DOCSLIB.ORG

Censorship of Obscenity: the Developing Constitutional Standards

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Censorship of Obscenity: the Developing Constitutional Standards University of Minnesota Law School Scholarship Repository Minnesota Law Review 1960 Censorship of Obscenity: The evelopinD g Constitutional Standards William B. Lockhart Robert C. McClure Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Lockhart, William B. and McClure, Robert C., "Censorship of Obscenity: The eD veloping Constitutional Standards" (1960). Minnesota Law Review. 2550. https://scholarship.law.umn.edu/mlr/2550 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Censorship of Obscenity: The Developing Constitutional Standards The authors discuss the constitutional criteriacontrolling recent decisions of the United States Supreme Court in the area of obscenity censorship and demonstrate that sub- stantial protection has been given to published material dealing with sex. In considering the development of a test to identify "censorableobscenity," they examine the nature of pornography and conclude that it provides a useful guide. They find that "hard-core pornography" is the foundation for the "constant" concept of obscenity cur- rently applied by the Court; and they advocate a "variable" concept which would make the validity of censorship de- pend upon the particularmaterial's primary audience and upon the nature of the appeal to that audience. The authors also discuss: (1) the requirement that material be judged as a whole on the basis of its dominant theme, (2) the weight to be given "redeeming social importance," (3) the protection of "immoral" ideas and the "end of ideolog- ical obscenity," (4) the requirement of scienter, (5)the meaning and application of "contemporary community standards," and (6) the need for independent judicial re- view of obscenity findings. William B. Lockhart* and Robert C. McClure** In 1957, for the first time in its history, the United States Su- preme Court squarely faced the then unresolved problem' of the constitutionality of official censorship of obscenity. It had been presented the problem once before-almost ten years earlier-but on that occasion aborted the case: in Doubleday & Co. v. New York' an equally divided Court affirmed without opinion Dou- * Dean and Professor of Law, University of Minnesota Law School ** Professor of Law, University of Minnesota Law School 1. See Lockhart & McClure, Literature, The Lmv of Obscenity, and the Constitution, 38 MINN. L. REv. 295, 352-58 (1954). 2. 335 U.S. 848 (1948). MINNESOTA LAW REVIEW [Vol. 45:5 bleday's conviction under a New York obscenity statute for pub- lishing Edmund Wilson's Memoirs of Hecate County.3 But by 1957 the deadlock in the Court had been broken,4 and in that year the Court began firmly, though not always unanimously, to mark out constitutional standards governing the censorship of ob- scenity. The process is not yet complete-perhaps it never will be fully completed-but substantial progress has already been made in setting up important safeguards to protect works of aesthetic or other social value.' The extent of the progress may be measured by the fact that an important publisher, justifiably confident of the new constitutional protection, is undertaking the republication of Memoirs of Hecate County and doing it, of all places, in Bos- ton, Massachusetts.6 I. THE SETTING The setting in which these developments took place changed markedly between 1957 and 1960. Both the methods and the tar- gets of the proponents of censorship shifted substantially. In early 1957 the National Office for Decent Literature-popu- larly known as the NODL-was still an effective force in the sup- pression of magazines and paper-bound books it believed to be objectionable.' In response to earlier criticism of some of its prac- tices' the NODL had already changed its name from the "Na- tional Organization for Decent Literature" to the "National Office 3. For an account of the case, see Lockhart & McClure, supra note 1, at 295-301. 4. The deadlock was broken on Feb. 25, 1957, in Butler v. Michigan, 352 U.S. 380 (1957), followed shortly afterwards on June 24, 1957, by Roth v. United States, 354 U.S. 476 (1957), Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), and Adams Newark Theater Co. v. City of Newark, 354 U.S. 931 (1957). For analyses of these and subsequent eases, see pp. 13-47 infra. 5. See DOUGLAS, THE RIGHT OF THE PEOPLE 66 (1958). The new safe- guards are discussed at pp. 47-120 infra. For an excellent analysis of the Supreme Court cases from 1957-1960 see Kalven, The Metaphysics of the Law of Obscenity, THE SUPREME COURT REVIEW 1 (1960). 6. Censorship Scoreboard, Jan. 1960, p. 8. 