Digital Commons at St. Mary's University Barrister News School of Law Publications 12-1964 Barrister News, volume 12, issue 3 St. Mary's University School of Law Follow this and additional works at: https://commons.stmarytx.edu/barristernews Recommended Citation St. Mary's University School of Law, "Barrister News, volume 12, issue 3" (1964). Barrister News. 24. https://commons.stmarytx.edu/barristernews/24 This Newsletter is brought to you for free and open access by the School of Law Publications at Digital Commons at St. Mary's University. It has been accepted for inclusion in Barrister News by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. ... ... ~ INSIDE: Alumni News President 9s Letter Obscenity and the Court ' .... Barrister News EDITOR'S DESK "A Professional Legal Publication" Edited and Published bl' the Barristers The new format of the BARRISTER NEWS Student Bar Association, St. Mary's University Schoo~ of Law was met with all but unanimous acceptance and praise- not the case, however, with the content. Corrective and sincere criticism l'an the gantlet Affiliated with American Law Student Association from suggesting the editor return to school for re­ tarded grammarians to suggestions our proof read­ VOL. XII DECEMBER, 1964 NUMBER 3 ers test their eye-sight. Why, cried some fraternity men, were we so inequitably treated? You have no business treating Student Bar politics, tiraded some. Public relations?! gasped a few. The sources of out­ Editor in Chief cry were as varied as the epithets. In short, such a Don E. Wittig stir greeted the new production that had the Dallas Morning News supported Senator Ralph Yarborough Associate Editors there could not have been more commotion. Eugene Labay Jim Lytton There are many ways to greet these rumblings. Our reception is one of welcome! For all the emo­ Business Manager tions and intelligence moved, there must have been Terry Topham a stimulus. Layout Ourselves fired by the sparks of interest shown in the last edition, the staff has responded to the Mark Sideman demands of excellence n1ade by our varied critics. Executive Secretary Our hope is that this edition does not meet the dreary fate of "no comment". If there is no dis­ Elaine Schultz paragement cast, then we have no where hit a mark. Editorial Staff THE EDITOR Lou Cappadona M~ke Simmang Dan Rutherford Gale Castillo IN THIS ISSUE Frank Herrera Fred Granberry Marion Carson Nelson Wolff John Carroll 0 bsceni ty, Freedom of Speech and the Supreme Court by Lou Cappadona 3 The Barrister News is published four (4) times each year by the Student Bar Association , St. Mary's University School Fraternity News of law, San Antonio, Texas. Address all correspondence, subscriptions, or changes of address to Barrister News, Edi ­ Delta Theta Phi torial and Executive Office, 112 College Street, San Antonio, Phi Delta Phi __________________ _ ------ --------- 5 Texas. Entered as Second-Class matter at San Antonio, Texas, under Permit 787. Reproduction in any manner, in whole or ALSA Report ____ _ ------------------------------- -- --- 6 in part, in English or other languages, is expressly prohib ited without written permission from the Barrister News, St. Mary's Red Mass and Honorary Degree ___ _ ___________ 7 School of law, San Antonio, Texas. Faculty Corner and Interview ---------- 9 OUR COVER: The highly coveted Doctor of Laws Awards and Honors ____ ____________________________ 11 degree is granted to the Lady of the Hour, Mrs. Elena Kenedy. The solemn occasion was the Scholarship Awards, Delta Alpha Twelfth Annual Red Mass. Complete stories are on Delta and Barrister Notes -- _______ 13 page seven. Pictured to the right of Doctor Ken­ edy is University President, Father Blume; to the Alumni News _ 14 lady's left is Dean Ernest Raba. Student Bar Association 15 2 Lou Cappadona is a native of Jersey City N.J. and he received his B.S. degree from St. Peters Col­ lege in 1961. He was a member of the Aquinas Economics Council, the National Military Honor Society of Scabbard and Blade and a varsity let­ terman on the soccer team. Upon graduation he was awarded scholarships by St. Mary's Law School, Notre Dame Law School and St. John's Law School. He was also designated a Distinguished Military Gradluate and received a Regular Commission as a Second Lieutenant in the Infantry, U.S. Army. After completing the Infantry and Airborne Courses at Ft. Benning, Ga., he was assigned to the 25th. Infantry Division in Schofield Barracks, Hawaii. He was subsequently selected by the Judge Advo­ cate General, U.S. Army to participate in the "Ex­ cess Leave Program" in order to obtain his law de­ gree and become a member of the Army's I~ egal corps. He chose St. Mary's to pursue