Showing posts with label Internet. Show all posts
Showing posts with label Internet. Show all posts

Monday, July 10, 2023

Lex Anteinternet: The Shoes of the Fishermen, Tax Collectors, Tent M...Twenty-One New Cardinals.

Lex Anteinternet: The Shoes of the Fishermen, Tax Collectors, Tent M...: The Calling of the Apostles Peter and Andrew. In spite of commenting on nearly every social trend imaginable, one thing that I've genera...

Just published on Sunday.

As an example of how hard it is to really get objective news analysis, or at least neutral news analysis, in the Internet Age, just after we put that post up, the news broke that Pope Francis appointed 21 new Cardinals, although only 18 of them are young enough (a relative term) to fall below the voting age in selecting the next Pope.  

Here is the list, with those from outside of Europe and the America's in red, and those from outside of Europe otherwise in blue..

  • Arthur Roche, Prefect of the Congregation for Divine Worship and the Discipline of the Sacraments (United Kingdom)
  • Lazzaro You Heung-sik, Prefect for the Congregation for Clergy (South Korea)
  • Fernando Vergez Alzaga, President of the Pontifical Commission for Vatican City State (Spain)
  • Archbishop Jean-Marc Aveline of Marseille (France)
  • Archbishop Peter Okpaleke of Ekwulobia (Nigeria)
  • Archbishop Leonardo Ulrich Steiner of Manaus (Brazil)
  • Archbishop Filipe Neri António Sebastião of Rosário Ferrão, of Goa e Damão (India)
  • Bishop Robert Walter McElroy of San Diego (United States)
  • Archbishop Virgilio Do Carmo Da Silva of Dili (East Timor)
  • Bishop Oscar Cantoni of Como (Italy)
  • Archbishop Anthony Poola of Hyderabad (India)
  • Archbishop Paulo Cezar Costa of Brasília (Brazil)
  • Bishop Richard Kuuia Baawobr M. Afr, of Wa (Ghana)
  • Archbishop William Goh Seng Chye of Singapore (Singapore)
  • Archbishop Adalberto Martínez Flores of Asunción (Paraguay)
  • Archbishop Giorgio Marengo Prefect of Ulaanbaatar (Mongolia, but born and raised in Italy)
Plus, the following five who are over 80, therefore ineligible to vote in a conclave:
  • Archbishop Jorge Enrique Jiménez Carvajal, Archbishop Emeritus of Cartagena (Colombia)
  • Archbishop Lucas Van Looy SDB, Archbishop Emeritus of Ghent (Belgium)
  • Archbishop Arrigo Miglio Archbishop Emeritus of Cagliari (Italy)
  • Father Gianfranco Ghirlanda, SJ (Italy)
  • Monsignor Fortunato Frezza (Italy)

The big news is that they're from all over the globe, which is one of the things I urged in the post above.  Lots of them are from outside the traditionally Catholic regions of the globe.  

Nonetheless, at least on Twitter, there were instant condemnations from people claiming that all of them are in dangerous left wing clerics, or worse.

Well, baloney.  Most of us know nothing about these individuals whatsoever.  Looking up their biographies would give almost no Catholic a reason to be in distress.  Giorgio Marengo is 48 years of age, thereby meeting another one of my criteria, and has worked during his entire Priesthood in Mongolia, which can't be easy but exactly fits my Apostolic analogy.  Anthony Poola of India was born into the Untouchables class.  Lazzaro You Heung-sik of South Korea is a Catholic convert.  Looking at their bios, there's probably only two that may cause conservative Catholic concern, and they're not from the regions noted.

But I'm sure people are going to freak out anyway.

Wednesday, July 5, 2023

Blog Mirror: NPR Politics, Mitch Landrieu, The Man Biden Hopes Can Rebuild America, Bring Broadband To Millions

 Interesting episode of NPR's politics which actually has a somewhat deceptive caption:

Mitch Landrieu, The Man Biden Hopes Can Rebuild America, Bring Broadband To Millions

This discussion on the Internet having become a necessity is probably correct.  It's also, frankly, at least to me personally, depressing.

The comparisons to the Eisenhower Defense Highway funding or the New Deal programs is interesting.  The comparison that came to my mind was with the cooperation with the railroads to build the Transcontinental Railway, which I guess is something we've just forgotten about. An interesting example, I suppose, of the American System.

Wednesday, June 21, 2023

Thursday, June 21, 1973. Lacking in serious literary, artisitic, political or scientific value.

The United States Supreme Court set the standard, sort of, for obscenity with the  "utterly without socially redeeming value" which lacks "serious literary, artistic, political, or scientific value" standard in Miller v. California.  This created the "Miller Test".