7. For a description of the NODL and its operations, see Lockhart & McClure, supra note 1, at 304-05, 309-11, and 317-18. See also Rorty, Harassed Pocket-Book Publishers, 15 ANTIOCH REV. 411 (1956). 8. The practices particularly criticized were its use of general boycotts against retail dealers who refused to withdraw from sale the books and magazines listed as objectionable by the NODL, and its tacit consent to the use of its lists by policemen and prosecutors who threatened dealers with criminal prosecution if they failed to withdraw the proscribed items from sale. 10 RECORD OF THE Ass'N OF THE BAR OF THE CITY OF NEW YORK 143 (1955); Bourke, Moral Problems Related to Censoring the Media of Mass Communications, 40 MARQ. L. REV. 57 (1956); Murray, Literature and Censorship, 14 BOOKS ON TRIAL 393 (1956); Fischer, The Harm Good Peo- ple Do, Harpers, Oct. 1956, vol. 213, p. 14; Murray, The Bad Arguments Intelligent Men Make, America. Nov. 3, 1956, vol. 96, p. 120. 1960] CENSORSHIP OF OBSCENITY for Decent Literature" in an effort to disassociate itself from the actions of local NODL extremists.' But it was not until May, 1957, when the American Civil Liberties Union, in a statement signed by 150 persons prominent in literature and the arts, blasted the NODL's methods of operation that the NODL began to decline as a potent force in the suppression of books and magazines."a Since then the NODL has become more the "service organiza- tion" its apologists have claimed it is and less the "action group" its critics said it was1 and as such has removed itself from the center of the controversy over the censorship of literature.' The systematic use of lists by policemen and prosecutors threat- ening dealers with criminal prosecution if they continued to sell the listed publications13 also declined during this period. Detroit's notorious censorship system,14 in full operation at the beginning of 1957, ended before the year was out when the publishers of the hard-cover and paper-bound editions of John O'Hara's Ten North Frederick, one of the many books on the Detroit lists, secured in- junctions restraining the City of Detroit and two of its police of- ficials from making any threat of prosecution to any person selling the book.'5 The prosecuting attorney of St. Clair County, Michi- gan, who had been using the NODL lists, received the same treat- ment 6-- as did the prosecuting attorney of Lake County, Indi- 9. Murray, The Bad Arguments Intelligent Men Make, supra note 8. The change of name came as early as 1955. Fitzgerald, NODL States its Case, America, June 1, 1957, vol. 97, pp. 280 & 281. 10. American Civil Liberties Union [ACLU] Statement on Censorship Activity by Private Organizations and the National Organization for Decent Literature (n.d.); ACLU, Civil Liberties, May 1957, p. 1. For the NODL's reply to the ACLU statement, see Fitzgerald, NODL States Its Case, supra note 9. And for the ACLU's rejoinder, see ACLU, Civil Liberties, Sept. 1957, p. 2. 11. Murray, The Bad Arguments Intelligent Men Make, supra note 8. Despite the changes in the NODL's operations, the ACLU in its 1957 state- ment failed to recognize that these changes had already taken place; and the NODL, in response, ignored the fact that it had earlier encouraged the ac- tivities criticized by the ACLU. See authorities cited note 10 supra. 12. By mid-1958, the ACLU reported: "Possibly as a result of consider- able criticism of the NODL, many local communities engaged in a literay 'clean-up' campaign are now compiling their own lists of offending publi- cations and relying less on the monthly NODL compilation." 38th ACLU ANN. REP. 15 (1958). 13. For a discussion of this method of censorship and its legality, see 22 U. Cm. L. REv. 216 (1954). 14. The Detroit operation is described in Lockhart & McClure, supra note 1, at 314-16. See also Lardner, Let 'enz Eat Newspapers, Newsweek, Mar. 14, 1955, vol. 45, p. 92; The Smut Detective, Newsweek, Mar. 21, 1955, vol. 45, p. 95. 15. American Book Publishers Council [APBC] Censorship Bull., July 1957, p. 3; ABPC, Censorship Bull., Aug. 1958, p. 4. 16. ABPC, Censorship Bull., July 1957, p. 3. MINNESOTA LAW REVIEW [Vol. 45:5 ana."7 The New York City commissioner of licenses, who had writ- ten letters to news dealers threatening them with revocation of their licenses if they continued to sell designated publications, was or- dered to withdraw the letters and to instruct the news dealers to disregard them.' The injunctions against combining disapproved lists with threats of prosecution 9 have not altogether stopped the practice; some of- ficials still continue to issue orders or "requests" to dealers with thinly veiled threats of prosecution. But these instances seem to oc- cur sporadically and are often limited to a particular book or to a single issue of a magazine.2" In only Rhode Island2' and King 17.
