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Law & Disorder: The Courts' Schizo View of Sexual Speech

Law & Disorder: The Courts' Schizo View of Sexual Speech

PORN VALLEY—The following is AVN Senior Editor Mark Kernes' contribution to the Woodhull Sexual Freedom Alliance's State of Sexual Freedom in the United States 2011 Report. The full report can be found here.

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Introduction

If the past few years have shown nothing else, they have made clear the importance of having a socially progressive Democrat—or, though unlikely, a socially progressive third party candidate—in the White House. Why? Because the president is the one person in the United States who submits nominees for the U.S. Supreme Court to the Senate for confirmation. And why is that important? Because presidents, senators and congresspeople come and go, but Supreme Court justices stay in power for as long as they wish, barring death or impeachment, and their opinions on matters of sexuality (in the broadest sense) affect American culture for decades, if not centuries. The same is true of all federal judges, though their overall effect is usually somewhat less. And nowhere is that concept more important to Woodhull Sexual Freedom Alliance supporters than in the area of adult entertainment (that is, sexual) content (though their rulings on sexual conduct are surely a close second).

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Consider, for instance, that in overturning the ban on corporate expenditures for political candidate advocacy in Citizens United v. Federal Election Commission, the high court had to overturn its own 1990 decision, Austin v. Michigan Chamber of Commerce, in which the then-justices had recognized "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." The practical effect of Austin's rejection, which could easily be seen in the 2010 elections, was to allow super-rich religious fundamentalist and conservative corporate donors to buy unlimited ads for, and in many other ways exorbitantly support, the campaigns of religiously conservative candidates in federal (and state) elections—whose very first order of business when elected to the new Congress was to attempt to restrict abortion rights and women's access to contraception—a topic undoubtedly covered more fully in other sections of this report. However, the point to be made here is, the most pertinent parts of the Citizens United decision turned on a direct "party line" vote: The court's five conservative justices—Kennedy (who's sometimes not so conservative but who delivered this opinion), Alito, Scalia, Thomas and Chief Justice Roberts—voted for lifting the ban; the more liberal justices—Stevens, Ginsburg, Breyer and Sotomayor—voted against its more onerous provisions.

The State of Adult Sexual Content in the US

The state of adult sexual content in the U.S. in 2011 is a confused one. I will cover three Supreme Court decisions which, had the majority applied its own logic to the issue of explicit sexual content, would have turned federal obscenity law on its head—and still might, given the modern high court's propensity for overturning its own precedents when it suits them to do so. Hence, it is important to analyze those decisions as they should apply to hardcore pornography that allegedly "crosses the line" into obscenity.

As readers are no doubt familiar, federal (and most states') obscenity laws are governed by the Supreme Court's 1973 decision in Miller v. California. Distilled to its basics, and having gone through a minor tweak or two, Miller describes—but does not define!—the (incredibly vague) criteria to be used in attempting to prosecute a particular work for obscenity: The work, taken as a whole, must appeal to the "prurient interest" (usually described as a "morbid or unhealthy interest in sex or excretion") of the "average person" applying "contemporary community standards"; must depict or describe explicit sexual conduct (as defined by applicable state or federal law) in a "patently offensive way"; and, taken as a whole, must be without "literary, artistic, political or scientific value." A Ninth Circuit ruling in U.S. v. Kilbride & Schaffer defined the "community standard" for internet content to be a national standard, but absent Supreme Court review, such ruling only applies to the nine western states covered by the Ninth Circuit.

The idea that obscenity laws are unconstitutional under the First and Ninth Amendments has been previously discussed (See "Prosecuting Porn: A Journalist's Perspective," State of Sexual Freedom in the United States 2010 Report, pg. 56), but beyond the fact that only one state—Massachusetts—had anything approaching an obscenity law for the first 33 years of this country's existence, there is ample evidence that the First Amendment's unequivocal free speech right was more influenced in its creation by the "natural rights" philosophies of founder John Locke than by the more traditionalist Sir William Blackstone. Locke's essentially secularist libertarian views, which emphasized education in critical-thinking skills and the need to treat people, particularly the young, as "Rational Creatures," were "popularized, and fused with the republican political tradition" by early political commentators John Trenchard and Thomas Gordon, who together published the weekly periodical The Independent Whig, and who pseudonymously wrote Cato's Letters, a series of 144 political tracts published in the 13 colonies in the early 18th century.