The case holds:

Miller v. California, 413 U.S. 15 (1973)

Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT

OF CALIFORNIA, COUNTY OF ORANGE

Syllabus

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 413 U. S. 30-34.

Vacated and remanded.

Page 413 U. S. 16

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704 (1968) (concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1]

Page 413 U. S. 17

and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically

Page 413 U. S. 18

based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

I

This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [Footnote 2]

Page 413 U. S. 19

when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U. S. 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 464-465 (1952) It is in this context that we are called

Page 413 U. S. 20

on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:

"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 [First Amendment] 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. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "

". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social

Page 413 U. S. 21

value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."

[Emphasis by Court in Roth opinion.]

"We hold that obscenity is not within the area of constitutionally protected speech or press."

354 U.S. at 354 U. S. 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition,

"as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality went on to state:

"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value."

Id. at 383 U. S. 419 (emphasis in original).

While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required

Page 413 U. S. 22

that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in the area

Page 413 U. S. 23

of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no Member of the Court today supports the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5] "The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be

Page 413 U. S. 24

carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [Footnote 6] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S. 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts,

Page 413 U. S. 25

383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can

Page 413 U. S. 26

be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. [Footnote 9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United

Page 413 U. S. 27

States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 354 U. S. 491-492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If

Page 413 U. S. 28

the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult

Page 413 U. S. 29

Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts. . . ."

"The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so."

Id. at 413 U. S. 93, 413 U. S. 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment -- because it will lighten our burdens. [Footnote 11] "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482-485.

"Our duty admits of no 'substitute for facing up

Page 413 U. S. 30

to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v. United States, supra, at 354 U. S. 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]."

Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case

Page 413 U. S. 31

law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest," and, in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards [Footnote 12] or to the instructions of the trial judge on "state-wide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter

Page 413 U. S. 32

of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200:

"It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards -- not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one."

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [Footnote 13]

Page 413 U. S. 33

See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v. United States, supra, at 354 U. S. 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary

Page 413 U. S. 34

standards of the State of California" serves this protective purpose and is constitutionally adequate. [Footnote 14]

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.

"The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of

Page 413 U. S. 35

political and social changes desired by the people,"

Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. [Footnote 15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We do not see the harsh hand

Page 413 U. S. 36

of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated

Page 413 U. S. 37

above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United States, supra, at 354 U. S. 489, not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.

Vacated and remanded.

[Footnote 1]

At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part:

"§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state"

"(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . ."

"§ 311. Definitions"

"As used in this chapter: "

"(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."

"(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials."

"(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity."

"(d) 'Distribute' means to transfer possession of, whether with or without consideration."

"(e) 'Knowingly' means having knowledge that the matter is obscene."

Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows:

"(e) 'Knowingly' means being aware of the character of the matter."

Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal. App. 2d 941, 948-950, 63 Cal. Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal. App. 2d 905, 914, 51 Cal. Rptr. 815, 821 (App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any "direct, immediate burden on the performance of the postal functions," or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U. S. 476, 354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96 (1945). See also Mishkin v. New York, 383 U. S. 502, 383 U. S. 506 (1966); Smith v. California, 361 U. S. 147, 361 U. S. 150-152 (1959).

[Footnote 2]

This Court has defined "obscene material" as "material which deals with sex in a manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487, but the Roth definition does not reflect the precise meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary (Unabridged 1969) as

"1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle."

The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."

The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now means

"1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth, supra, at 354 U. S. 487. See also ALI Model Penal Code § 251.4(1) "Obscene Defined." (Official Draft 1962.)

[Footnote 3]

In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. at 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.

[Footnote 4]

See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73.

[Footnote 5]

As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 200 (1964):

"For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No government -- be it federal, state, or local -- should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule."

[Footnote 6]

See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power.

We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 413 U. S. 130 n. 7.

[Footnote 7]

"A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229, 408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of "social importance." See id. at 383 U. S. 462 (WHITE, J., dissenting).

[Footnote 8]

Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be

"sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

See California v. LaRue, 409 U. S. 109, 409 U. S. 117-118 (1972).

[Footnote 9]

The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30,

"it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 165 U. S. 499-500."

[Footnote 10]

As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 354 U. S. 491-492:

"Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . [T]he Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .' United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark"

". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ."

"Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 U. S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373."

[Footnote 11]

We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation.

[Footnote 12]

The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California "community standards." The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348, 393 U. S. 356 (1969).

[Footnote 13]

In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of "local" community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id. at 378 U. S. 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S. at 354 U. S. 506.

Appellant also argues that adherence to a "national standard" is necessary "in order to avoid unconscionable burdens on the free flow of interstate commerce." As noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915).

[Footnote 14]

Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that, once material has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502, 383 U. S. 512-514 (1966).

