Today in Supreme Court History: April 7, 1969

4/7/1969: Stanley v. Georgia decided.

The Warren Court (1969)

Comments

[Dan Schiavetta]

Stanley v. Georgia, 394 U.S. 557 (decided April 7, 1969): First and Fourteenth Amendments prohibit criminalizing simple possession of obscene material (8mm films of "nude men and women engaging in intercourse and sodomy") (police were searching home for evidence of criminal bookmaking) (note: according to the statutory definitions, lesbians could not possibly do anything "obscene" because no penis involved)

Wilson v. Snow, 228 U.S. 217 (decided April 7, 1913): upholding old deed where property was properly sold by executrix and "worked" as requested in the Will (which included taking care of the slaves -- this was a really old Will)

Virginia v. Black, 538 U.S. 343 (decided April 7, 2003): This is the case where during oral argument the normally silent Thomas abruptly called cross-burning uniquely designed to cause fear and terrorize a population. Here O'Connor, writing the opinion, holds that Virginia statute criminalizing cross-burning with intent to intimidate does not violate First Amendment, but jury should not have been instructed that the mere fact of cross-burning was prima facie evidence of intimidation. (My only witness to cross-burning, a prank in front of an all-female dorm, had no racial dimension nor was meant to intimidate, and was objected to only by campus born-again Christians.) Thomas dissents.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (decided April 7, 2003): $145 million in punitive damages after only $1 million in compensatory (suit against insurer for bad faith refusal to settle) violated Due Process; Court suggests that normally no more than 10:1 ratio is acceptable (shortly after this case came down I tried a case that went to a punitive damages trial and plaintiff's attorney was careful to suggest an amount exactly ten times the compensatory award)

Delaware v. Van Arsdall, 475 U.S. 673 (decided April 7, 1986): murder verdict vacated because trial judge would not allow witness to be cross-examined as to agreement with prosecutor to testify in exchange for dropping drunk driving charge (which would show bias)

Wells v. Rockefeller, 394 U.S. 542 (decided April 7, 1969): violation of Equal Protection to apportion state partly by population and partly by county (this was New York, where 31 districts were apportioned in the thickly populated downstate by population, and the remaining 10 by grouping together upstate counties)

Stroble v. California, 343 U.S. 181 (decided April 7, 1952): confession to murder was admissible when after arrest defendant kept confessing to anyone who would listen, both before and after retaining counsel

Kaufman v. Societe Internationale et al., 343 U.S. 156 (decided April 7, 1952): shareholders in Swiss company which fell under German control in World War II had standing to sue to recover assets which had been seized by the United States under the Trading with the Enemy Act (related litigation went on for years; in 1965 relatives of property expropriated by the Nazis were opposing restitution to the company, https://www.nytimes.com/1965/03/17/archives/two-relatives-of-nazi-victims-fight-payments-to-interhandel.html)

Donnelly v. United States, 228 U.S. 243 (decided April 7, 1913): White man tried for murder of Native American on Klamath River. Written confession to the murder by another man, deceased, properly excluded as hearsay. The Court cites with approval Queen v. Hepburn, where hearsay proving a slave's free status was excluded. In dissent, Holmes points out that the confession "would have a very strong tendency to make anyone outside of a court of justice believe that Donnelly did not commit the crime".

PacifiCare Health Systems v. Book, 538 U.S. 401 (decided April 7, 2003): dismissing RICO suit by physicians seeking reimbursement from HMO; bound by arbitration clause even though it limited damages recoverable

[The Margrave of Azilia]

In the Kaufmam ("Interhandel") case, Switzerland tried to take the matter to the World Court, only to be told they had to wait until they'd exhausted their remedies in the U. S. courts.

https://icj-cij.org/case/34

[Dilan Esper]

Donnelly is a great example of the fact that hearsay rules are extremely difficult in murder cases. First of all, other than dying declarations and excited utterances, almost anything the victim says is hearsay. That created problems in the OJ Simpson case, among many others, because like many murder victims, Nicole had figured out that OJ was going to kill her and said it to several different people as well as in her diaries.

And second, you have the due process problem that Donnelly exemplifies. A trial doesn't seem "fair" if the defendant cannot introduce even very powerful evidence of his innocence, simply because it is hearsay.

And yet, hearsay rules are extremely old, time-honored, and serve important policy ends. It's a difficult problem.

[Ridgeway]

Wouldn't a 3rd party confession be admissible as a statement against [penal] interest? Was that not an exception back in 1913?

[not guilty]

How would such a statement be against the deceased declarant's penal interest? Prosecution of him would not be possible.

[Ridgeway]

It was against his interest when he made it.