The Locke/"Cato" philosophy of free speech, at least as that concept was embodied in Oregon's Constitution, was explored by Oregon Appeals Court Judge W. Michael Gillette in a 2005 case, State v. Ciancanelli, where the court expanded on the anti-Blackstonian concept that at least as far as speech was concerned, the state's primary duty was to enforce the fundamental, "natural" rights of individuals rather than to "protect society as a whole from undesirable 'tendencies' or to promote the majority's idea of a greater good."

Obviously, the Framers' thoughts on the U.S. Constitution's free speech and press clauses could stand quite a bit more scholarship, but what's become clear in several of the U.S. Supreme Court's speech-related decisions over the past two years is that aside from what Chief Justice John Roberts characterized as "historic and traditional categories" of acceptable limitations on speech, which he described as "well-defined and narrowly limited," the conservative wing of the high court has shown itself willing to perform the most amazing legal and semantic contortions to continue to exempt "obscene" sexual speech from constitutional protection.

Research and Case Studies

Case Study #1—U.S. v. Stevens: Videotaping criminal activity is legal. Videotaping legal activity is criminal.

The first recent example of this occurred in U.S. v. Stevens (#08-769, decided April 20, 2010), where the high court, in an 8-1 decision, ruled that petitioner Robert J. Stevens had a First Amendment right to sell videos of dogs fighting, often to the death.

Early on in the decision, Roberts notes that although the Solicitor General had correctly argued to the court in October 2009 that American law has a long history of prohibiting cruelty to animals, "we are unaware of any similar tradition excluding depictions of animal cruelty from 'the freedom of speech' codified in the First Amendment, and the Government points us to none."

In other words, laws against staging dogfights for public or private viewing are perfectly OK because such acts are cruel to animals, but laws against recording those fights for eventual sale are not, even though to create such recordings, dogs would have to fight each other. Contrast that with the fact that there is nothing illegal about humans having consensual sex with each other, consensually binding and disciplining each other or even pissing or shitting on each other, but in some cases, recording such acts on videotape or DVD is illegal under Supreme Court doctrine.

The majority in the Stevens case dug itself in even deeper as it attempted to distinguish its ban on child pornography in New York v. Ferber from the dogfight videos at issue here. After hair-splitting that minors engaged in sexual activity are "intrinsically related" to child porn videos, but dogfights are somehow not so related to dogfight videos,  the majority looked with favor on Stevens' preemptive challenge (since he hadn't yet been busted under it) to the anti-animal-cruelty-video law, 18 U.S.C. §48. Roberts, writing for the majority, asserts:

"In the First Amendment context, however, this Court recognizes 'a second type of facial challenge,' whereby a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep'. Stevens argues that §48 applies to common depictions of ordinary and lawful activities, and that these depictions constitute the vast majority of materials subject to the statute. The Government makes no effort to defend such a broad ban as constitutional. Instead, the Government's entire defense of §48 rests on interpreting the statute as narrowly limited to specific types of 'extreme' material ... We read §48 to create a criminal prohibition of alarming breadth."

It does indeed—but it merely copied the "criminal prohibition of alarming breadth" that the high court has officially accepted for nearly 40 years: The government's power to charge any sexually explicit content with "obscenity," even though the vast majority of federal obscenity prosecutions, "judged in relation to the statute's [for the sake of argument] plainly legitimate sweep," have ended in "not guilty" verdicts! Shouldn't that invalidate the federal obscenity statutes?

What's even funnier are the exceptions built into §48's sweeping ban, which Roberts terms, "The only thing standing between defendants who sell such depictions and five years in federal prison."

But after admitting that, "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation," Roberts nonetheless inadvertently recognizes that the very quality—vagueness—that invalidates the anti-animal-cruelty-video law should also invalidate federal obscenity laws. It's therefore incredible that he can write, "But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." Try to tell that to the thousands of adult retailers who've been busted for selling obscenity, only to have their charges thrown out by socially aware juries! The opinion continues:

"This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted [1999], the Executive Branch announced that it would interpret §48 as covering only depictions 'of wanton cruelty to animals designed to appeal to a prurient interest in sex.' No one suggests that the videos in this case fit that description. The Government's assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading."

Amazing! But when it comes to sexually explicit videos, the overwhelming majority of which do not remotely appeal to even the government's ill-defined idea of "prurient interest," anti-obscenity laws are still OK. And yet, earlier in the decision, where the majority recognizes that, "The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude ... Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions," a simple substitution of "hardcore videos" for "hunting depictions" and "obscene videos" for "crush videos or animal fighting depictions" should signal that the Stevens decision means that federal obscenity laws should fall under a facial challenge if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep."

Of course, it didn't, and it won't, as long as the makeup of the high court remains unchanged.

Case Study #2—Snyder v. Phelps:  Speech that upsets grieving parents is not obscene. Speech that upsets conservative churchgoers is obscene.