[Footnote 15]

In the apt words of Mr. Chief Justice Warren, appellant in this case was

"plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide."

Roth v. United States, supra, at 354 U. S. 496 (concurring opinion).

[Footnote 16]

See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed

"A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War."

Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952).

[Footnote 17]

"[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)]."

Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 690 (1968) (footnote omitted).

MR. JUSTICE DOUGLAS, dissenting.

I

Today we leave open the way for California [Footnote 2/1] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law.

The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U. S. 476, it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487. Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming

Page 413 U. S. 38

social importance." Id. at 354 U. S. 484. The presence of a "prurient interest" was to be determined by "contemporary community standards." Id. at 354 U. S. 489. That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 194, but "on the basis of a national standard." Id. at 378 U. S. 195. My Brother STEWART, in Jacobellis, commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable." Id. at 378 U. S. 197.

In Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418, the Roth test was elaborated to read as follows:

"[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

In Ginzburg v. United States, 383 U. S. 463, a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was said to permeate the advertisements. Id. at 383 U. S. 468. The Court said,

"Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity."

Id. at 383 U. S. 470. As Mr. Justice Black said in dissent,

". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal."

Id. at 383 U. S. 476. That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four.

Page 413 U. S. 39

A further refinement was added by Ginsberg v. New York, 390 U. S. 629, 390 U. S. 641, where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors."

But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its "dominant tendency might be to deprave or corrupt' a reader." [Footnote 2/2] Others look not to the content of the book, but to whether it is advertised "`to appeal to the erotic interests of customers.'" [Footnote 2/3] Some condemn only "hard-core pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it." [Footnote 2/4]

Today we would add a new three-pronged test:

"(a) whether 'the average person, applying contemporary community standards,' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Those are the standards we ourselves have written into the Constitution. [Footnote 2/5] Yet how under these vague tests can

Page 413 U. S. 40

we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may

Page 413 U. S. 41

be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime, a publisher would know when he was on dangerous ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg, and has all the evils of an ex post facto law.

My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:

"The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment."

Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 707.

In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their conduct"

Page 413 U. S. 42

while on the property "that the act for which they now stand convicted was rendered criminal" by the state statute. Id. at 378 U. S. 355. The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case -- certainly when constitutional rights are concerned -- we should not allow men to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct.

II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, [Footnote 2/6] and my views

Page 413 U. S. 43

on the issue have been stated over and over again. [Footnote 2/7] But at least a criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test. [Footnote 2/8]

No such protective procedure has been designed by California in this case. Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send

Page 413 U. S. 44

men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

III

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 467, where I protested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for

Page 413 U. S. 45

dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. [Footnote 2/9] As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.

The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons

Page 413 U. S. 46

passing by." We struck it down, saying:

"If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion, this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct."

"Conduct that annoys some people does not annoy others. Thus, the ordinance is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all."

Id. at 402 U. S. 614.

How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires

Page 413 U. S. 47

that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

[Footnote 2/1]

California defines "obscene matter" as

"matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance."

Calif. Penal Code § 311(a).

[Footnote 2/2]

Roth v. United States, 354 U. S. 476, 354 U. S. 502 (opinion of Harlan, J.).

[Footnote 2/3]

Ginzburg v. United States, 383 U. S. 463, 383 U. S. 467.

[Footnote 2/4]

Jacobellis v. Ohio, 378 U. S. 184, 378 U. S. 197 (STEWART, J., concurring).

[Footnote 2/5]

At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials:

"Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied, and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials."

Report of the Commission on Obscenity and Pornography 53 (1970).

[Footnote 2/6]

It is said that "obscene" publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553, 297 U. S. 597, or communications respecting the sale of spurious or fraudulent securities. Hall v. Geier-Jones Co., 242 U. S. 539, 242 U. S. 549; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559, 242 U. S. 567; Merrick v. Halsey & Co., 242 U. S. 568, 242 U. S. 584. The First Amendment answer is that, whenever speech and conduct are brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490, stated that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said:

"It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now."

Id. at 336 U. S. 498.

[Footnote 2/7]

See United States v. 12 200-ft. Reels of Film, post, p. 413 U. S. 123; United States v. Orito, post, p. 413 U. S. 139; Kois v. Wisconsin, 408 U. S. 229; Byrne v. Karalexis, 396 U. S. 976, 977; Ginsberg v. New York, 390 U. S. 629, 390 U. S. 650; Jacobs v. New York, 388 U. S. 431, 388 U. S. 436; Ginzburg v. United States, 383 U. S. 463, 383 U. S. 482; Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 424; Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 72; Times Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 78; Smith v. California, 361 U. S. 147, 361 U. S. 167; Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 697; Roth v. United States, 354 U. S. 476, 354 U. S. 508; Kingsley Books, Inc. v. Brown, 354 U. S. 436, 354 U. S. 446; Superior Films, Inc. v. Department of Education, 346 U. S. 587, 346 U. S. 588; Gelling v. Texas, 343 U. S. 60.