Load more

Recommended publications
  • Literature, the Law of Obscenity, and the Constitution William B
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1954 Literature, the Law of Obscenity, and the Constitution William B. Lockhart Robert C. McClure Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Lockhart, William B. and McClure, Robert C., "Literature, the Law of Obscenity, and the Constitution" (1954). Minnesota Law Review. 2546. https://scholarship.law.umn.edu/mlr/2546 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW Journal of the State Bar Association Volume 38 March, 1954 No. 4 LITERATURE, THE LAW OF OBSCENITY, AND THE CONSTITUTION WILLIAm B. LOCKHART* AND ROBERT C. MCCLURE** Early in 1946 when Doubleday & Company, Inc., an old and very large and reputable publishing house,1 published Edmund Wilson's Memoirs of Hecate County, book reviewers and critics had a field day; for Edmund Wilson was then as now the nation's most distinguished literary critic, and this was his first book of fiction since I Was a Daisy, published in 1929.2 To Virgilia Peter- son in Commonweal the Memoirs was "a pathological joke," "a string of satiric stories which, in their aimlessly offensive vulgarity (aimless, unless the aim was in fact to offend) defy description." 3 Others went to the opposite extreme: Ralph Bates in the New York Times called it "a good, a distinguished book,"'4 and Time magazine said that "it was the first event of the year which can be described as 'literary,' " and that it was "pretty certainly the best contempor- ary chronicle, so far, of its place and period." 5 Most reviewers, *Professor of Law, University of Minnesota.
    [Show full text]
  • Age and Sexual Consent
    Per Se or Power? Age and Sexual Consent Joseph J. Fischel* ABSTRACT: Legal theorists, liberal philosophers, and feminist scholars have written extensively on questions surrounding consent and sexual consent, with particular attention paid to the sorts of conditions that validate or vitiate consent, and to whether or not consent is an adequate metric to determine ethical and legal conduct. So too, many have written on the historical construction of childhood, and how this concept has influenced contemporary legal culture and more broadly informed civil society and its social divisions. Far less has been written, however, on a potent point of contact between these two fields: age of consent laws governing sexual activity. Partially on account of this under-theorization, such statutes are often taken for granted as reflecting rather than creating distinctions between adults and youth, between consensual competency and incapacity, and between the time for innocence and the time for sex. In this Article, I argue for relatively modest reforms to contemporary age of consent statutes but propose a theoretic reconstruction of the principles that inform them. After briefly historicizing age of consent statutes in the United States (Part I), I assert that the concept of sexual autonomy ought to govern legal regulations concerning age, age difference, and sexual activity (Part II). A commitment to sexual autonomy portends a lowered age of sexual consent, decriminalization of sex between minors, heightened legal supervision focusing on age difference and relations of dependence, more robust standards of consent for sex between minors and between minors and adults, and greater attention to the ways concerns about age, age difference, and sex both reflect and displace more normatively apt questions around gender, gendered power and submission, and queer sexuality (Part III).