The next speech decision with implications for sexual freedom jurisprudence was Snyder v. Phelps, where Fred Phelps, the founder of the Westboro Baptist Church of Topeka, Kansas, and two of his daughters were sued for defamation, intentional infliction of emotional distress and several similar torts for picketing the funeral of Marine Lance Corporal Matthew Snyder, carrying signs reading, "God Hates the USA/Thank God for 9/11," "America is Doomed," "Thank God for Dead Soldiers," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and other similar slogans. Lower courts had found in favor of Snyder's father, the plaintiff, and awarded him roughly $5 million in punitive and compensatory damages. The high court, of course, reversed, to the consternation of many. Writing for the court's majority near the beginning of the opinion, Roberts states:

"Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. '[S]peech on 'matters of public concern' ... is "at the heart of the First Amendment's protection".' The First Amendment reflects 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' That is because 'speech concerning public affairs is more than self-expression; it is the essence of self-government'."

Now, one might question whether some ignorant yahoos parading around private property down the block from Snyder's funeral represented speech of public or private concern, so Roberts quickly delves into the issue, and undertakes some significant verbal gymnastics to avoid legitimizing freedom for sexual speech.

First, he quotes from Connick v. Myers to better define the "not well-defined ... boundaries of the public concern test" by noting, "Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community'," but since this is not an obscenity case, Roberts obviously sees no need to comment on whether sexually explicit material as a category is a "matter of political, social, or other concern to the community," since if it were, it would be "public speech" and protected under the Snyder decision:

"While these messages ["God Hates Fags," etc.] may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import."

A "matter of public import" like, say, the question of whether people carrying incendiary protest signs are more or less likely to cause public unrest (or at least discussion) than images of two people fucking on a public sidewalk? Would it make a difference if the two fucking people were dressed as clergy?

Even more outrageously, Roberts quotes the case of Texas v. Johnson, noting that, "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

"Offensive"? That's porn to a lot of people. So based on that logic, how could a display of people fucking not be protected "simply because society finds the idea itself offensive or disagreeable"—bearing in mind that the plain language of the First Amendment permits no such discretion?

And to add insult to injury, when Roberts states that, "In most circumstances, 'the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, ... the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes'," he's actually quoting from the seminal sexual speech decision Erznoznik v. City of Jacksonville, a mid-'70s case where the Supremes struck down a Jacksonville, Florida ordinance that made it a "public nuisance" to show a film containing nudity at a drive-in theater where the screen is visible from a public street or other public place. That era's Supreme Court majority viewed the ordinance as a content-based restriction, and found that that outweighed the various justifications put forth by the city: Protection of children and prevention of distraction to passing motorists.

And the Roberts court's conclusion?

"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," Roberts tellingly admits. "But," he continues, "Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials ... Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."

Yeah; speech by picketers whose "contribution to public discourse may be negligible" has to be protected even if it adds to a father's pain on the death of his son, but busting the producers or sellers of sexual material because the stuff may "arouse[] contempt" of or is "upsetting" to some number of sexually-repressed churchgoers is just business as usual!

Case Study #3—Brown v. Entertainment Merchants Association:  Sexual assault in a video game is not obscene. Consensual sexual activity is.

Finally, there's the June 2011 decision in Brown v. Entertainment Merchants Association, which struck down a California law prohibiting the sale of violent video games to minors, even with a parent's permission—but this time, it's Justice Antonin "We are fools for Christ's sake" Scalia who gets to parse whose (violent) speech gets constitutional protection and whose (sexual) speech doesn't.

At issue in the case is California Assembly Bill 1179, whose authors clearly tried to make its language sound as much like an anti-obscenity bill as they could: Describing games that include, in the "range of options available to the player... killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in a manner that '[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,' that is 'patently offensive to prevailing standards in the community as to what is suitable for minors,' and that 'causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors'," is basically the Miller test rewritten for kids and games.

Indeed, Scalia realizes that:

"As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct'."

Why? Tradition! (Cue Topol from Fiddler on the Roof ...)

But when Scalia, one of the Court's strongest opponents of sexual speech rights, writes, "The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try," it's as if he lives in a universe where sexual content doesn't exist, since in every case involving sex that's come before him, Scalia has gone out of his way to make exactly those distinctions, and has never given the slightest hint that he considers the distinction process "dangerous." Compare this statement with his dissent in Lawrence v. Texas, where he hyperbolically claimed that allowing consensual sodomy would doom (or at least "call into question") all "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." OK, Nino; we get it: All sex bad; all other "entertainment," including violent video games, good—even for kids.