his legal edu­ cation and entered the Law School in January, 1963. He is a member of Phi Delta Phi Legal Fraternity and the St. Thomas More Club. Last year he was at the Fourth Army Staff Judge Advocate Office, Sergeant-at-Arms of the Barristers Club and is also Ft. Sam Houston. a staff member of the Barrister News. When He is married to the former Patricia Ellis of school is not in session, Lou dons the uniform of Tyler, Texas. They have one daughter, Catherine a First Lieutenant and receives on-the-job training Margaret, who is 10 months old. OBSCENITY, FREEDOM OF SPEECH AND THE SUPREME COURT by LOU CAPPADONA One of the more controversial subjects facing indeed the problem does boil down to what extent the Supreme Court is the censorship and control of the "Freedom of Speech" clause in the Constitution literature which is alleged to be obscene. On first will protect the free expression of ideas, but still impression this matter may appear non-complex and recognize the right of society to protect itself from the remedy rather simple. The classic players in this any obscenity that might threaten it. Mr. Justice drama are the innocent youth of America who are Harlan wrote, "It seems to me clear that it is not being exposed to the filth and immorality freely irrational, in our present state of knowledge, to con­ exhibited and sold at the corner newsstand. The mer­ sider that pornography can induce a type of sexual cenary vendor is perfectly willing to corrupt them in conduct which a State may deem obnoxious to the exchange for a few pennies. All the efforts by the moral fibre of society ... Furthermore, even assum­ decent citizenry to wipe out these vermin are com­ ing that pornography cannot be deemed to cause, pletely stymied however, by "those men on The in an immediate sense, criminal sexual conduct ... Court" who are more concerned with something The State can reasonably draw the inference that called "the right of free speech". over a long period of time the indiscriminate dis­ There is, of course, another side to this touch­ semination of such materials will have an eroding ing vignette. Here the tragic hero is the budding effect on moral conduct." ROTH V U.S., 354 U.S. young genius who has captured the stark truth of 476 (1957). life in all its naked reality and has compiled it into In 1962 Professor Carlos Cadena of this law a magnificent volume. The artists, the enlightened, school, wrote an article entitled "Constitutional the critics and the sophisticates all acclain1 it as a Problems in the Control of Obscene Literature." literary achievement of the highest order. But alas, This article appeared in the Spring 1962 issue of we have, lurking in the wings, those narrow-minded, the Barrister News. The predominant case that Pro­ bigoted, little busybodies. Lacking any perception fessor Cadena treated was ROTH V U.S., 354 U.S. and understanding of truly great literature, they 476 (1957) hereafter referred to simply as ROTH. ignorantly declare our masterpiece to be nothing While not formulating any exact and applicable but obscene trash. ru!es .of law, ROTH did espouse a number of general While the precedino· satire is meant to empha­ pnnc1ples. It reaffirmed the rule that "obscenity is size the situation and perhaps overstate the prob­ not within the area of constitutionally protected free lem, it nevertheless is pertinent to this study. For (Continued on Next Page) 3 OBSCENITY, Cont. workin<r tool for the solution of enforcement prob­ lems". The pitfalls of ROTH are evident. Who is the speech and press". While not declaring that the pub­ "average person'' spoken of? Is it a city, town, state, lications involved were actually obscene, the Court or the entire nation to which "community stand­ did enunciate a number of possible definitions of ards" refer? Moreover, what is "prurient interest"? obscenity. It offered such terms ~s "material w~ich The American Law Institute's Model Penal Code deals with sex in a manner appealing to the prunent defines it as "a shameful or morbid interest in nud­ interest . ... material having a tendency to incite ity, sex, or excretion, which goes substantially b~ ­ lustful thoughts .. lewd .... lascivious and ~ilthy". yond custo:11ary lin1its of candor". The value of this The Court emphasizes that sex and obscenity are definition is best appraised by Professor Harry not synonymous and it is only the port!aya~ of sex Kalven Jr. of the University of Chicago Law School. in a manner which appeals to the prunent Interest Professor Kalven is recognized as one of the leading that constitutes obscenity. commentators on the law of obscenity. In his article ROTH indicated that a test for obscenity is for the "Supreme Court Review", pg.