    [Show full text]
  • ESSAY: Eroticism, Obscenity, Pornography and Free Speech Nicholas Wolfson
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Brooklyn Law School: BrooklynWorks Brooklyn Law Review Volume 60 | Issue 3 Article 5 3-1-1994 ESSAY: Eroticism, Obscenity, Pornography and Free Speech Nicholas Wolfson Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Nicholas Wolfson, ESSAY: Eroticism, Obscenity, Pornography and Free Speech, 60 Brook. L. Rev. 1037 (1994). Available at: https://brooklynworks.brooklaw.edu/blr/vol60/iss3/5 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. ESSAY EROTICISM, OBSCENITY, PORNOGRAPHY AND FREE SPEECH Nicholas Wolfson* INTRODUCTION Modern society speaks about sex, Michel Foucault ob- serves, "ad infinitum, while exploiting it as the secret."' As he pointed out, we attempt to explain virtually everything about us in terms of sex. We 'bring [ourselves] almost entirely-our bodies, our minds our individuality, our history-under the sway of a logic of concupiscence and desire."2 Sexual depiction, in the forms modern society terms "por- nography" or "obscenity," is a multi-billion dollar industry.3 It is also the object of regulatory concern by the government and important movements in society.4 The debate about pornogra- phy begins with one fundamental question: what is it?5 The hotly disputed answers inevitably turn on sometimes violently contrasting notions of the good and evil life.6 Pornography is a running debate about issues deep in the human psyche, issues more fundamental than virtually all of the political topics that * Professor of Law, University of Connecticut School of Law.
    [Show full text]
  • Involuntariness, Obscenity, and the First Amendment
    NOTE CRIMINALIZATION IN CONTEXT: INVOLUNTARINESS, OBSCENITY, AND THE FIRST AMENDMENT Cynthia Barmore* “Revenge porn,” referring to the distribution of sexually explicit images without the consent of those featured, is a growing problem in the United States. New Jersey and California were the first states to criminalize the practice, but state legislatures around the country have been passing and considering similar laws in recent months. Proponents of legislation, however, are confronting critics who protest that the First Amendment precludes criminal liability for distributing lawfully acquired true material. This Note provides the first in-depth analysis of how obscenity law can and should be used to criminalize revenge porn within the boundaries of the First Amendment. While no state legislature has characterized revenge porn as ob- scenity, this Note argues they should because the obscenity context provides the greatest insulation from a First Amendment challenge. If drafted to prohibit ob- scenity, such laws would enable states to robustly and constitutionally criminalize revenge porn, even when the photographer is the person objecting to distribution or the distributor acts without intent to cause serious emotional distress. The hope is this Note will guide legislatures to draft constitutionally responsible legis- lation to combat revenge porn. INTRODUCTION....................................................................................................... 448 I. CRIMINAL AND CIVIL PENALTIES FOR REVENGE PORN....................................
    [Show full text]
  • October 2011 Newsletter.Pub
    Community Board # 4 315 Wyckoff Avenue, 2nd Fl., Brooklyn, NY 11237 Tel.#: (718) 628-8400 / Fax #: (718) 628-8619 Email: [email protected] Monthly Community Board # 4 Meeting Hope Gardens Multi-Service Center 195 Linden Street (Corner of Wilson Avenue), Brooklyn, NY 11237 Wednesday, October 19, 2011 at 6:00 PM Public Hearing Item(s) 1. MTA-NEW YORK CITY TRANSIT-Station renewals on M-Line Central Avenue & Knickerbocker Avenue. Regular Board Meeting Agenda: 1. First Roll Call 7. Recommendations 2. Acceptance of Agenda 8. Old Business 3. Acceptance of Previous Meeting’s Minutes 9. New Business 4. Chairperson’s Report 10. Announcements (1.5 minutes only) Introduction of Elected Officials (Representative) 11. Second Roll Call 5. District Manger’s Report 12. Adjournment 6. Committee Reports: • Environmental/Transportation-Eliseo Ruiz • Health/Hospital & Human Services-Mary McClellan • Housing Land-Use-Martha Brown • Public Safety-Barbara Smith • Youth & Education-Virgie Jones 83rd Precinct Community Council Meeting The Next CEC 32 Meeting Tuesday, October 18, 2011 Thursday, October 20, 2011 480 Knickerbocker Avenue P.S. 299 corner Bleecker Street 88 Woodbine Street (Muster Room—6:30PM) (Bet. Bushwick & Evergreen Aves.) Featuring: “Domestic Violence Presentation” 6:00 PM-Working Session / 7:00 PM-Public Sessions Brooklyn Parks Commissioner and Community Board #4 Looking for Parks Stewards (VOLUNTEERS FOR) Maria Hernandez Park, Irving Square Park, Bushwick Playground, Green/Central/Noll These Volunteer Stewards will be part of a brand new community program designed to assist in the maintenance of NYC Parks & Playgrounds. Looming City budget cuts will ultimately affect the manpower responsible for cleaning and maintaining local parks and playgrounds.