Scalia writes:

"Because speech about violence is not obscene, it is of no consequence that California's statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child. We held that the legislature could 'adjus[t] the definition of obscenity "to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests..." of ... minors'."

But, of course, not to include violent speech.

Indeed; Scalia's all in favor of watching violence. Attendant to the Stevens decision, it was reported that Scalia loves bullfight videos, so his authorship of Brown is hardly a surprise—nor is his dissection of Justice Samuel Alito's lukewarm concurrence:

"JUSTICE ALITO has done considerable independent research to identify video games in which 'the violence is astounding'. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. ... Blood gushes, splatters, and pools.' JUSTICE ALITO recounts [in his concurrence] all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression."

Hmm ... That's certainly not the message anyone would get from, for instance, Scalia's Lawrence dissent! He continues:

"And the same is true of JUSTICE ALITO's description of those video games he has discovered that have a racial or ethnic motive for their violence—'"ethnic cleansing" [of] ... African Americans, Latinos, or Jews'. To what end does he relate this?  Does it somehow increase the 'aggressiveness' that California wishes to suppress? Who knows?  But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription."

Talk about "irony": How fascinating is it that Scalia castigates Alito for the exact reasoning that Scalia himself applies to sexual speech!

But wait, there's more!

"The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, '[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.' They show at best some correlation between exposure to violent entertainment and miniscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."

Of course, Scalia refuses to give the same benefit to sexual speech, even though the only "research" that's found a connection between exposure to porn and harmful effects on anyone is anecdotal, and in most cases from thoroughly biased "researchers."

Of course, there's plenty more to show the congruence between the alleged but bogus effects of exposure to violent video games and exposure to sexually explicit material, but considering that the focus of the Brown decision is children, it will come in handier after the high court has solved its problems with alleged "obscenity."

Case Study #4—Free Speech Coalition et al v. Holder, A.G.: Adult videos don't use children, so it's important to know how old every adult is.

The final topic that's worth covering briefly is the adult entertainment industry's ongoing battle against the federal record-keeping and labeling laws, 18 U.S.C. §§2257 and 2257A, which require all adult content that features real or simulated sexually explicit conduct between consenting adults be labeled as compliant with the law, and that records attesting to the ages of the participants be kept in a certain form in a specified location by the producers and some re-packagers of such material.

Free Speech Coalition (FSC), the industry's trade organization, along with more than a dozen other plaintiffs, sued the government over these requirements in September of 2009, but Third Circuit District Court Judge Michael Baylson, a Bush appointee, dismissed the suit in mid-2010. After Baylson refused to reconsider his decision, the FSC plaintiffs appealed the dismissal to the Third Circuit U.S. Court of Appeals, restating in plainer language several of the inarguable points against the onerous law:

1) The 2257 law and regulations fail the mid-level speech-regulation test of intermediate scrutiny, in that the statutes "do not directly and materially advance the government's interest in combating child pornography," the brief states. The statute is not narrowly tailored to achieve the government's stated purpose in enacting the law, but rather is:

"narrowly tailored to achieve an illegitimate governmental interest in requiring all producers of expression to establish that their expression is not child pornography, thus reversing the constitutional presumption conferred on all expression required by the First Amendment. Moreover, the statutes are overinclusive and burden substantially more speech than is necessary to advance its avowed interest in battling child pornography."

2) The statute also doesn't survive the strict scrutiny test, in that it is clearly content-based. The law affects only actual sexually explicit speech while specifically exempting simulated sexual speech from the same regulations if the creator of such simulated speech merely files a letter with the Attorney General of the United States stating that the producer keeps certain identity and tax records as a regular course of doing business—something which producers of actual sexually explicit speech also do, but cannot avail themselves of the same exemption.

3) The statute violates producers' Fourth Amendment rights against unreasonable searches and seizures, since it gives government agents free rein to enter producers' premises without a warrant and to search through the producer's records, as well as giving them the power to seize any "evidence" of what the agents may perceive as felonies being committed by the producer, again without a warrant. Worse, refusal to admit the "inspectors" to a producer's premises in itself constitutes a felony under the challenged law.

4) The statute is overbroad, in that it applies to "a vast quantity of private, non-commercial expression between adults," as well as to an even wider array of commercial speech—i.e., the vast majority of commercially-released adult DVDs—which unquestionably contains no minors or even performers who look like minors; yet all must keep 2257 records and label their products as if it were possible that some minor therein gave a sexually explicit performance.

