After announcing various ridiculous definitions of "obscenity" over the years, the Supreme Court finally settled on this ridiculous definition: It must describe specific sexual acts in a patently offensive way; it must, taken as a whole, appeal to a prurient interest; and it must have no serious literary, artistic, political or scientific value. (A later case clarified that "prurient interest" includes the narrow interests of deviants.)
You're probably thinking: Sexual acts, prurient interest, offensive content and no serious literary value -- that sounds like prime-time TV! I exaggerate. But approximately 90 percent of what Americans now think of as constitutionally protected pornography -- the reason George Washington fought at Valley Forge, what separates us from the communists -- is technically unprotected "obscenity." The states could ban it if they wanted to.
Most state prosecutors don't bother prosecuting obscenity cases anymore because -- well, first, they don't want to take on the entire Harvard Law School faculty. But also because smut just confuses the Supreme Court.
The septuagenarian justices spent most of the '60s watching porno on "movie day" at the court -- a particular delight to Justice Thurgood Marshall, according to Bob Woodward's "The Brethren." The constant sex flicks must have gotten to the old geezers. Every few years they would clean up and issue another incomprehensible, contradictory obscenity ruling.
William Brennan approved of all pornography that was degrading to women but voted against pornography that showed men in a state of arousal. Byron White protected all pornography unless it was "Blue Boy." Potter Stewart defined "obscenity" as "I know it when I see it" -- but he never seemed to see it. William Douglas and Marshall viewed anything tenuously related to sex as "speech."
The one case in the midst of this idiocy that seems to support a right to possess even obscenity in the home is Justice Marshall's opinion Stanley v. Georgia. Somehow bringing non-speech into the home suddenly made it "speech." On this theory, if an artichoke were used as a sexual aid in the home, it would be "speech."
That was too absurd even for the sex-addled justices. A few years later, in United States v. Reidel, the court quickly clarified that Stanley was a privacy case, not a First Amendment case at all. Then in Bowers v. Hardwick (no privacy right to engage in sodomy in the bedroom), the court claimed Stanley was a First Amendment case and not a "privacy" case. Stanley would be a great case for pornographers if the Supreme Court could ever find another case to which it applies.
Admittedly, it seems rather authoritarian for a government official to be reading any citizen's private journal. But the reason Dalton's journal was subject to review is that he is a convicted and paroled child pornographer. If you want to keep a journal private, here's a word to the wise: Try to avoid child pornography convictions.
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