Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 11

1990—More from Florida justices Rosemary Barkett and Gerald Kogan.  In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional.  In a brief dissent, Barkett, joined by Kogan, asserts:  “A basic legal problem with the criminalization of obscenity is that it cannot be defined.…  Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.”  Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”  But Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections.  Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity. 

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Most Popular

World

Trump and the North Korean Tipping Point

The world has been stunned by North Korean dictator Kim Jong Un’s announcement last week that he was suspending his country’s nuclear tests in preparation for the impending meeting with President Trump. Even critics have had to concede that Trump’s bellicose rhetoric since last summer regarding the North ... Read More
Sports

Hurray for the NBA

Last month, just before the Final Four, I did a Q&A on college basketball with our Theodore Kupfer. Teddy K. is back, by popular demand, joined by two other experts: Vivek Dave, an old friend of mine from Michigan, who has long lived in Chicago, and David French, National Review’s Kentucky Kid, now ... Read More
Economy & Business

Trade Misunderstandings

I was distracted by other policy topics last week but not enough not to notice Peter Navarro’s article in the Wall Street Journal, headlined “China’s Faux Comparative Advantage.” Considering Navarro’s position in the White House, it is unfortunate that it demonstrates some serious misunderstandings ... Read More