[Footnote 2/8]

The Commission on Obscenity and Pornography has advocated such a procedure:

"The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions. . . ."

"A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material."

Report of the Commission on Obscenity and Pornography 63 (1970).

[Footnote 2/9]

Obscenity law has had a capricious history:

"The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge, in deciding what is indecent or profane, may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus, musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a round-about modern method to make heterodoxy in sex matters and even in religion a crime."

Z. Chafee, Free Speech in the United States 151 (1942).

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.

In my dissent in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that, under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. *

"[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."

Gooding v. Wilson, 405 U. S. 518, 405 U. S. 521 (1972), quoting

Page 413 U. S. 48

from Dombrowski v. Pfister, 380 U. S. 479, 380 U. S. 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 616 (1971); id. at 402 U. S. 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17, 362 U. S. 21-22 (1960); NAACP v. Button, 371 U. S. 415, 371 U. S. 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a "readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 380 U. S. 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 402 U. S. 616.

* Cal. Penal Code § 311.2(a) provides that

"Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."

Quite obviously the case has failed as a standard to keep filth from the door, and in the age of the Internet, nothing is being done.

Wednesday, May 17, 2023

The death throws of the newspapers.


Back when I was in high school, I briefly toyed with the idea of becoming a journalist.

I was never very serious about it, it was only one of the possibilities I was considering.  In junior high and my first year or so of high school, I was fairly certain that I'd pursue a career as an Army officer, but already by that time that desire was wearing off. I liked writing and still do, so it seemed like a possibility.  I also liked photography, and still do, and it seemed like a career where you could combine both, although in that era press photographers were usually just that, photographers.  

I took my high school's journalism class as a result and was on the school newspaper.  Doing that, I shot hundreds of photographs of our high school athletes, as well as some really interesting events.  I did learn how to write in the journalist's style, which involves summarizing the story in the first paragraph figuring that some people will read no more than that, summarizing it again in the last paragraph, and filling in the story in between.  Good news stories still read that way, although I've noticed in recent years that is observed less and less.

During that year or so I had the occasion to tour the local paper, and the class had a senior, a young woman, who actually already worked there as a reporter.

That paper was no small affair.  The paper was a regional one, as well as the city paper, and it's building just off of downtown, still there was very large.  That large structure, with a massive open news floor and a big printing room, was at least the fourth locality it had occupied, outgrowing the prior three.  It would outgrow that one was well and build an absolutely massive structure just outside of town.

Last year, it sold it.

Now, the paper is headquartered in what was once a bar/restaurant downtown.  Much, much smaller.  It doesn't have presses anymore, it prints the paper in another state.  Far from having a large staff of reporters with dedicated beats, it's down to one or two writers who are always "cubs", just starting out.  It doesn't print newspapers at all on two days a week, right now, but relies on an electronic edition that mimics the appearance of a newspaper on your computer.

You can't pick up and thumb through a pdf.

This past week, it announced that it was going to quit printing a Sunday edition and quit physical home delivery for the three issues per week it will still print. Those will be mailed from the printing location in another state.

It's dying.

It's not surprising really, but it is sad.

At one time, it was a real force to be reckoned with, and people frankly feared it.  Everyone subscribed to it.  I know one family that sued it for liable due to what they regarded as inaccurate reporting on them.

Newspapers reformed themselves after the introduction of radio.  That's something that tends not to be very well known about them.  Before radio, many newspapers tended to be some species of scandal rag and they were usually heavily partisan in their reporting.  You can think of them, basically, the way people think of Fox News today.  As radio cut into their readership, papers consolidated and adopted a new ethic that they reported objectively.

They frankly never really achieved full objectivity, as that may not be possible.  But they did strive for it.  The introduction of television reinforced this.  Newspapers became the place where you could, hopefully, get complete objective news and, hopefully, in depth news on various topics.  Even smaller newspapers had dedicated reporters per topic, larger ones very much so.  The local paper had local reporters that reported per topic assignment.  A big paper, like the Rocky Mountain News, had very specified reporters.  The Rocky Mountain News, for instance, had a religion reporter whose beat was just that topic.  A surprising number of local papers sent reporters to South Vietnam during the Vietnam War just to report on the war.

