Venn Diagrams and Free Speech

Fred Kaplan has written an interesting history of the legal case that struck down many of America’s obscenity laws, particularly the ability of the US Postal Service to confiscate items from the mail it deemed obscene. The case revolved around a publisher, Grove Press, that sued the Postal Service for confiscating copies of the D. H. Lawrence novel Lady Chatterley’s Lover under the law that prevented the shipment of materials the Post Office deemed to be obscene, lewd, lustful, lascivious, or prurient. Previously, the Supreme Court had ruled that free speech, protected by the First Amendment, did not cover obscenity.

The interesting part of the case, for this website, was that the lawyer for Grove Press, Charles Rembar, used a Venn Diagram to point out the logical flaw in the current interpretation of the law. In the case Roth v. United States, 354 U.S. 476 (1957), Justice William Brennan wrote,

All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

What Rembar realized was that some materials could have “redeeming social importance” and, at the same time, could also meet the standards for obscenity, and, because of this, the law was logically impossible and should be struck down. According to Kaplan, Rembar drew a Venn diagram to present to the US District Court that showed a circle for “Material appealing to prurient interests” and a circle for “Material utterly without social importance.” Rembar argued, successfully, that only the intersection of the two sets should be denied free speech protection.

The District Judge agreed as did the Appellate Court. The Post Office chose not to take the case to the Supreme Court, and the result is that fifty years ago today, materials that some consider obscene became protected speech. It seems somewhat ridiculous today that the US government, let alone the Post Office, would be deciding what we can, and cannot, read. We very much have the attitude that, except in certain cases, one can simply not read the book (I have not) if we find it obscene (I don’t) or, even, boring (I do, plus I saw the Skinemax version when I was in middle school).

Fifty years ago, however, many people in society considered morality a more important public good that free speech. I, for one, am glad that the Courts realize that public preferences can change and that the law can reflect the changes in that sentiment.