The 2257 battle has been ongoing for more than 20 years, since the first version of the law was enacted shortly after the Meese Commission report was released, but until actual regulations regarding the 2257 requirements were first published in mid-2005 by then-Attorney General Alberto Gonzales, there had been zero enforcement of the law. In fact, to date, although the FBI "inspectors" have examined the records of more than 25 adult companies, the Justice Department has yet to bring charges against any adult company solely for its alleged lack of compliance with the 2257 requirements.

But once the regulations were published, FSC quickly sued to have the law overturned and its regulations stricken, filing a lawsuit in district court in Colorado that, after much briefing and several hearings, was largely dismissed by agreement of the parties—even though, in the interim, the 2257 law and regulations were again revised, this time adding 2257A to cover simulated sexual depictions.

Perhaps the single fact that best exemplifies the uselessness of the regulations is that while producers of sexually explicit material are required to examine and retain a copy of a performer's government-issued photo identification document, there is no requirement that the producer authenticate that document! In other words, if a performer presents an authentic-looking forged ID, the producer will not have violated the 2257 law if he maintains a copy of the document in his/her records. However, in such a case, the producer would be guilty of violating the existing child pornography laws—the very laws that make 2257 unnecessary.

Moving Forward

As noted above, in order for there to be good rulings on sexual speech and conduct from the U.S. Supreme Court, it will take the election of liberal/progressive (or at least putatively liberal/progressive) presidents and senators, since those are the ones who will, in the first instance, nominate, and in the second instance, approve sexually rational Supreme Court justices. It's a process that Woodhull Sexual Freedom Alliance members can assist by working to get such candidates elected, and supporting sexually sane nominees for the high court.

Sadly, that doesn't help the near-term situation, but that could easily change. As the Supreme Court now stands, there are four dedicated conservatives—Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas—and four nearly dedicated liberals—Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, though it's unclear just where Justice Stephen Breyer stands on some issues—and one justice who's considered a "swing vote," Anthony Kennedy.

However, information has recently surfaced that casts great doubt on Scalia's and Thomas' ethics. For one thing, both justices have been guests at, and participated in political strategy sessions at, retreats for conservative corporate owners sponsored by Koch Industries, whose owners are multi-million-dollar contributors to a variety of conservative causes. Yet neither justice has recused himself from several Supreme Court decisions that would affect the Koch brothers, their companies and companies and issues the Kochs support.

Thomas in particular has come under fire for failing to report, on his financial disclosure forms, five years' worth of his wife's income from the conservative Heritage Foundation, from whom she received $686,589 between 2003 and 2007. Until recently, Virginia Thomas was also head of the Liberty Central, a PAC which, like Heritage Foundation, has supported a variety of conservative causes with interests in cases (like Citizens United) in which Thomas has been called upon to rule from the bench, and she now heads a lobbying firm, Liberty Consulting—yet another good reason for recusal. The group Citizens for Responsibility and Ethics in Washington has called for a congressional investigation into Thomas' ties to, and receipt of gifts and money from, conservative individuals and political groups, and the group Common Cause has petitioned the Justice Department to investigate whether the Citizens United decision should be set aside because Scalia and Thomas took active roles in the Koch retreats.

Scalia too has ethical problems, stemming at least from his concurrence in the ruling that then-Vice President Dick Cheney did not have to reveal the attendees at his energy summit in early 2001, after Scalia spent several days duck hunting with the VP. Scalia also, at the invitation of Rep. Michele Bachmann (R-Minn.), spoke to a closed-door session of the House Tea Party Caucus in January—a partisan act that calls into question Scalia's impartiality in deciding cases in which Tea Partiers have an interest.

As part of its stance, then, in support of recognition of humans' fundamental right to sexual freedom, Woodhull Sexual Freedom Alliance members might be well-served to support, and urge others to support, the enactment of a "code of ethics" for Supreme Court justices—something they don't currently have and which, at least from the evidence noted above, they sorely need .

What's undeniable is that, sexually speaking, the modern world is changing rapidly, and for every adult bookstore some uptight city council zones out of existence, ten more adult "e-tailers" open up on the internet—but no matter where citizens buy their porn, the official Morality Police, crosses in hand, are waiting to intercept DVDs in the commerce stream and attempt to prosecute the vendors, and occasionally even the customers. Moreover, some venues like strip clubs and swingers' clubs have no online equivalents, just "brick and mortar" addresses, and while First Amendment protections are supposed to exist for all of this sexual speech, it will take a modern, sexually-sane Supreme Court to uphold those rights, and precedent-setting decisions like those discussed above to pave the way out of this country's anti-sex-law morass. If only future Justices can be made to see the hypocritical undercurrent of their predecessors' speech analyses.






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Mark Kernes

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