That's all long past.  For quite some time, reporters have become generalists by default, and as a rule, they can't be expected to have an in-depth understanding of any one topic. For that reason, they are frequently inaccurate, even on a national level.  Just today, for example, I read a national story which repeatedly referred to Communion Hosts as "wafers". That's not the right term.  Reporters on crime blindly accept the "mass shooting" and "high powered rifle" lines without having any idea what they mean.  Print reporters repeat in some instances, depending upon individual reporters, hearsay as fact, in part because they likely don't have the time to really investigate everything personally. 

Because we now get green reporters, the obvious fact that the local paper is dying is all the sadder.  At one time green reporters could at least hope to move up the ranks in their local papers, maybe becoming editors or columnists if they stayed there, or they could move on, as they often did, to larger papers.  They still move on, but papers everywhere are dying.  Ironically, the only papers that still do fairly well are the genuine small town papers in small towns. That's good, but that can't be a career boosting job for those who enter it.  

And with the death of the paper the objectivity that they brought in, back in their golden era, which I'd place from the 1930s through 1990 or so, is dying with them.  People are going to electronic news, which so far hasn't shown that same dedication, although recently some online start-ups actually do.  Television news has become hopelessly shallow, fully dedicated to the "if it bleeds it leads" type of thinking, or fully partisan, telling people what they want to hear.  Really good reporting, and not all of it was really good, was pretty informative, which raised the level of the national intellect.  People might have hated reporters, and they often did, but they read what was being reported about Richard Nixon and Watergate or what was revealed in the Pentagon Papers and had a better understanding of it in spite of themselves.  That helped result in Republicans themselves operating to bring Richard Nixon down and society at large bringing an end to the Vietnam War.

Now, in contrast, we have electronic propaganda organs on the net that feed people exactly what they want to hear, and that often is the same thing that comes out of the back end of a cow.

Not overnight, of course. This has been going on for decades, and indeed in some ways it started with the first radio broadcasts.  But radio was easier to adjust to.  The internet, not so much.

The death of a career, an institution, and unfortunately, also our wider understanding.

Sic transit.

Friday, April 14, 2023

The Air National Guard and other comments in the context of the classified leak

As the fairly rapid investigation has revealed that the disgrace brought upon the United States by the leak of confidential information regarding the Russo Ukrainian War was committed by one Airman 1st Class Jack Douglas Teixeira, and as this will inevitably lead to all sorts of inaccurate commentary on the National Guard among other things, a few things to keep in mind.

The Air National Guard is not like the Army National Guard in that the Air Guard is pretty much a 24 hour a day, seven days a week, military establishment.

This tends to go really under the wire in the U.S., which tends to think that the Guard is active, other than for monthly drills, when it's called up in an emergency. Not so. The Guard in general is much more active than supposed.  I was an Army National Guardsman, as has been noted here in the past, and I worked full time status periodically.  Indeed, if I add up all my full time status, and my time in the Army for training, I have as much or more time in day to day uniform as many of the soldiers in my era who did two years in the Regular Army.  

And that's the Army Guard.

The Air Guard flies 24 hours a day, seven days a week, and for some of its pilots, that's their full time job.  If you have an establishment flying that often, that means that it has ground crews working that often as well.  Air Guardsmen that I have known not only have done weekend drills, but week day stints of duty, and the like, even if they're ground crews. Air crews obviously have the same schedules as their aircraft.

Teixer was a member of Massachusetts Air National Guard's 102nd Intelligence Wing, which is probably now reeling in shame.


What's it do?

Well, it doesn't fly anything.

According to its website:

Our mission is to provide worldwide precision intelligence and command and control along with trained and experienced Airmen for expeditionary combat support and homeland security.

That doesn't really tell you much, but what we can piece together is that it's been quietly put on a sort of active duty status at some point to support the U.S.'s mission to Ukraine.

Truly, most of the stuff that was leaked has been interesting, particularly if you are a military geek, but not hugely secret.  What is embarrassing, however, is that this is further proof that the U.S. can't keep anything secret.

What's also of interest is this.

The leaker is an AIC.


That's an Air Force two striper, but that's deceptive.

In the Army, two stripes is the rank of Corporal, and at one time it kind of was the same thing in the Air Force.  Corporals have always been sort of a big deal in the Army. As late as World War Two, corporals fulfilled a role that was later filled by sergeants.  In the Army, a corporal is a Non Commissioned Officer and holds the grade of E-4.

An Army E-3 is a Private First Class.

In the Air Force, an E-4 is a Sergeant.  In the Army, a "buck" sergeant is an E-5. An Army Sergeant outranks an Air Force One, in other words.

Most E-4s in the Army are Specialists, a post World War Two rank that is not a NCO.  Corporals are rare.

E-3s aren't rare, but this guy has been in the service since 2019.  I don't know about the Air Force, but at the time I was in the Army National Guard, a soldier who was an E-3 after four years in the service would have been slated to go right out the door.  I frankly doubt he would have been eligible for reenlistment. That's a shocking lack of progress, at least it would have been, but maybe things are different now, or different in the Air Force establishment.

