Pornography and Censorship

By David Copp; Susan Wendell | Go to book overview

NOTES
1.
"For nearly 130 years after its adoption, the First Amendment received scant attention from the Supreme Court"; Emerson, The Doctrine of Prior Restraint, 20 L. & Cont.Problems ( 1955) 648, 652.
2.
See, e. g., Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031.
3.
The judicial enforcement of some private rights -- as in suits, e. g., for defamation, in-- jury to business, fraud, or invasion of privacy -- comes within the exception.
4.
Lockhart and McClure, Obscenity and the Constitution, 38 Minn.L.Rev. ( 1954) 295, 357; cf. Kalven, The Law of Defamation and the First Amendment, in ( University of Chicago) Conference on the Arts, Publishing and the Law ( 1952) 3, 12.
5.
Chafee, The Blessings of Liberty ( 1956) 69.
6.
See Van Doren, Benjamin Franklin ( 1938) 150-151, 153-154. Franklin Letter to The Academy of Brussells (see Van Doren, 151-152) might be considered "filthy."
7.
18 U.S.C. § 1461.
8.
Jefferson, Notes on the State of Virginia ( 1781-1785), Query VI; See Padover, The Complete Jefferson ( 1943) 567 at 612.
9.
Jefferson, Autobiography ( 1821); See Padover, loc. cit., 1119 at 1193.
10.
Jefferson, Anecdotes of Franklin ( 1818); see Padover, loc. cit., 892 at 893.
11.
Padover, the Complete Madison ( 1953) 8-9. . . .
12.
Ernst and Seagle, To The Pure ( 1928) 108. . . .
13.
See Padover, The Complete Madison ( 1953) 295-296.
14.
Madison referred to the "Third Amendment", but the context shows he meant the First.
15.
See Padover, The Complete Madison ( 1953) 267, 268-269.
16.
Padover, The Complete Jefferson ( 1943) 109.
17.
Madison, Address to the General Assembly of Virginia, 1799; see Padover, The Com-- plete Madison ( 1953) 295.
18.
See Padover, The Complete Jefferson ( 1943) 130.
19.
See Padover, The Complete Jefferson ( 1943) 889.
20.
Jefferson Letter to Madison ( 1789); Padover, The Complete Jefferson ( 1943) 123-125. See also Brant, James Madison, Father of the Constitution ( 1950) 267.
21.
The Federalist No. 84; Cahn, The Firstness of the First Amendment, 65 Yale L.J. ( 1956)464.
22.
Madison, Writings ( Hunt ed.) V, 385; Corwin, Liberty Against Government ( 1948) 58-59; Cahn, The Firstness of the First Amendment, 64 Yale L.J. ( 1956) 464, 468.
23.
Wingfield-Stratford, Those Earnest Victorians ( 1930) 151.
24.
See Kaplan, Obscenity as an Esthetic Category, 20 Law & Contemp. Problems ( 1955) 544, 550: In many cultures, obscenity has an important part in magical rituals. In our own, its magical character is betrayed in the puritan's supposition that words alone can work evil, and that evil will be averted if only the words are not uttered."
25.
Wingfield-Stratford, loc. cit., 296-297.
26.
Paradoxically, this attitude apparently tends to "create" obscenity. For the foundation of obscenity seems to be secrecy and shame: "The secret becomes shameful because of its secrecy". Kaplan, Obscenity As An Esthetic Category, 20 Law & Contemp. Problems ( 1955) 544, 556.
27.
To be sure, every society has "pretend-rules" (moral and legal) which it publicly voices but does not enforce. Indeed, a gap necessarily exists between a society's ideals, if at all ex-- alted, and its practices. But the extent of the gap is significant. See, e. g., Frank, Lawlessness, Encyc. of Soc. Sciences ( 1932); cf. Frank, Preface to Kahn, A Court for Children ( 1953).
28.
It is of interest that not until the Tariff Act of 1824 did Congress enact any legislation relative to obscenity.

-352-

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