clear and present danger. after brandenburg, courts have been much more willing to overturn convictions for incitement or disorderly conduct or other things like that. as you see for example, the police are clearing the streets and somebody else, we will take the street later, i'm leaving out the f-word. the court says that is just not an up. in this case, there was a boycott of businesses in mississippi and the naacp had encouraged and threats were made that people would have their next broken if they did not participate in the boycott and patronize those businesses.
but the court said that it wasn't sufficiently directed or imminent of a threat or indication of lawless action. it did not support a conviction. in this case, actually a judgment awarding damages -- damages. we do have holder against humanitarian law project involving a terrorist organization which the court did uphold the statute. the directs specific training, expert advice, service, almost enough to make one a participant in any courts involved. the court refers to congress to a greater degree than it normally the first two state legislatures on such. that may be put down to war on terror sentiment, but honestly, the court never got very swept
away with that. there is a sub species of incitement called true threats. these come up particularly in the internet context a lot. a true threat is punishable. vague statements of potential violence are not. a true threat means you threaten to crew commit criminal harvey somebody and he has to be sufficiently immediate and credible so that a reasonable person would be afraid of it. in virginia against black, we see how that plays out. virginia against black is a cross burning case. lots of southern states have laws against burning crosses which date back to the cohen era. in this case, we have two sets of cross burnings. one on private property by a
man named barry black. the ku klux klan named black, a well. not the first one of those actually. he had a cross burning on his property. he was charged and convicted under virginia statute of burning a cross for the intent of intimidating. the virginia statute said a jury can infer intent to intimidate simply from the fact that you burned across. the burning of the cross by itself is sufficient events from which you may infer the required intent. the other defendants burned across in the yard of an african american. it's unclear whether they did it out of racial enemies or they were mad at him for complaining about the making too much noise shooting on their property. the court says, cross burning
is inextricably intertwined with the history of the ku klux klan. often they used cross burning as a tool of intimidation and a threat of impending violence. this is true. after the brown case, there was a resurgence of the klan that some people feared. there was cross burnings and such again. the symbols of burning crosses, though not always one of intimidation, can reasonably seen is that much of the time. the court says, what we have to do is analyze this virginia statute and see whether virginia is regulating true threats or sweeping in things that aren't beyond the limit of the truth that drop train. true threats, the court says, encompass those statements where the speaker meets to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals. notice the characteristics here. you have to mean to communicate this expression. it has to be an intent to commit an act of unlawful violence and it has to be against a particular individual or identifiable group. it protects people from the fear of violence. it's not about preventing violence as such. intimidation and a constitutionally describable sense of the word is a true threat where a speaker direct a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. so was burning across this kind of a threat? well ... that is what the court looks at. in the case of mr. black who burn a cross on his own property, it seems ... virginia
presumes that intent from the fact you burn across makes it unconstitutional. the active burning across may mean the individual is engaging political views. with the case of black, they vacate his conviction. with the case of elite -- elliott, they send it back to the virginia supreme court for further proceedings and light of this opinion. well, that's a pretty good true threat case. in any context, it's trickier because ... i mean, i once got really nasty threats which were traced to a internet café in amsterdam. i did not care. if it came from the starbucks in the block, i might have.
