Essay by Dane Mohler
Originally published in Tangents 1.10
July 1966, pp. 4–6.
Dane Mohler is a former clerical employee of the Federal Bureau of Investigation. He has also served a period of time in Germany as a Special Agent with the United States Counter Intelligence. After two years of law school, Mr. Mohler dropped out to specialize in legal research in the field of Constitutional law. He is presently associated with the law firm of Frank C. Wood, Jr. in Los Angeles, California. At Mr. Mohler’s request, we point out that he is not an attorney, licensed to practice, but we believe that because of his experience in this field, his comments are of special importance.
A great many words have been spoken and written about the Ginzburg-Mishkin cases which were recently decided by the United States Supreme Court.
Most of these words have been concerned with the addition by the Court of new criteria for determining obscenity—namely, a consideration of how the material is advertised. While this new aspect has been widely discussed there still remain, it seems to me, certain implications—aside from the advertising aspect—which should be brought to light and considered. At the very least these implications pose interesting questions that remain to be answered. I do not propose to answer these questions, only to ask them; for the answers lie only in the future. When the answers are given the course of a nation will be changed— not only in the whole area of communication but in all areas of our lives; for the questions posed relate only incidentally to the matter of obscenity and very directly to the foundation of our system of justice.
In delivering their opinion in these cases, the Supreme Court Justices refer—in both the majority opinion and in one of the dissenting opinions —to the vast amount of mail received by them prior to their decisions. They further state that most of this mail was against the defendants. Now I was taught a long time ago that one of the guarantees of freedom in this country is that there are three distinct and separate departments of our government: legislative, executive and judicial. These three divisions were specifically created in order to provide a system of checks and balances. It is also stated very clearly that the voice of the people is to be expressed primarily through the legislative branch which is composed of the direct representatives of the people and, secondarily, through the executive branch. To insure that these two branches do constitute the voice of the people their members are directly elected by the people. However, the third branch is to be impartial and removed from pressure of any type. To obtain this impartiality federal judges are appointed for life. Theoretically, at least, judges are to remain free of outside influence.
Now we find in the Ginzburg case, as stated very clearly in the opinions, that the Justices have taken into consideration and have in fact yielded to an expression of public opinion which may or may not represent the majority. Under this theory of justice the old-time judge might have said, upon handing down his verdict on an accused horse thief, “Since most of this town wants ta lynch ya, I finja guilty an’ sentence ya ta hang.” Thus, my first question—has the highest court in the land succumbed to partisan pressure that has been put upon it? (I say partisan because it is obvious that not all opinion in the United States agrees with either that of the letter-writers or the judges.) Is public opinion now henceforth to be a factor in determining guilt or innocence? So far, in no other area of law has the court encouraged outside pressure or the expression of opinion. Yet now, in the matter of obscenity, the court has invited outside opinion to be brought to bear on every judge in the land.
Another point in question is one that the framers of our Constitution were very concerned about. They were very much aware of the fact that in the past it had been an easy matter for heads of state to dispose of adversaries or dissenters who could not be disposed of in any other way by suddenly making criminal an act which was perfectly legal at the time it was committed. The founders of our government specifically prohibited this practice when they forbade ex post facto legislation in the Constitution. Justice Black takes cognizance of this matter when he states that the majority opinion in the Ginzburg case adds a new element to the test of obscenity—an element not present in the law when Ginzburg published his material. And it is true that the majority opinion makes very clear that Ginzburg’s guilt was upheld primarily as the result of taking into consideration an element not present in the law at the time of the alleged criminal act.
It is unfortunate but no less true that in the trial of morals cases (and what is obscenity if not a matter of morals?) the influence of; new attitudes, if not legislation, is permitted consideration. The matter of morals, by its very nature, lends itself to ex post facto legislation. Perhaps the best example in this is evidenced by the Arkansas Supreme Court many years ago in the case of “Ex parte Andrew Jackson.” In that case the Court was dealing with the words against public morals, and! it stated:
criminality depends, under it, upon the moral idiosyncrasies of the individuals who compose the Court and jury…. It is ex post facto because juries’ sentiments might change after the act has been committed.
Justice Clark of the present United States Supreme Court, in his opinion concurring with the majority, seems to make the reasoning of the Arkansas Court a propos for he states in essence that his feelings have changed with regard to obscenity matters since the previous decisions he had made in this field. Thus, my second question—has the Court opened its doors to ex post facto law? May it condemn legislation of this type yet practice it itself?
Obscenity legislation is clouded with uncertainty. Let us examine the word lewd, which is contained in Title 18, Section 1462 of the United States Code, under which most postal censorship cases are tried and under which Ginzburg was convicted. Webster’s New International Dictionary, 2nd Edition, defines lewd as “wicked, lawless, bad, vicious, worthless, base, wretched, and ignorant.” Do these words, or does any one of these words, define in clear, simple language the type of material the legislature intended to prohibit from the mails? I have no idea from these words whether this article or the publication it appears in is bad or ignorant; and yet it is a serious matter, for the penalty for breaking the law is a $5,000 fine and up to five years in a federal penitentiary.
The meaning of obscenity changes from day to day as well as from community to community. That there has been a realization that this standard changes from community to community has been recognized in the past by the various decisions which have indicated that there must be a national average-man standard for determining what is obscene. But now, in these new cases, the judges seem to have discarded this standard and adopted a new one which, in effect, says that anything which may appeal to the prurient interests of any one small group within our society may be called obscene.
Justice Frankfurter once said that the men of the Supreme Court were not to overlook anything as justices that they knew to be true as men. Can they now overlook the fact that almost every legal scholar and attorney in the land today differs on the meaning of the obscenity statutes? The courts and the Supreme Court differ on the meaning of these statutes despite the fact that the Constitution prohibits ambiguous legislation. My third question is, consequently, whether the Supreme Court is now encouraging this kind of legislation?
I think the statement on the matter by Mr. Justice Traynor of the Supreme Court of California is very applicable here. He said:
A penal statute that does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press lends itself to harsh and discriminatory enforcement by local prosecuting officials against particular groups which deem to merit their displeasure. Language prohibiting conduct that may be prohibited and conduct that may not affords no reasonably ascertainable standard of guilt and therefore is too uncertain and vague to be enforced.
This brings up a question which, if irrelevant to this discussion is, nonetheless, interesting. Another paragraph of the so-called “obscenity” statute provides that “Any drug, medicine, article or thing designed, adapted or intended for preventing conception…or any written or printed card, letter, circular, book, pamphlet, advertising or notice of any kind giving information directly or indirectly where, how, or whom or by what means any such mentioned articles, matters or things may be obtained or made…” is contrary to law. Would it not seem, then, that the present United States Governments program on birth control is as illegal as Mr. Ginzburg’s Eros?
All of my questions seem to re- solve themselves into one single question—do we still have a check and balance system of government?
I doubt very much that we have heard the last of the Ginzburg Case.
©1966, 2018 by The Tangent Group. All rights reserved.