United States v. 12 200-Ft. Reels of Film/Dissent Douglas
[p130] MR. JUSTICE DOUGLAS, dissenting.
I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents. The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by the Patent and Copyright Clause of Art. I, § 8, cl. 8, of the Constitution.[1] To be [p131] sure, the Colonies had enacted statutes which limited the freedom of speech, see Roth v. United States, 354 U.S. 476, 482-484, nn. 10-13, and in the early 19th century the States punished obscene libel as a common-law crime. Knowles v. State, 3 Day 103 (Conn. 1808) (signs depicting "monster"); Commonwealth v. Holmes, 17 Mass. 336 (1821) (John Cleland's Memoirs of a Woman of Pleasure); State v. Appling, 25 Mo. 315, 316 (1857) (utterance of words "too vulgar to be inserted in this opinion"); Commonwealth v. Sharpless, 2 S & R 91, 92 (1815) ("lewd, wicked, scandalous, infamous,... and indecent posture with a woman").
To construe this history, as this Court does today in Miller v. California, ante, p. 15, as qualifying the plain import of the First Amendment is both a non sequitur and a disregard of the Tenth Amendment.
"[W]hatever may [have been] the form which the several States... adopted in making declarations in favor of particular rights," James Madison, the author of the First Amendment, tells us, "the great object in view [was] to limit and qualify the powers of [the Federal] Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode." 1 Annals of Cong. 437. Surely no one should argue that the retention by the States of vestiges of established religions after the enactment of the Establishment and Free Exercise Clauses saps these clauses of their meaning.[2] Yet it was precisely upon such reasoning that this Court, in Roth, exempted the bawdry from the protection of the First Amendment.
[p132] When it was enacted, the Bill of Rights applied only to the Federal Government, Barron v. Mayor of Baltimore, 7 Pet. 243, and the Tenth Amendment received the residuum of power to the States and the people. That the States, at some later date, may have exercised this reserved power in the form of laws restricting expression in no wise detracts from the express prohibition of the First Amendment. Only when the Fourteenth Amendment was passed did it become even possible to argue that through it the First Amendment became applicable to the States. But that goal was not attained until the ruling of this Court in 1931 that the reach of the Fourteenth Amendment included the First Amendment. See Stromberg v. California, 283 U.S. 359, 368.
At the very beginning, however, the First Amendment applied only to the Federal Government and there is not the slightest evidence that the Framers intended to put the newly created federal regime into the role of ombudsman over literature. Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I dare say Jefferson and Madison would be appalled at what the Court espouses today.
The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment "saw the publication, virtually without molestation from any authority, of two classics of pornographic literature." D. Loth, The Erotic in Literature 108 (1961). In addition to William King's The Toast, there was John Cleland's Memoirs of a Woman of Pleasure which has been described as the "most important work of genuine pornography that has been published in English...." L. Markun, Mrs. Grundy 191 (1930). In England, Harris' List of Covent Garden Ladies, a catalog [p133] used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevens, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e.g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra, L. Markun, supra. This was the age when Benjamin Franklin wrote his "Advice to a Young Man on Choosing a Mistress" and "A Letter to the Royal Academy at Brussels." "When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was 'one of the best novels in the language.'" Loth, supra, at 120. It was in this milieu that Madison admonished against any "distinction between the freedom and licentiousness of the press." S. Padover, The Complete Madison 295 (1953). The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy—the predecessors of our present obscenity laws—had yet to come upon the stage.[3]
[p134] Julius Goebel, our leading expert on colonial law, does not so much as allude to punishment of obscenity.[4] J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937); J. Goebel & T. Naughton, Law Enforcement in Colonial New York (1944).
Nor is there any basis in the legal history antedating the First Amendment for the creation of an obscenity exception. Memoirs v. Massachusetts, 383 U.S. 413, 424 (DOUGLAS, J., concurring). The first reported case involving obscene conduct was not until 1663. There, the defendant was fined for "shewing himself naked in a balkony, and throwing down bottles (pist in) vi & armis among the people in Covent Garden, contra pacem, and to the scandal of the Government." Sir Charles Sydlyes Case, 83 Eng. Rep. 1146-1147 (K.B. 1663). Rather than being a fountainhead for a body of law proscribing obscene literature, later courts viewed this case simply as an instance of assault, criminal breach of the peace, or indecent exposure. E.g., Bradlaugh v. Queen, L.R. 3 Q.B. 569, 634 (1878), Rex v. Curl, 93 Eng. Rep. 849, 851 (K.B. 1727) (Fortescue, J., dissenting).
The advent of the printing press spurred censorship in England, but the ribald and the obscene were not, at first, within the scope of that which was officially banned. The censorship of the Star Chamber and the licensing of [p135] books under the Tudors and Stuarts was aimed at the blasphemous or heretical, the seditious or treasonous. At that date, the government made no effort to prohibit the dissemination of obscenity. Rather, obscene literature was considered to raise a moral question properly cognizable only by ecclesiastical, and not the common-law, courts.[5] "A crime that shakes religion (a), as profaneness on the stage, &c. is indictable (b); but writing an obscene book, as that intitled, 'The Fifteen Plagues of a Maidenhead,' is not indictable, but punishable only in the Spiritual Court (c)." Queen v. Read, 88 Eng. Rep. 953 (K.B. 1707). To be sure, Read was ultimately overruled and the crime of obscene libel established. Rex v. Curl, supra. It is noteworthy, however, that the only reported cases of obscene libel involved politically unpopular defendants. Ibid.; Rex v. Wilkes, 98 Eng. Rep. 327 (K.B. 1770).