it's hard to know if internet comments are seriously likely to hurt people or not. people tend to get carried away and there's hyperbole on the internet. the watts case demonstrates this. mr. watts was an anti vietnam protester who threatened london be johnson. he said i have to go for my draft, if they ever make me carry arrival the first man i want to get into my sights is lbj. no one will make me kill my black brothers. the court said, the law under which he was charged was valid, but it was hyperbole. that is to say they thought he did not mean it, he was just spouting off. in this case, the big thing was eminence. charles said if we catch any of
you coming in, we are going to break it in next. weeks later, somebody fired shots into the windows of people who violated the boycott, but the court said the strong language could not really be incitement because there was not enough imminence. these are sometimes hard questions to analyze because they frequently strike on the facts. you have to analyze in light of the truth and what it says. was this intended to commit a threat to somebody? if so, where they placed in fear? we have the alone against the united states case, who put mueller threats in the internet for a lot of people but claimed they were a part of his persona as a rap artist. the courts tell you could convict a case like this if a reasonable person was considered the communication a threat. this is somewhat problematic
but that's the law. and it would also be hardwood dress i think in any other way. well, that gets us out of insight. in somebody did have a question about get a. did the cord apply a reasonable test instead of a clear present danger because of state police power instead of the federal? i don't think that really came into play at all. no. i don't think there's a different test for police power in that contest. i don't think it makes a difference. all right, obscenity. as i mentioned before, obscenity is to some degree technologically the tour. the history of obscenity is that only rich people could get it for a long time, because only rich people could afford paintings. and they were pornographic paintings, as we consider them. which are now considered great art. only rich people, generally, or
important people who were illiterate and good read. so if you had read the word obscenity most people would still have a painting because i don't know what it said. of course now we have motion pictures. as a result, there wasn't a lot of interest in these sort of things generally speaking. when they did start regulating it, the original task looked at its ability to brave the weak minded. it was a phrase sometimes used. and it was always a class component. which is to say, it's not about explicit sexual content that appeal to highbrow people, it's art. stuff with explicit sexual content appears to the masses, that is pornography. and that is a view that we still see today. it's actually related material in this lesson is obscene and the question is, how do we know when it's obscene? and the question is, good freaking question. of course you have a lot of
trouble with it, and the most honest mention it's mostly all know it when i see it. which isn't very helpful to most of us. the wealth of obscenity really is a technological phenomenon. photography, of course, was invented around 1840 and within about 15 minutes of photography being developed -- photography had been functional for about 15 minutes and people started making sexually explicit, pornographic photos. i've seen some of those from the 18 forties and 18 fifties, and they look surprisingly like the ones they have today. it's amazing how the conventions of art far framework were established. during the civil war, with a mass produced naked photos and they were shared on the troops who were lonely. there was a big backlash after
the war on a felon named anthony who talked about suppressing obscenity, by which he also meant operation on birth control insects, as well as titillating material. still, not much action in courts. the first court that implied in the states, it wasn't very interested in dealing with these issues. so, we really didn't start to see a lot of action until the sexual revolution began to take off, actually. and that's when the supreme court started to really struggle with whether it could cause obscenity out of the first amendment. are somehow deal with it. because it was just okay to write obscenity. and it's not clear why that is. sometimes a short fiction of obscenity is speech. but of course, that's not true. what they usually mean by that,
it's that obscenity has such low value speech that it doesn't really matter if we regulate it. and that's a little shaky. as we will see. and the court also had an extra really difficult task that would allow those states to regulate material that they regarded as crude without also allowing to regulate material that they saw are regarding as art. and that happens throughout. along in the united states against california, where the court tries to develop the standard of content heavy -- it can't be obscene obscene if you don't see the sex. has to have a interest in a community standard -- something to get to exhibited or aroused, and it has to be utterly without revealing socially. and i love the utterly part.
