Although many people have mistakenly been led to believe otherwise during the last decade, the rights guaranteed in the Bill of Rights are not and were never intended to be absolute. They all have limits defined by the U.S. Supreme Court. The only right that is absolute is the right to believe.
The First Amendment right to freedom of speech and press, for example, is not, was never intended to be, and should not be an absolute right to say or print anything you want. Your right to free speech and press ends where the rights of others begin. You have no right to utter obscenities, blasphemies, profanities, libels, or slanders because those acts interfere with the rights of others. You have no right to commit a public nuisance, a public indecency, or a public disturbing of the peace. In Oliver Wendell Holmes’ famous phrase, you have no right to cry “fire” in a crowded theater.
One of the unfortunate legacies of the Earl Warren Court was the overturning of the law on obscenity that Americans had respected for 178 years. By ruling FOR obscenity dealers in 36 out of 38 cases in 1967, 1968, and 1969, the Warren Court enshrined the pornographer’s right to commit his public nuisance above the right of all the rest of the people to live in an orderly and decent community.
In many of these cases, the Supreme Court did not issue any opinion supporting its decision or even reveal which of the Justices approved the decision. The Court just handed down anonymous per curiam decisions that reversed the convictions of smut peddlers found guilty by local juries, and thereby stripped the commnunities of all legal power to defend themselves against obscenity. The result of permitting the smut peddlers to clothe themselves in radical new interpretations of the First Amendment has been the pornography explosion of the 1970s.
One of the major changes that Chief Justice Burger made was to reaffirm the law on obscenity that had existed prior to the Warren Court. In 1973 Burger wrote the opinion specifically holding that “obscene material is not protected by the First Amendment,” that it can be regulated by the states, and that the courts will honor community standards rather than enforce a national standard.
The latest decision on pornography shows that the Supreme Court realizes that civilized cities must have additional means of protecting their citizens against the public display of moral garbage. The Supreme Court now recognizes that pornography is an “admittedly serious problem,” that cities must be permitted to try “to preserve the quality of urban life,” and therefore must be allowed “a reasonable opportunity
to experiment with solutions.”
We can thank the Court’s newest Justice, John Paul Stevens of Chicago, for recognizing the problem in the big cities and permitting them to deal with it by zoning laws which either disperse X-rated movie theaters and so-called “adult”‘ bookstores, as Detroit does, or concentrate such objectionable businesses in one area, as Boston does in what is called its “combat zone.” At any rate, it is for the city to decide, not the Federal courts.
The new Supreme Court decision won’t eliminate the porno plague, but it is a big step in the right direction. It should encourage city councils and local law enforcement officials to go into action
against public nuisances such as porno shops and movies and massage parlors.
