Update no.458

Update from the Heartland

No.458

20.9.10 – 26.9.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- The Senate failed to invoke cloture on debate regarding bill S.3454 – National Defense Authorization Act for Fiscal Year 2011 [Senate: 56-43-0-1(0) {60 yes votes required}]. The sticking points at issue are: Title V: Military Personnel Policy; Subtitle J: Other Matters – § 591 provides for repeal of the current DOD policy concerning homosexuality in the Armed Forces [AKA Don’t Ask, Don’t Tell] [312, 408]; and attachment of Development, Relief and Education for Alien Minors Act (“DREAM Act”). We shall await the next step.
-- We have another perspective regarding the viability of the United States Marine Corps [452].
“Send away the Marines?”
by Frank Gaffney, Jr.
Center for Security Policy
Published: Sep 13, 2010
http://www.centerforsecuritypolicy.org/p18524.xml
-- The Florida state Third District Court of Appeal review of the homosexual adoption case – In the Matter of the Adoption of: John Doe and James Doe [case no.: [Redacted] (2008)] [363] – affirmed Judge Lederman’s finding that the law was unconstitutional. The appeal case – Florida Department of Children and Families vs. In re: Matter of Adoption of X.X.G. and N.R.G. [FL 3CA no. 3D08-3044 (2010)] – will probably be appealed further to the state supreme court.

On my judicial reading list, I seek contemporary pronouncements that illuminate shifting boundaries of our freedom and rights, and occasionally I reach back into history to read a pivotal case often cited by the Supremes. One of this week’s cases involves the First Amendment freedom of speech – United States v. Playboy [529 U.S. 803 (2000); no. 98-1682]. The case focused upon §505 of the Telecommunications Act of 1996 [PL 104-104; 110 Stat. 136; 47 U.S.C. §561; S.652; Senate: 91-5-0-3(1); House: 414-16-0-4(11)], actually Title V: Obscenity and Violence; Subtitle A: Obscene, Harassing, and Wrongful Utilization of Telecommunication Facilities (AKA Communications Decency Act of 1996), which required in part: cable providers of “sexually explicit adult programming . . . shall fully scramble or otherwise fully block the video and audio portion of such channel.” The phenomenon of “signal bleed” instigated the preemptive challenge by Playboy. “Signal bleed” was an artifact of the pre-digital days, when the digital signal scramblers were not 100% effective on old analog television devices. The reason I find this case so important rests not in the outcome but rather how close the Supremes came to serious infringement of the First Amendment’s guarantee of freedom of speech. Writing for the majority, Associate Justice Kennedy observed, “It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.” He added, “Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. The Government's argument stems from the idea that parents do not know their children are viewing the material on a scale or frequency to cause concern, or if so, that parents do not want to take affirmative steps to block it and their decisions are to be superseded.” This is the very heart of the conflict we face to this day as social conservatives seek to suppress “objectionable material” for everyone, all in the name of protecting children or their sensibilities. Kennedy went directly to the point, the material at issue was “not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it.” Yet, the importance of the Playboy case to our freedom and rights was expressed in just one sentence offered by Associate Justice Clarence Thomas in his concurring opinion – “The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” In this case, Thomas was the deciding 5th majority vote, and his opinion hung on just one ambiguous, subjective interpretation – indecent versus obscene. While the Court affirmed Playboy’s right to distribute sexually explicit programming to cable providers, I am astounded how close this case came to restricting what and when citizens can watch what they wish to watch. Freedom is both precious and extraordinarily fragile; we must remain constantly and diligently vigilant.

The Playboy case above led my curious mind to an earlier critical case – Roth v. United States [354 U.S. 476 (1957)] – a key Supreme Court 1st Amendment obscenity ruling. In turn, Roth led me into a review of the history of relevant laws. Obscenity laws . . . morality laws, so what; who cares? Most of us could care less I suppose, since most of us do not buy, sell, trade, view or otherwise possess obscene materials of any kind, and perhaps we are even disgusted that such materials even exist. So, why should we care what the government does in restricting and banishing that filth from the stories, the streets and those depraved homes? Well, in my humble opinion, we should care because this is precisely how they chisel away at our freedom and rights. So, we proceed. I have often pegged the beginning of the moral projectionist laws in the United States at the Comstock Act of 1873 [PL 43-258] [285, 292]; it turns out that reference is predominately true but not strictly so. The first Federal law against obscene or indecent material was actually the Tariff Act of 1842 (AKA “Black Tariff”) [PL 27-270], which prohibited the importation of “indecent and obscene” material. Yet, as with many of our laws, the genesis of obscenity laws can be traced back to Mother England. According to the history books, there were spotty obscenity prosecutions on behalf of the Crown until the publication of the erotic novel Memoirs of a Woman of Pleasure (AKA Fanny Hill) by John Cleland (21.November.1748), which sparked the public debate regarding decency and obscenity in printed materials. In 1787, King George III issued the Royal Proclamation “For the Encouragement of Piety and Virtue, and for the Preventing and Punishing of Vice, Profaneness and Immorality,” condemning indecent or obscene materials. The first formal law passed to control what people hear, see and read was the Obscene Publications Act 1857 [20 & 21 Vict. c.83; AKA Lord Campbell's Act or Campbell's Act], i.e., the government knows best what is good for citizens. The law was not tested until Regina v. Hicklin [L.R. 3 Q.B. 360 (1868)], which in turn yielded the Hicklin test:
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
The Hicklin test was utilized in both Great Britain and the United States until the Roth ruling. Associate Justice William Joseph Brennan, Jr. wrote for the Court and the 5-4 majority affirmed the lower courts’ rulings on the convictions under 18 U.S.C. §1461. The salient words from Brennan’s opinion that replaced the Hicklin test . . . to be judged obscene the material in question must have a “tendency to deprave or corrupt its readers” and tend “to stir sexual impulses and lead to sexually impure thoughts.” Associate Justice William Orville Douglas expressed the true essence of travesty of all obscenity laws in his dissenting opinion. “The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment.” He also observed, “Under [the Court’s Roth] test, juries can censor, suppress, and punish what they don't like, provided the matter relates to ‘sexual impurity’ or has a tendency ‘to excite lustful thoughts.’” Thus, the government placed itself as the regulator of thought – only it knows best what is good for each individual citizen. Douglas concluded, “[L]iterature should not be suppressed merely because it offends the moral code of the censor.” Over the years, the Court has backed away from supporting morality laws, but we have such a long way to go to undo centuries of moral projectionist law-making. The journey continues.

News from the economic front:
-- The National Bureau of Economic Research determined that the U.S. recession started in December 2007 and ended in June 2009, based on national economic statistical data. Data are the data. With the economy still staggering, any new recession will not be a continuation of the recession that began in December 2007. Isn’t that a comfort?
-- On Tuesday, the Federal Reserve left benchmark interest rates unchanged and indicated they would withhold additional steps to prod the plodding economic recovery for the time being. The Fed also announced the pace of economic growth is slowing, and there is little to no evidence that inflation would pose a problem in the near future.
-- Déjà vu . . . is it 1939 . . . again? A “fishing vessel” ventured into Japanese waters. The boat and crew were detained. The People’s Republic of China slapped a trade embargo on all exports to Japan of crucial rare earth elements used in products like hybrid cars, wind turbines and guided missiles.
-- Blockbuster filed voluntary Chapter 11 petitions with the U.S. Bankruptcy Court for the Southern District of New York, as the company struggles amid major shifts in how consumers view movies and other media. A sign of the time . . . ay!

No comments or contributions from Update no.457.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)