[apedad]

Re: Stanley v. Georgia

Facts of the case

Law enforcement officers, under the authority of a warrant, searched Stanley's home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was then tried and convicted under a Georgia law prohibiting the possession of obscene materials.

Question

Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?

Conclusion (Unanimous)

The Court held that the First and Fourteenth Amendments prohibited making private possession of obscene materials a crime. In his majority opinion, Justice Marshall noted that the rights to receive information and to personal privacy were fundamental to a free society. Marshall then found that "[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." The Court distinguished between the mere private possession of obscene materials and the production and distribution of such materials. The latter, the Court held, could be regulated by the states. (oyez)

Correct.

[Dan Schiavetta]

Yes

This holding seems to extend beyond pornography, to any material on any subject.

[apedad]

Not sure what the child pornography, etc., laws were in 1969, but they are obvious exceptions.

[Dan Schiavetta]

If there was no purchase? What if he just found it lying around in a house he had bought?

[apedad]

Possession should be enough to be found guilty.

Doesn't matter how he obtained it.

[bevis the lumberjack]

Prove that he looked at it.

In the “prior owner left it” hypothetical if the films were tucked away in the attic or stuffed in the back of a closet shelf there’s no way to know that he knew what it was.

[Frank Drackman]

On a Marine Corpse deployment we had a newly commissioned Chaplain who was a real A-hole (they tend to be, for some reason) would wear a flight suit with his "Chaplain's Wings" he'd designed himself, although he wasn't authorized to wear one, then chew out enlisted for being "out of uniform" (they weren't) would wear his "Cover"(hat) on the flight line where it could get sucked into a Jet Engine,
Generally, not well liked
He was never in his Office, so one day we switched out some of the "Reading Material" in his waiting room with ummm,
some "International" Adult Magazines (They have some really good ones in Italy)

Frank

[JasonT20]

A Marine Corpse deployment sounds disrespectful of the dead. Or something that happens in zombie apocalypse movies. It probably would explain the presence of an ahole chaplain, though.

[Mr. Bumble]

Probably got confused by Obama's reference to corpsemen.

[Dr. Ed 2]

Other than it being a good idea, I’ve never seen the basis of the distinction between child porno and other porno.

NB: A good idea that I support -- but that doesn't make it Constitutional...

[apedad]

Age of consent issue.

A minor cannot (legally) consent to sex and therefore cannot consent to be filmed having sex.

[Krychek_2]

There is an issue with respect to computer programs that can generate simulated child pornography that is so well done that it is impossible to tell that they don't involve real children. There has been litigation on the subject. One side argues that since no real children were harmed, it should be protected by the First Amendment. The other side argues that it should not be protected since it makes it impossible for law enforcement to prosecute real child pornography. Every defendant will simply argue that it's a simulation and the state has the burden of proving it's not.

As of now, the law enforcement side has mostly won in the courts.

[Dan Schiavetta]

This reminds me of the dispute that arose in Boston some years ago after a police officer shot a child who had a realistic-looking toy gun, thinking it was real. (It inspired an episode of “Hill Street Blues”.) The city thereupon banned realistic-looking toy guns, because they made it hard for law enforcement to tell the difference.

[Michael P]

There is also federal law on the topic, under the rubric of "imitation firearms": 15 U.S. Code § 5001.

[Dan Schiavetta]

"When shooting that child with a toy gun, Officer, didn't you first check the (tiny) print on it showing that it had been approved by the Secretary of Commerce?"

[Frank Drackman]

He shot a child with a toy gun? Thank god! a real one might have killed the kid!

[Noscitur a sociis]

I don’t think that’s the answer, since

1. Child pornography laws cover depictions of conduct that is legal (e.g. minors over the age of consent but under 18, or lascivious nude depictions of minors by themselves), and

2. The fact that conduct is illegal isn’t in and of itself a justification for banning a depiction of it. See United States v. Stevens, 559 U.S. 460 (2010).

[Dr. Ed 2]

Age of consent is 16 in Massachusetts, memory is that there are a couple of states where it is even lower.

Yet (if I am not mistaken) "kiddie porn" is defined as under 18 -- so your argument implodes when it is a video of two 17 year olds.

But above and beyond that, how does the illegality of the sex act get around the "shall make no law" part? Beyond it being a good idea, what enables *any* statute to supersede the Constitution?

OK, it's sick and perverted, granted, but laws prohibiting sex with a six year old are STATUTES -- state (and maybe federal) laws which can be (and ought to be) enforced. But -- other than perhaps no one wishes to fight it -- how does that pass the bar of "shall make no law"? I can see *seizure* of kiddie porn being Constitutional, and I can see it being probable cause into an investigation of participation in the crime documented, but I can't see mere possession or distribution of it being a Constitutionally-permitted crime.

