Pornography and the Supreme Court

Some years ago, I read the Brethren, by Bob Woodward. It was an inside look at the Supreme Court for a certain number of years between the late 60’s to the early 70’s.  It was published sometime in the 70’s.  At the time it was controversial because the Supreme Court was very secretive.  It was considered quite a journalist coup for Woodward to have gotten such inside access.

One of the fascinating things discussed was pornography.  At the time, the Supremes were grappling with what to do with pornographic movies.  Local communities were trying to outlaw pornography while the pornographers were claiming free speech.  At one point, the judicial standard was that it had to have some positive effect.  Pornographers promptly started doing things like prefacing hard-core sex movies with Shakespearean actors reciting Hamlet’s soliloquy and things like that.

It got to the point where the Supremes became arbiters of what was pornographic and not.  They’d have regular screenings (I believe in the basement of the courthouse) where they’d view movies and decide whether or not they fit the legal definition of pornography.

Some justices, like William Brennan, were free speech advocates, so they wouldn’t bother to attend because they knew that they would uphold the movie as free speech.  Other justices, like Byron ‘Whizzer’ White, had strict criteria for what was pornography or not (for instance, Whizzer considered an erect penis to be pornographic while a limp penis not).  Therefore, such justices had to show up to the viewing with their checklist to determine what was pornographic.

And then there was Thurgood Marshall.  He was a giant of the Civil Rights era.  I believe that he was the first African-American to argue before the Supreme Court.  He was a leader throughout the battle.  He was the first African-American Supreme Court justice.  There are schools named for him throughout the country (there is a Thurgood Marshall elementary school in Seattle).

He was definitely a liberal free speech advocate, so he always was going to uphold the movies to be free speech.  Yet, there he was at every viewing, usually with popcorn and making ribald comments the whole time.  He was basically just there for the porn.

He was a justice for a long time.  In his later years, he declined in health, but still served as a justice.  If I recollect correctly, he was diabetic or something like that and ended up having a leg amputated.  He either died as a justice or retired just prior to his death.  Regardless, when his seat became vacant, the African-American community rose and demanded that another African-American be appointed to replace him.  They called it the ‘Black’ seat.  There was some precedent for this.  For a while there was what was called the ‘Jewish’ seat on the Supreme Court, populated by people like Felix Frankfurter.

The president at the time was George H.W. Bush.  I personally thought that H.W. was a pretty competent president, but no one has ever claimed that he was a friend of the liberal cause.  He said, hey, you want an African-American justice?  Well, here you go, Clarence Thomas….Bam!

Clarence Thomas, even in those days was known to be against affirmative action and other causes that the African-American community at large still passionately believed in.  They were kind of stuck.  What were they going to say?  Thomas was the wrong kind of black?  Perhaps a lesson was learned regarding the importance of belief over skin color.

During Thomas’ confirmation hearings, he was almost derailed by the testimony of Anita Hill, who among other things claimed that Thomas…wait for it…here it comes…spent a highly inappropriate amount of time and in very specific detail discussing…pornography.

And the circle of life continues…

For those fools out there who don’t believe in God, here is proof that there is order in the universe.


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