you would be shocked to know that what happened then was a lot of pornographic distribution, a few pages, something in the back of the book. and they claimed it was not of a social value. much amusement. i think never had a sight on regulating obscenity at all. and says, free speech is here to protect expression, to ensure interchange of ideas, and anyone who has the slightest redeeming of social importance. on orthodox controversy, anything that is hateful to the prevailing opinion, has four constitutional protection that implicit in the first amendment is a rejection of obscenity as utterly without remaining social importance. if you're reading social importance, which i means you have social importance you can't be obscene. you can -- heat they reject the british
task, which tends to the brain corrupt those who open to such moral influences. and instead, it's whether to the average person with temporary community standards. the dominant theme of the material, taken as a whole appeals to poor interests. so there you have it. if you're a publisher, or regulator, it's super clear, right maybe. he says, you know, managers might find these choices -- it was obscene, and yet the conviction of a defendant for selling these books remains to be the greatest constitutional problems. and he also suggest, that it should be left of the states. congress has no great national role in regulating obscenity. and this is something that can vary from state to tate with no great harm being done. on the other hand, row of trying to create purity and
that's a bad idea. ralph was hard, as i mentioned. publisher started to find a variety of using ways to try and add redeeming social value and courts had no really idea of what this stuff meant. perhaps a court didn't either. so the restate law try to clarify something, in a memoir against massachusetts, where they say that the dominant theme of the material taken as a whole appeals to poor interesting sex. the material is heavily offensive because it afraid -- offers temporary community standards relating to the description or representation of sexual matters and the material is utterly without revealing social matters. still there's an utterly in there. and that turns out to be, as chief said later, virtually impossible to discharge. and it was lots of fun to the court. it became case by case that they literally wound up
watching, allegedly, obscene movies in the supreme court, with the justices watching in deciding if they were obscene or not, and then issuing for purity on opinions. which some justices perhaps enjoyed, and some justices refused to participate because they thought it was too case by case. so some fun stuff. in this book about the court that talks about this. he said all know it when i see it, i think i said those before. that was an satisfactory. we get going against california now, and nowhere against california we get a new test which remains to the extent there are such a thing as obscenity. it remains a brutal test. it's just a bunch of cases they brought back, and i now state that this test is works which
depicts or describes sexual conduct, the conduct must be specifically defined by the applicable state law as written or construed. the basic guidelines must be whether the average person apply contemporary community standards, would find that the were taking as a whole appeals to the pure interest, whether one describes -- depicts or describes in offensive way sexual conduct, specifically defined in the applicable state law. and whether the work taken as a whole take seriously literary, artistic, political, or scientific value. specifically get rid of the utterly without redeeming social values test. and literally, if you look at the obscenity cases, it is more different for local standards in these cases. then it's really anywhere else in the constitutional law. the court says, under national constitution, fundamental first, the limitations on the powerful states do not very from community to community but this
does not mean that there are or should be, or can be fixed uniform national standards of precisely what appeals to these entries. and they say we need to be realistic, nor constitutional sounds to read the first amendment as depriving people from maine are mississippi, except public depiction of conduct is powerful in las vegas, or new york city. now, imagine applying this to, i don't know abortion, or birth control, or gary marriage, or many other things to supreme court has regulated. but somehow, in the obscenity ne
court said obscenity can be regulated even when it's between consenting adults, we categorically disprove the theory that obscene pornographic films require constitutional immunity from state regulation, simply because they are exhibited for consenting adults only. why? a yellow law professor said it concerns the tone of the society, the style and quality of life not in the future. and then be entitled to read a book in his room, or expose himself and decently there, we should protect his privacy. but if he demands a right to abstain the books and pictures he once in the market, and to gather in public places, discreet ifwith others to sharee then he affects the world of the rest of us and he impairs and other privacies. again, compare that to the treatment of other issues that we have addressed by the court. such as birth control, abortion, or whatever. which also presumably affected tolerant society and it's not
clear why explicit sexual content is different, in a way, and effects the tone of society to the point where its constitution has privileged and effects of aside that cannot be regulated. because the court doesn't make any effort to reconcile this. then incense it says, we just really need to admit that we have been unable to separate obscenity from any other sex related obscenities from the court. we know it when we see it, we just can't describe it in a way, that anyone can use. it's going to be a obscene in advance. one of the things that happened here, i think it breaks down to consensus. that's probably true that in 1940 most everybody did know what they considered obscene, and society diverged somewhat in the sexual revolution and all of that. it's also interesting to see how things have changed.
if you walk through your supermarket checkout, assume that you don't have your fool delivered now because you are isolating, you look at the magazines on the stand, you look at the copy of calls metal, or a red book, and any of those magazines would have been considered obscene in 1950 at the time of roth, say. they are articles on sex, on all kinds of things, a teen vote on how to guide some sex, i promise you it would be considered obscene quite a good deal more recently the 1957. now, that's just all changed. some of that is technology, and it has
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