[apedad]

You acknowledge 'age of consent' is the defining factor.

How does that explode my exact argument?

[not guilty]

"Other than it being a good idea, I’ve never seen the basis of the distinction between child porno and other porno."

The production, distribution and sale of pornographic materials depicting actual children are intrinsically related to the sexual abuse of children. This poses a governmental interest which is absent from materials involving adults.

[Dan Schiavetta]

good point

the question becomes one of “abuse”

Sally Mann’s (I think that was her name) photos of naked children swimming and running around, for example, have been called “child porn” but she was hardly abusing them.

[Dilan Esper]

New York v. Ferber rejected a Stanley defense with respect to child pornography.

[not guilty]

Ferber involved a statute prohibiting distribution of material depicting sexual performances by children, while Stanley did not involve distribution. The child pornography analogue of Stanley is Osborne v. Ohio, 495 U.S. 103 (1990), involving a conviction for simple possession of child pornography.

[not guilty]

"Not sure what the child pornography, etc., laws were in 1969, but they are obvious exceptions."

There is no indication that the films involved in Stanley v. Georgia depicted minors. The reasoning of Stanley> does not extend to simple possession of child pornography in the home, which may constitutionally be criminalized. See, Osborne v. Ohio, 495 U.S. 103 (1990).

[Bob from Ohio]

"no business telling a man, sitting alone in his own house, what books he may read or what films he may watch"

Well, we sure know what he was doing in his own house. Hope he washed his hands before he wrote the opinion.

[John F. Carr]

In July, 2000 police in Attleboro, Massachusetts got a big surprise when they were looking for... we're not sure what but definitely not: "The detective said he saw a man dressed only in a leather jock strap through the doorway and then discovered about 40 people inside in various S&M outfits. He soon called for backup and then obtained a search warrant." (Attleboro Sun Chronicle) Are the old bans on sex devices still enforceable? Is there a sex exception to the rule that one may not consent to a harmful battery? We never did find out because a judge suppressed most of the evidence.

[SRG]

There is no sex exception. There is a sport exception, so evidently there's a strong moral component to this. "You could have beaten the crap out of someone in a boxing ring, or caused concussion on a football field, and no-one would have minded. But consensual sexual assault? man that's un-American"

[SRG]

Re : Delaware v van Arsdall

Let me restate the “harmless error” concept thus: “any error at trial is harmless if we think that the defendant did it.”

[Dr. Ed 2]

"(note: according to the statutory definitions, lesbians could not possibly do anything “obscene” because no penis involved)"

An interesting aside from Maine law -- which mentions "exposing genitalia" as "indecent exposure" -- a group of UMaine women, noting that female genitalia are internal and hence not exposable, went out naked, got arrested, and then at trial asked the arresting officer if he had seen their genitalia -- and he had to respond that he hadn't. The judge tossed the case with the suggestion that the legislature revisit the statute -- and a decade later, I don't believe that they have.

[Mr. Bumble]

Wonder if Dylan could get away with that.

[David Nieporent]

Delaware v. Van Arsdall, 475 U.S. 673 (decided April 7, 1986): murder verdict vacated because trial judge would not allow witness to be cross-examined as to agreement with prosecutor to testify in exchange for dropping drunk driving charge (which would show bias)

Your description of this case is misleading; reading what you wrote, it sounded like a pro-defendant decision. But actually the Delaware Supreme Court had already made that ruling and overturned the conviction, and it wasn't at serious issue here. What SCOTUS actually ruled was that the Delaware Supreme Court had erred by failing to conduct a harmless error analysis. The issue was twofold:

1) Whether the Delaware Supreme Court's decision rested on adequate and independent state grounds, with Rehnquist unsurprisingly coming down in favor of a presumption that it did not; if it did, SCOTUS would have lacked jurisdiction to even hear the case. (It is still amazing to me how many defense counsel still fail to assert and preserve state constitutional claims when they appeal convictions. Doing so potentially gives one two bites at the apple, though conservative SCOTUS justices have bent over backwards to limit one of those.)

2) Whether a state is required to conduct harmless error analysis. Different justices took three positions on this: (1) yes, they're required to do that; (2) no, they're not required to do that, because states can choose more rights-protecting remedy if they want; or (3) they're not allowed to do that; it should be deemed per se a structural error requiring reversal of the conviction.

[Dan Schiavetta]

Sorry! I summarized what happened in the case, but not what the Court did with it. Will change the summary for future use.