    [Show full text]
  • Mexican Law on Obscenity D
    University of Miami Law School Institutional Repository University of Miami Inter-American Law Review 6-1-1975 Mexican Law on Obscenity D. Rangel Medina Follow this and additional works at: http://repository.law.miami.edu/umialr Part of the Foreign Law Commons Recommended Citation D. Rangel Medina, Mexican Law on Obscenity, 7 U. Miami Inter-Am. L. Rev. 337 (1975) Available at: http://repository.law.miami.edu/umialr/vol7/iss2/5 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami Inter- American Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. MEXICAN LAW ON OBSCENITY DAVID RANGEL MEDINA* STATUTORY ENACTMENTS Among individual guarantees, the political Constitution of the United States of Mexico recognizes the free expression of ideas and freedom of publication.1 However, this freedom is not without restrictions; it has some limitations. Thus, Art. 6 establishes that the expression of ideas shall not be subject to any judicial or administrative inquiry except in the event that it attacks morality,, infringes the rights of others, provokes a crime, or disturbs the public order. Art. 7 provides that freedom of expression or publication in connection with any subject is inviolable, adding that no law nor authority may establish preliminary censorship nor restrict freedom of publication. This freedom has limits, among others, respect for morality. The basic principles which limit freedom of expression and freedom of publication established by the Constitution are detailed and clarified in the Law of Publications (1917),2 regulatory of Art.
    [Show full text]
  • Sexercising Our Opinion on Porn: a Virtual Discussion
    Psychology & Sexuality ISSN: 1941-9899 (Print) 1941-9902 (Online) Journal homepage: http://www.tandfonline.com/loi/rpse20 Sexercising our opinion on porn: a virtual discussion Elly-Jean Nielsen & Mark Kiss To cite this article: Elly-Jean Nielsen & Mark Kiss (2015) Sexercising our opinion on porn: a virtual discussion, Psychology & Sexuality, 6:1, 118-139, DOI: 10.1080/19419899.2014.984518 To link to this article: https://doi.org/10.1080/19419899.2014.984518 Published online: 22 Dec 2014. Submit your article to this journal Article views: 130 View Crossmark data Citing articles: 4 View citing articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rpse20 Psychology & Sexuality, 2015 Vol.6,No.1,118–139, http://dx.doi.org/10.1080/19419899.2014.984518 Sexercising our opinion on porn: a virtual discussion Elly-Jean Nielsen* and Mark Kiss Department of Psychology, University of Saskatchewan, Saskatoon, SK, Canada (Received 1 May 2014; accepted 11 July 2014) A variety of pressing questions on the current topics and trends in gay male porno- graphy were sent out to the contributors of this special issue. The answers provided were then collated into a ‘virtual’ discussion. In a brief concluding section, the contributors’ answers are reflected upon holistically in the hopes of shedding light on the changing face of gay male pornography. Keywords: gay male pornography; gay male culture; bareback sex; pornography It is safe to say that gay male pornography has changed. Gone are the brick and mortar adult video stores with wall-to-wall shelves of pornographic DVDs and Blu-rays for rental and sale.