It's rally dangerous to psychoanalyze with; 1) no real patient, 2) remotely, and 3) without a license, but most psychology is flaming BS anyhow, so why not. That leads to this.

This stuff was all leaked, apparently, on a Discord.  I'm not familiar with Discord, but from what I understand of this story, this guy was pretty aggressive and got huffy when people weren't reacting with Cyber Joy in his small community over his leaks.  This leads to this.

Being an E3 at the end of four years and acting that way seems to put this guy in the oddball status to me.  He sure wasn't making grade in the Guard, so why not be a big deal on one of those stupid internet societies.

This is the second time in recent years where leaks were made by somebody pretty clearly psychologically disturbed, the other time being by Army Specialist Bradley Manning.  Manning figured in the Wikileaks matter, and there were clear signs that he wasn't right.  I don't know about Teixeira, but I note this as the service seems to have at least a semi poor record for screening folks with problems out, even in this era in which its difficult, to some degree, to get into the service.  Manning shouldn't have had access to classified documents, and it'll be interesting to see what was known about Teixeira.

What this does reveal, which should have already been known, that not everyone in the service is a hero or even normal.  Most people in the service are normal, but in recent years it's gotten so that whatever you did in the service affords you with Audi Murphy like status, which is just nuts.

There are a lot of predictions now that Teixeira can look forward to hard time at Leavenworth for eons.  Maybe. That has happened in some prior instances.  But my guess it that Manning's story is probably more illustrative.  He did seven years in prison, during which time he decided that he was a girl and underwent some sort of process to artificially attempt to affect that appearance, and then was pardoned by President Obama.  American justice at work.

That does raise this question, although it probably answers itself.  Given as the Russians were seriously wondering, and openly, if this was a disinformation campaign, why not build on that?  A more cynical nation might have simply had a couple of guys from intelligence stop by the Teixeira apartment in the middle of the night and give him an option he practically couldn't have refused and turned him into an asset.  Indeed, why not?  He could have been used to leak disinformation for the rest of the war, or as long as useful.  After that, well, he could have been given the choice of being discharged at the E1 grade with the condition he shut up, or assigned to something really unpleasant for a freaking long time.

But we don't do things like that, apparently.

So now we have this drama, which will play out with the drama of the war.

One person trying to make hay from the drama is Marjorie Taylor Greene, the overgrown toddler from Georgia who pretty clearly just uses stuff to draw attention to herself.  She's not a serious person, and has suggested that the Airman is a Christian antiwar hero.

Seriously?

Tucker Carlson jumped on the bandwagon a bit too.  Carlson shouldn't be taken seriously, but all of this goes to show how far gone the far right really is.

Wednesday, January 4, 2023

Meet The Press: Social Media.

The January 1, 2023, episode of Meet The Press was a special on the social media companies.

It was truly frightening, and it featured politicians in Congress from the left and right who were in agreement on that.

Well worth listening to.

Friday, November 11, 2022

Wars and Rumors of War, 2022. The Russo Ukrainian War Edition, Part Eight. The one in which the Russian forces collapse and Putin puts his finger on the nuclear trigger.

October 4, 2022

Russo Ukrainian War

When this war started, I never thought, several months later, we'd be seriously looking at a situation in which Ukrainian forces stood a chance of completely driving the Russian military out of territory that Russia has been occupying since 2014.

Nor, frankly, had anyone else.

But it's begging to look as if they might.  Indeed, it's more likely than not.

This is an example of Western military training, Ukrainian resolve, and the fact that the Russian army sucks, and always has, exercising its influence. Ukraine, it appears, is about to triumph in its second offensive in less than a month, and this one stands to expel the Russians from Ukraine,

Which means that a desperate Putin, who has painted himself into a corner, may be about to use tactical nuclear weapons.

Not until this past week would I have made that statement.  But I am now.  The man is unhinged from reality, and has left himself no choice, other than to act in a decent moral fashion or a manifestly evil one. But as observers of history and politics well know, at some point some people have so sold their souls such that the truth and morality no longer have any meaning.

Putin may have sold his soul long ago that reality no longer matters to him.

It won't work, but we're about to enter, maybe, the most slippery slope we have since . . . well ever.  More slippery than the Cuban Missile Crisis, and certainly slipperier than Able Archer.

When, um I mean if, Putin orders the use of tactical nuclear weapons, NATO will reply in force, by destroying Russian ground assets in Ukraine and naval assets in the Black Sea, which may then mean that the current war expands, possibly, into a general European war.  And if this war has proven anything, it's that the Russian military is so incredibly bad it won't be able to do anything whatsoever about it.

