Free speach saved by Venn-diagram

[Cees Binkhorst]

REPLY TO: D66 at nic.surfnet.nl

Een soortgelijk moment voor Nederland was het optreden van Phil Bloom ;)
Wikipedia: In oktober 1967 verscheen de 21-jarige Phil Bloom geheel naakt
in het VPRO-programma Hoepla, wat een baanbrekende primeur voor de
Nederlandse televisie was. Het leidde tot grote commotie, en zelfs tot
vragen in de Tweede Kamer. Ook haalde Phil met haar optreden de
internationale pers. Het was voor Playboy aanleiding om een interview van
haar te plaatsen in de uitgave van oktober 1968 met de kop "TV's first
nude".

Op het ogenblik is er nog een soortgelijke situatie als toen met
'obsceniteit'
Als een voorwerp, waarop copyright-rechten van toepassing zijn, onze
douane passeert en deze is van mening dat die rechten niet gerespecteerd
worden, wordt het voorwerp in beslag genomen.
Of dit nu geneesmiddelen voor Afrika zijn, of een design-onderbroek maakt
niets uit.

Groet / Cees

PS. Free 'information' ;)

http://www.nytimes.com/2009/07/21/opinion/21kaplan.html
July 21, 2009
Op-Ed Contributor
The Day Obscenity Became Art
By FRED KAPLAN

TODAY is the 50th anniversary of the court ruling that overturned
America’s obscenity laws, setting off an explosion of free speech — and
also, in retrospect, splashing cold water on the idea, much discussed
during Sonia Sotomayor’s Supreme Court confirmation hearings, that judges
are “umpires” rather than agents of social change.

The historic case began on May 15, 1959, when Barney Rosset, the publisher
of Grove Press, sued the Post Office for confiscating copies of the
uncensored version of D. H. Lawrence’s 1928 novel “Lady Chatterley’s
Lover,” which had long been banned for its graphic sex scenes.

Most lawyers of the time would have advised Mr. Rosset that he had a weak
case. Back in 1873, Anthony Comstock, the former postal inspector who
founded the New York Society for the Suppression of Vice, had persuaded
Congress to pass a law outlawing obscenity, which state and federal courts
came to define over the decades as works that “community standards” would
regard as “lustful,” “lewd,” “lascivious” or “prurient.”

As recently as 1957, the Supreme Court had ruled in Roth v. United States
— a case involving a bookseller who sent erotic literature through the
mail — that the First Amendment’s guarantees of free speech did not apply
to obscenity. The case against “Lady Chatterley’s Lover” seemed cut and
dry; whatever the book’s literary merits, it met the legal definition of
obscenity.

However, Mr. Rosset hired a lawyer named Charles Rembar, whom he’d met
playing tennis in the Hamptons. Rembar had never argued a case in court
but was an adviser to several writers, including his cousin Norman Mailer.
(When Mailer wrote “The Naked and the Dead,” his career-sparking World War
II novel, Rembar advised him to avoid legal controversy by spelling his
characters’ most common utterance “fug.” The trick worked.)

Looking over the Roth decision, Rembar spotted a loophole. The opinion,
written by Justice William J. Brennan, noted that the First Amendment’s
purpose was “to assure unfettered interchange of ideas” and that “all
ideas having even the slightest redeeming social importance — unorthodox
ideas, controversial ideas, even ideas hateful to the prevailing climate
of opinion — have the full protection of the guarantees.” But, Brennan
went on, “implicit in the history of the First Amendment is the rejection
of obscenity as utterly without redeeming social importance.”

Rembar mulled over a question that Brennan apparently hadn’t considered:
What if a book met the standards of obscenity yet also presented ideas of
“redeeming social importance”? By Brennan’s logic, wouldn’t it qualify for
the First Amendment’s protection after all?

On a sheet of paper, Rembar drew two slightly overlapping circles. He
labeled one circle “Material appealing to prurient interests.” He labeled
the other “Material utterly without social importance.” By Brennan’s
reasoning, only material that fell inside both circles — that was both
prurient and worthless — should be denied the privileges of free speech.

This was the argument that Rembar made before Judge Frederick van Pelt
Bryan of the United States District Court for the Southern District of New
York. With the assistance of several literary critics’ testimony, he
presented “Lady Chatterley” as a novel of ideas that inveighed against sex
without love, the mechanization of industrial life and morbid hypocrisy.

The United States attorney representing the Post Office, S. Hazard
Gillespie Jr., thought Rembar had misread the law, and he recited a clause
of the Roth ruling that Rembar had omitted. Justice Brennan had written
that controversial ideas “have the full protection” of the First Amendment
— “unless,” Gillespie underlined, these ideas were “excludable because
they encroach upon the limited area of more important interests.” One of
those interests, surely, was keeping obscenity under wraps. Hence Rembar’s
argument was irrelevant.

This was, however, just the rebuttal Rembar was hoping for. He pointed out
a footnote in which Brennan elaborated on what kind of “more important
interests” were “excludable.” All of them involved actions — peddling,
picketing, parading without a license, playing loud music from a truck.
The First Amendment didn’t protect any of that. But none of Brennan’s
examples involved writing — expression unattached to conduct. Pure
expression could be forbidden, Rembar argued, only if it was “utterly
without social importance.”

On July 21, 1959, Judge Bryan ruled in favor of Grove Press and ordered
the Post Office to lift all restrictions on sending copies of “Lady
Chatterley’s Lover” through the mail. This, in effect, marked the end of
the Post Office’s authority — which, until then, it held absolutely — to
declare a work of literature “obscene” or to impound copies of those works
or prosecute their publishers. This wasn’t exactly the end of obscenity as
a criminal category. Into the mid-1960s, Barney Rosset would wage battles
in various state courts over William Burroughs’s “Naked Lunch” and Henry
Miller’s “Tropic of Cancer,” other Grove novels now widely regarded as
classics. But the “Chatterley” case established the principle that allowed
free speech its total victory.

The Post Office did appeal Judge Bryan’s verdict; a panel of four judges
upheld it unanimously. The government’s lawyers decided not to appeal
further to the Supreme Court. They knew that they would lose — that the
justices who, just two years earlier, had excluded this sort of literature
from constitutional protection would now change their minds. They knew
that Rembar’s creative view of Justice Brennan’s opinion — a view that
Brennan had not explicitly considered when he wrote it — was logically
unassailable.

The case also made clear that laws are more complex than strike zones or
foul lines, which is why the analogy between judges and umpires is so
misleading.

The distinction is sharpened by another argument Rembar made during the
“Lady Chatterley” trial. “A novel, no matter how much devoted to the act
of sex,” he said, “can hardly add to the constant sexual prodding with
which our environment assails us.” In the mass media of the day, with its
appeals to a booming youth market, movies and advertisements were often
“calculated to produce sexual thoughts and reactions,” to the point where
“we live in a sea of sexual provocation.”

In short, “community standards” were radically changing. The proof was
that, after the ban on “Lady Chatterley” was lifted, the book reached the
No. 2 slot on The New York Times best-seller list (topped only by Leon
Uris’s “Exodus”) and, within a year, sold two million copies.

For many decades, the courts upheld racial segregation; then, suddenly,
they didn’t. For many decades, the courts let the Post Office decide which
books people could read; then, suddenly, they didn’t. In both cases, and
many others that could be cited, the laws hadn’t changed; society did. And
the courts responded accordingly.

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