In any event, what we said in Bridges v. California, 314 U.S. 252, 264-265, would dispose of any argument that earlier restrictions on free expression should be read into the First Amendment:
"[T]o assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.'...
"More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: 'Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, [p136] come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.'"
This Court has nonetheless engrafted an exception upon the clear meaning of words written in the 18th century. But see ibid.; Grosjean v. American Press Co., 297 U.S. 233, 249.
Our efforts to define obscenity have not been productive of meaningful standards. What is "obscene" is highly subjective, varying from judge to judge, from juryman to juryman.
"The fireside banter of Chaucer's Canterbury Pilgrims was disgusting obscenity to Victorian-type moralists whose co-ed granddaughters shock the Victorian-type moralists of today. Words that are obscene in England have not a hint of impropriety in the United States, and vice versa. The English language is full of innocent words and phrases with obscene ancestry." I. Brant, The Bill of Rights 490 (1965).
So speaks our leading First Amendment historian; and he went on to say that this Court's decisions "seemed to multiply standards instead of creating one." Id., at 491. The reason is not the inability or mediocrity of judges.
"What is the reason for this multiple sclerosis of the judicial faculty? It is due to the fact stated above, that obscenity is a matter of taste and social custom, not of fact." Id., at 491-492.
[p137] Taste and custom are part of it; but, as I have said on other occasions,[6] the neuroses of judges, lawmakers, and of the so-called "experts" who have taken the place of Anthony Comstock, also play a major role.
Finally, it is ironic to me that in this Nation many pages must be written and many hours spent to explain why a person who can reach whatever he desires, Stanley v. Georgia, 394 U.S. 557, may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one's Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study. United States v. Thirty-seven Photographs, 402 U.S. 363, 382 (Black, J., dissenting).
Most of the items that come this way denounced as "obscene" are in my view trash. I would find few, if any, that had by my standards any redeeming social value. But what may be trash to me may be prized by others.[7] Moreover, by what right under the Constitution do five of us have to impose our set of values on the literature of the day. There is danger in that course, the danger of bending the popular mind to new norms of conformity. There is, of course, also danger in tolerance, for tolerance often leads to robust or even ribald productions. Yet that is part of the risk of the First Amendment.
Irving Brant summed the matter up:
"Blessed with a form of government that requires universal liberty of thought and expression, blessed with a social and economic system built on that [p138] same foundation, the American people have created the danger they fear by denying to themselves the liberties they cherish." Brant, supra, at 493.
- ↑ Even the copyright power is limited by the freedoms secured by the First Amendment. Lee v. Runge, 404 U.S. 887, 892-893 (DOUGLAS, J., dissenting); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U.C.L.A. L. Rev. 1180 (1970).
- ↑ Thus, the suggestion that most of the States that had ratified the Constitution punished blasphemy or profanity, is irrelevant to our inquiry here.
- ↑ Separating the worthwhile from the worthless has largely been a matter of individual taste because significant governmental sanctions against obscene literature are of relatively recent vintage, not having developed until the Victorian Age of the mid-19th century. N. St. John-Stevas, Obscenity and the Law 1-85 (1956). See T. Emerson, The System of Freedom of Expression 468-469 (1970); J. Paul & M. Schwartz, Federal Censorship, c. 1 (1961); Report of the Commission on Obscenity and Pornography 349-354 (1970). In this country, the first federal prohibition on obscenity was not until the Tariff Act of 1842, c. 270, § 28, 5 Stat. 566. England, which gave us the infamous Star Chamber and a history of licensing of publishing, did not raise a statutory bar to the importation of obscenity until 1853, Customs Consolidation Act, 16 & 17 Vict., c. 107, and waited until 1857 to enact a statute which banned obscene literature outright. Lord Campbell's Act, 20 & 21 Vict., c. 83.
- ↑ The only colonial statute mentioning the word "obscene" was Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), in Mass. Bay Colony Charter & Laws 399 (1814). It did so, however, in the context of "composing, writing, printing or publishing... any filthy, obscene, or profane song, pamphlet, libel or mock sermon, in imitation or in mimicking of preaching, or any other part of divine worship" and must, therefore, be placed with the other colonial blasphemy laws. E. g., An Act for the Punishment of divers capital and other Felonies, Conn. Acts, Laws, Charter & Articles of Confederation 66, 67 (1784); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799).
- ↑ Lord Coke's De Libellis Famosis, 77 Eng. Rep. 250 (1605), for example, was the definitive statement of the common law of libel but made no mention of the misdemeanor of obscene libel.
- ↑ Ginsberg v. New York, 390 U.S. 629, 655-656, 661-671 (DOUGLAS, J., dissenting).
- ↑ Ginzburg v. United States, 383 U.S. 463, 491 (DOUGLAS, J., dissenting).