Of course, I suppose, it could retaliate with nuclear weapons, which I don't think it will, but which is a possibility of course.

At any rate, at this point, Russia appears to be very badly losing the war against Ukraine on territory that voted to leave Russia in 1991 but which Putin's Russia has been seeking to reclaim, and partially had.  Now, Putin's miscalculated war, whose calculations were based on the Russian army amounting to something as it last had . . . well never, seems to be going completely amiss.  Putin has left, however, his country very little choice.  He can't negotiate because he's declared the territory to be part of Mother Russia, and he can't win, as the Russian army is as bad as it has ever been.  The only thing he has left, as noted, are nuclear weapons.

Remarkably, Western military analysts do not seem particularly scared even while acknowledging the possibility, which should give us some comfort. Having long pondered a low yield nuclear war, they seem comfortable with one occurring, with only one side using them.

Let's hope it doesn't occur, and that God may help us all.

Господи, помоги нам всем.

Слава Україні!

Oct 4, cont:

Perhaps coincidentally, reports this morning report the movement of weapons from a nuclear missile unit, although at least in a Western army, such weapons would not be tactical nuclear weapons.  And Russian ballistic missile was deployed in the Arctic.  If these reports are correct, they are likely meant as warnings to the west, which won't and shouldn't be heeded.

Elon Musk, who proposed a peace plan on Twitter, received an enormous backlash, including from Ukrainian officials.  He called Crimea part of Russia since the 1780s, and uniting it "Khrushchev's mistake".  His plan also called for a UN administered vote on succession of those areas recently claimed to be annexed by Russia.

It was in fact conquered by the Russian Empire in 1783, but it had a distinct ethnic nature at the time.  It was its own political subdivision inside the Soviet Union, although many Crimean Tartars were deported by the USSR after World War Two. It voted to leave Russia and join Ukraine in 1991 and had the status of a political subdivision until invaded and occupied by the Russians in 2014.

Musk has been taking a lot of flak on Twitter recently. This comes just after a spat with economist Robert Reich.

Oct 4, cont:

Washington Post headline from today:

Ukraine hammers Russian forces into retreat on east and south fronts

October 5, 2022

Putin signed the annexation order on the partially occupied territories yesterday.

October 5, 2022 cont.

The Ukrainians have broken through at Svatove in Luhansk.  Basically, the Russians are coming unglued.

October 8, 2022

A giant truck explosion has damaged the Crimea Bridge, the only land route over the Black Sea to Crimea.

October 9, 2022

Sergei Surovikin, who previously led Russian forces in Syria, has been placed in command of the effort in Ukraine.   He'd also previously led the Russian effort in southern Ukraine.  Recently, he's been in command of Russia's air and space assets.

October 10, 2022

Russia's reply to the truck bombing of the Crimea Bridge has been a missile offensive on Ukrainian targets, many of which are simply civilian targets.

Russia has effectively reverted to the practices of the Second World War in regard to target acquisition.  I've noted it before here, but I regard the targeting of civilian targets from the air, by anybody, during World War Two to have been criminal in nature.  Collateral damage, unfortunately, is another matter.

There's no excuse whatsoever for it now.

The truck bombing remains of unclear origin.  Nobody has said anything to this effect, but it appears to likely have been a suicide bombing, which is generally out of character for the Ukrainian war effort. Some Russian sources feel that it included Russian dissident elements in its organization, and it may have.  It may very well have been an independent or semi-independent act.

October 11, 2022

Iran

Widespread protests in Iran have extended to the nation's refineries.

Russo Ukrainian War

A second day of Russian missile attacks is ongoing in Ukraine, as the Russians do the only thing they seem capable of, lashing out at Ukraine in general.

Russian cyberterrorists launched a cyberattack on U.S. airports yesterday.

October 13, 2022

Uniting two pariah states in one war, Iranian Revolutionary Guard personnel are training Russian troops on the use of Ukrainian drones, inside of territory occupied by the Russians in Ukraine.

All the while, protests are spreading in Iran against its government over its treatment of women, effectively, and the loss of life of women at the hands of Iranian authorities.

October 15, 2022

Russia has suspended additional recalls/levies, having brought 220,000 men into service.  260,000 Russian men have fled the country.  It appears that conscription/recall was one more thing the Russian government was unable to effectively manage.

October 15, cont.

Two volunteer Russian soldiers, from a former part of the Soviet Union, opened up on their fellow trainees today in Russia, killing eleven of them.

Which gives credence to my theory that the Crimea bridge bombing fits into the long history of auxiliary regional warfare.  I.e, I think that will turn out to be the work of Georgians, or Armenians, or Azerbaijan's, rather than Ukrainians.

