This Day in Liberal Judicial Activism—April 7

by Ed Whelan

1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material.  Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment.  Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.”  Yep, that carefully captures what viewing obscenity is all about.  (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)