Tuesday, July 21, 2009

Another Milestone of Civilization

OK, it's not on the same level as the moon landing, but today is the 50th anniversary of another giant leap in First Amendment jurisprudence. As Fred Kaplan explains in the New York Times, that was when a federal court in New York basically invented modern obscenity jurisprudence when it allowed DH Lawrence's Lady Chatterly's Lover to be sold in the United States.

It was the result of some clever lawyering by Charles Rembar, who took the Supreme Court's then recent Roth holding and drove a truck around it:

Looking over the Roth decision, Rembar spotted a loophole. The opinion, written by Justice William J. Brennan, noted that the First Amendment’s purpose was 'to assure unfettered interchange of ideas' and that 'all ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees.' But, Brennan went on, 'implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.'

Rembar mulled over a question that Brennan apparently hadn’t considered: What if a book met the standards of obscenity yet also presented ideas of 'redeeming social importance'? By Brennan’s logic, wouldn’t it qualify for the First Amendment’s protection after all?
That argument carried the day and was later affirmed on appeal. It was a major turning point, but was hardly the end for obscenity prosecutions and banned books and the like in the United States.

I've said before that I don't read the First Amendment as having an obscenity exception and think that whatever consenting adults want to read/watch/listen to is nobody's business but they're own. But that's not a view that's likely to win a majority on the Court (or in the population at large) any time in the near future. For now, I'll accept the fact that obscenity prosecutions are really difficult to win and thus exceptionally rare. As they should be.

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