    [Show full text]
  • In the Supreme Court of Iowa
    IN THE SUPREME COURT OF IOWA No. 10–0898 Filed July 27, 2012 MALL REAL ESTATE, L.L.C., an Iowa Limited Liability Company, Appellant, vs. CITY OF HAMBURG, an Iowa Municipal Corporation, Appellee. Appeal from the Iowa District Court for Fremont County, Greg W. Steensland, Judge. An establishment appeals an order denying its request for an injunction enjoining a city from enforcing an ordinance regulating nude dancing. REVERSED AND REMANDED WITH INSTRUCTIONS. W. Andrew McCullough, Midvale, Utah, and Brian B. Vakulskas and Daniel P. Vakulskas of Vakulskas Law Firm, Sioux City, for appellant. Raymond R. Aranza of Scheldrup Blades Schrock Smith Aranza, P.C., Cedar Rapids, for appellee. 2 WIGGINS, Justice. The operator of an establishment offering nude and seminude dance performances sought an injunction restraining a city from enforcing its ordinance regulating nude and seminude dancing. The district court found that state law did not preempt the ordinance and that the ordinance was constitutional. On appeal, we find that state law preempts enforcement of the ordinance and that it is unenforceable against the establishment. Accordingly, we reverse the judgment of the district court and remand the case with instructions to the court to enter an order enjoining the city from enforcing its ordinance against the establishment. I. Background Facts and Proceedings. On December 8, 2008, the Hamburg city council passed chapter 48 of its city code. The ordinance, known as the “Sexually Oriented Business Ordinance,” contains provisions relating to licensing and zoning and imposes a range of regulations upon sexually oriented businesses. The stated purpose of the ordinance is to “regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses.” Hamburg, Iowa, Code § 48.010.01 (Dec.
    [Show full text]
  • Sex Is Less Offensive Than Violence: a Call to Update Obscenity Jurisprudence Rachel Elizabeth Simon
    Seton Hall University eRepository @ Seton Hall Law School Student Scholarship Seton Hall Law 5-1-2014 Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence Rachel Elizabeth Simon Follow this and additional works at: https://scholarship.shu.edu/student_scholarship Recommended Citation Simon, Rachel Elizabeth, "Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence" (2014). Law School Student Scholarship. 575. https://scholarship.shu.edu/student_scholarship/575 SEX IS LESS OFFENSIVE THAN VIOLENCE: A CALL TO UPDATE OBSCENITY JURISPRUDENCE TABLE OF CONTENTS I. Introduction ............................................................................................................................... 2 II. The State of Obscenity ........................................................................................................... 2 A. The “Inherent Morality” Standard ................................................................................................. 2 B. Sex and Violence Under the “Inherent Morality” Standard ......................................................... 5 1. Regulation of Sexual Expression .................................................................................................... 6 2. Why Offensiveness vis-à-vis Sex Is Not Unconstitutionally Vague ............................................. 11 3. Regulation of Violent Expression ................................................................................................. 13 4. Why Violent Expression
    [Show full text]
  • Merchants Of
    Introduction The Jews never faced much anti-Semitism in America. This is due, in large part, to the underlying ideologies it was founded on; namely, universalistic interpretations of Christianity and Enlightenment ideals of freedom, equality and opportunity for all. These principles, which were arguably created with noble intent – and based on the values inherent in a society of European-descended peoples of high moral character – crippled the defenses of the individualistic-minded White natives and gave the Jews free reign to consolidate power at a rather alarming rate, virtually unchecked. The Jews began emigrating to the United States in waves around 1880, when their population was only about 250,000. Within a decade that number was nearly double, and by the 1930s it had shot to 3 to 4 million. Many of these immigrants – if not most – were Eastern European Jews of the nastiest sort, and they immediately became vastly overrepresented among criminals and subversives. A 1908 police commissioner report shows that while the Jews made up only a quarter of the population of New York City at that time, they were responsible for 50% of its crime. Land of the free. One of their more common criminal activities has always been the sale and promotion of pornography and smut. Two quotes should suffice in backing up this assertion, one from an anti-Semite, and one from a Jew. Firstly, an early opponent of the Jews in America, Greek scholar T.T. Timayenis, wrote in his 1888 book The Original Mr. Jacobs that nearly “all obscene publications are the work of the Jews,” and that the historian of the future who shall attempt to describe the catalogue of the filthy publications issued by the Jews during the last ten years will scarcely believe the evidence of his own eyes.
