The Morality of First Amendment Jurisprudence

By Schlafly, Phyllis | Harvard Journal of Law & Public Policy, Winter 2008 | Go to article overview

The Morality of First Amendment Jurisprudence


Schlafly, Phyllis, Harvard Journal of Law & Public Policy


Many people argue that government cannot, or should not, try to dictate morality. (1) But the judiciary, particularly the United States Supreme Court, has dictated immorality through First Amendment jurisprudence. What has achieved greater First Amendment free speech rights than political campaign speech, the Pledge of Allegiance, the Ten Commandments, and the Boy Scout Oath combined? The answer is pornography. Since a series of Warren Court decisions in the 1960s, perhaps no single side of any issue has won in the Supreme Court as often as pornography.

In the early twentieth century, the American people, without resort to government or litigation, maintained a society of decency. Pornography did not appear in neighborhood movie theaters or in popular music. Americans did not need or want government action because Hollywood regulated itself. The Hollywood Production Code, known as the Hays Code, reviewed movie scripts and banned sex, nudity, and profanity. (2) Their efforts contributed to the success of the business; more people went to the movies in the 1940s than go today. (3)

In a 1957 case, Roth v. United States, (4) the Supreme Court declared that "obscenity is not within the area of constitutionally protected speech or press." (5) Calling Roth "the first time the question has been squarely presented to this Court," the majority stated that "expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press." (6) The cases cited in support of this declaration dated back as far as 1877. (7) Another way of reaching the Roth Court's conclusion would be to hold that obscene performances do not qualify as "speech" and obscene publications do not qualify as "press" as those terms are used in the First Amendment. (8)

The supporters of pornography sought to overturn this decision. Charles Rembar, an advocate of constitutional protections for pornography, described their legal strategy in a book entitled The End of Obscenity, and constructed a clever legal argument to persuade Roth author Justice William Brennan to change his position on the issue. (9) Rembar took Justice Brennan's Roth definition of "obscenity as utterly without redeeming social importance" (10) and persuaded him to make "utterly" a constitutional requirement. (11) The new legal test became that pornography cannot be banned "unless it is found to be utterly without redeeming social value." (12)

Justice Brennan adopted this new legal test in the Court's next obscenity case, Memoirs v. Massachusetts, (13) also known as the Fanny Hill case. (14) "Social value" became a key phrase used in winning the Supreme Court's approval of pornography. (15) Justice Brennan was joined in his opinion supporting pornography by Chief Justice Earl Warren and by Justice Abe Fortas, (16) whom President Lyndon Johnson had just appointed to the Supreme Court. Justice Fortas had connections inside Lyndon Johnson's White House, (17) served as an attorney for pornographers, (18) and signed an amicus brief on behalf of pornographers in Roth. (19)

After Memoirs, pornographers dramatically increased their production of movies and invested a significant amount of time and money to bring dozens of cases to the Supreme Court. By the fall term in October 1966, the Supreme Court was flooded with appeals from lower court convictions. This showed the great financial resources of the pornography industry, its determination to change a longstanding culture, and its optimism that it could accomplish this with the assistance of the Warren Court, including the activist liberal Justices Warren, Fortas, Brennan, Black, and Douglas.

In the short space of thirteen months, May 1967 to June 1968, the Warren Court handed down a series of twenty-six decisions that changed dramatically the law of obscenity. (20) These decisions elevated pornography and other assaults on decency to the level of a First Amendment right.

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