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 ith
even George Will and the Family Research Council predicting the
child pornographer in Ohio will prevail on appeal, I am now officially
The Only Person in America who says Ohio wins. (Other than, one
hopes, the prosecutor.)
Convicted child pornographer Brian Dalton was charged with pandering
child pornography on the basis of his private writings in a personal
journal in his home. He pled guilty, which normally precludes appeal
and may prevent me from collecting on my bets.
Point one: The states can do anything that isn't prohibited by the
Constitution. (This elusive concept is admittedly difficult to grasp,
especially if you are a Supreme Court justice and prefer to think
of yourself as "Czar of the Universe.") If a state wants to outlaw
artichokes, it can, unless the artichoke is actually, say, a gun,
in which case it is constitutionally protected.
Thus, the only question is whether Dalton's private journal is protected
by the First Amendment.
Dalton insists he had no intention of sharing his journal with his
pederast friends. It was for his eyes only. This point has great
emotional appeal, but throws into doubt whether Dalton's journal
qualifies as "speech." To whom was he speaking? The reason burning
an American flag is protected "speech" is that the First Amendment
protects communication, not mere words.
If Dalton's journal was intended solely for his own individual pleasure,
it's not apparent why it should have any greater constitutional
significance than a blow-up doll. The whole point of the First Amendment
is communication — expressive content, the marketplace of ideas,
the government cannot distinguish truth from falsity, blah, blah,
blah.
It may seem intuitively correct that you have a right to talk to
yourself, but it also seems intuitively correct that you have a
right to artichokes. Unless the Constitution protects it, states
can ban it. Dalton was either pandering child pornography or he
was talking to himself — which isn't obviously protected by
the Constitution.
But let's say talking to oneself does constitute "speech." Not all
speech is protected by the First Amendment. Obscenity, for example,
is not protected.
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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