    [Show full text]
  • Reconstructing the Law of Voyeurism and Exhibitionism
    TO SEE AND BE SEEN: RECONSTRUCTING THE LAW OF VOYEURISM AND EXHIBITIONISM Stuart P. Green* INTRODUCTION Lady Godiva was an 11th-century Anglo-Saxon noblewoman who lived with her husband, Lord Leofric, in the English village of Coventry.1 According to a legend dating back to as early as the 13th century, the compassionate Godiva, concerned about the harsh tax burden her husband had placed on his subjects, appealed to him, over and over, for their relief. At last, weary of her entreaties, Leofric set forth this challenge: if his wife would ride naked through the center of town, the tax would be lifted. Lady Godiva took him at his word, and the next day rode her horse down the main street of Coventry, covered only by her long hair. According to one version of the legend, a proclamation was issued that all persons should stay indoors and shutter their windows during Godiva’s ride.2 According to an alternate version, the people stayed indoors voluntarily, shuttered behind closed windows as a gesture of respect and appreciation for her actions on their behalf.3 In the end, Lord Leofric made good on his promise and announced that the tax burden on his subjects would indeed be lifted.4 A subplot in a later version of the Lady Godiva legend involves the role of a young tailor known forever after as “Peeping Tom.” According to the story, the lustful Tom drilled a hole in his shutters so that he might see Godiva pass. As divine punishment, Tom was subsequently struck blind (or dead, according to yet * Distinguished Professor of Law, Rutgers Law School; Leverhulme Visiting Professor of Law, London School of Economics (2016–17).
    [Show full text]
  • Fifty Shades and Fifty States: Is BDSM a Fundamental Right? a Test for Sexual Privacy
    William & Mary Bill of Rights Journal Volume 26 (2017-2018) Issue 3 Article 9 March 2018 Fifty Shades and Fifty States: Is BDSM a Fundamental Right? A Test for Sexual Privacy Elizabeth Mincer Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, Fourteenth Amendment Commons, and the Sexuality and the Law Commons Repository Citation Elizabeth Mincer, Fifty Shades and Fifty States: Is BDSM a Fundamental Right? A Test for Sexual Privacy, 26 Wm. & Mary Bill Rts. J. 865 (2018), https://scholarship.law.wm.edu/wmborj/vol26/ iss3/9 Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj FIFTY SHADES AND FIFTY STATES: IS BDSM A FUNDAMENTAL RIGHT? A TEST FOR SEXUAL PRIVACY Elizabeth Mincer* INTRODUCTION In 2012, the Fifty Shades of Grey trilogy took the literary world by storm, selling over 100 million copies worldwide, resulting in a film adaptation that has grossed over $500 million internationally at the box office.1 The books, which chronicled the erotic love story between two characters, were featured at the top of the Times Best- seller List2 and have forged their way into popular culture.3 However, it was not the literary scholarship that caused the books to become so popular, but the subject mat- ter.4 Fifty Shades of Grey went beyond the classic romance novel, and delved into the secret world of domination and submission, exposing the masses to what had long been taboo.5 Bondage/Domination/Sado-Masochism (BDSM) can be defined as “a range of sexual preferences that generally relate to enjoyment of physical control, psycholog- ical control, and / or pain.”6 Studies have shown that up to 36% of all Americans * Elizabeth Mincer is a JD Candidate at William & Mary Law School; JD expected May 2018.
    [Show full text]