All of which means Russia is starting to encounter the fruits of its prior repressions in the current attempt to annex and subjugate Ukraine.

October 16, 2022

Ukrainian orchestra conductor Yuri Kerpatenko, Керпатенко Юрій Леонідович, was murdered by Russian soldiers for refusing to perform in an orchestra performance hosted by the Russian in Kherson Oblast.

The Russians are well on their way to making themselves the Nazis of the early 21st Century.  And I do mean the Russians, not Putin.  Just as the crime of Nazi Germany have tainted the Germans ever since, so will the crimes of the Putinist taint Russia, lest it do something to stop them from carrying on.

October 18, 2022

Russia has hit Kyiv with numerous suicide drones, part of an overall missile and drone attack on Ukrainian population centers.

More and more Russia of 2022 actions like Germany of 1939-1945.

Ethnic tensions among Russian recruits resulted in Tajik soldiers killing Russian compatriots in Belogorod.  Their commander had insulted Islam and claimed the invasion of Ukraine a holy war.

This is interesting in that Russia has rapidly reached a state of demoralization within its Army which has surpassed that experienced by the United States during the Vietnam War and which should be a sign that its army may simply come apart.

October 19, 2022

Iran

A Persian edition of the British newspaper The Telegraph ran an article on how to use handguns.  It must be noted that given the UK's position on firearms, that's rather ironic.

Protests are spreading and children are now included in them.  Factions appear to be developing in the government. 

Russo Ukrainian War

It has been confirmed that Iranian Revolutionary Guards are in Crimea as training cadre on Iranian drones, as their own country edges towards a revolution which would leave them as permanent guests of Putin's regime.

The last two days, the Russians have been targeting Ukrainian infrastructure with missile and drone strikes.

The Russians are evacuating Kherson.

October 21, 2022

Conor Kennedy, the grandson of Robert F. Kennedy, is apparently just back from the war after having served in the Ukrainian Legion.

By his own account, his time in the war was fairly short, although he reports that he liked being a soldier.

The Russians are withdrawing from Kherson. It is believed that they may attempt to blow up a substantial dam in the region in order to cover their withdrawal.

October 22, 2022

Russia is trying to evacuate civilians from Kherson while also pouring in conscripts, fodder for the cannons.

October 24, 2022

From The Pilar interview with Ecumenical Patriarch Bartholomew I:

The Russian-Ukraine War is a conflict largely between Eastern Orthodox Christians. How do you feel about this as the spiritual leader of the world’s Eastern Orthodox Christians?

The ongoing war waged by Russia into the sovereign territory of Ukraine has weighed heavily on our mind and heart in recent months. It is true that it has been characterized as Orthodox fratricide, although the consequences have reached many more people, including Ukrainian Catholics as well as other Christian and religious believers, and the repercussions have surely been felt throughout the world.

What is still more painful to us is the fact that the Patriarchate of Moscow has stooped to the level of submitting to political ambitions of the Russian Federation, even endorsing and seemingly blessing this cruel invasion and unjustifiable bloodshed. We have repeatedly condemned the aggression and violence, just as we have fervently and fraternally appealed to the Patriarch of Moscow that he separate himself from political crimes, even if it means stepping down from his throne.

October 25, 2022

Myanmar

The government launched an airstrike on a celebration by the Kachin Independence Organization in the northern state of Kachin, killing at least 80 individuals.

The air force is equipped principally with Russian and Chinese aircraft.

Russo Ukrainian War

Russian diplomats have been yapping about Ukraine preparing to use a "dirty bomb", which it isn't. The fact that they're doing this, however, is raising a lot of speculation about the purpose of this Kremlin story.  Something is going on.

It's now clear the recent annexation of Ukrainian territory by Russia has caused a split in the Kremlin, with some Russian figures reaching out to the west to try to start negotiations.

October 25, cont.

The US has been hitting Al Shabaab targets in Somalia, including one earlier this week.  The one earlier this week was in support of Somali National Army forces.

October 30, 2022

Expanding the drone war, Ukrainian naval drones hit a Russian cruiser yesterday.  Russia called off the grain deal in retaliation.

The drone attack was by a group of drones, showing how naval war is rapidly evolving.  Effectively, such vessels take the place of PT boats, when PT boats were still viable.

General Alexander Lapin has been relieved of his command of the central area Russian forces in Ukraine.

At least where I live, the World Series, being run on Fox, is featuring a television commercial opposing US aid to Ukraine in the current war.

November 2, 2022

Russo Ukrainian War

The Wagner Group is attempting to recruit fromer Afghan National Army refugee commandos who have taken refuge in Afghanistan.  They are resistant to recruitmant, but fear being deported to Afghanistan.

According to the NYT, Soviet commanders recently discussed the topic of the use of nuclear weapons.  This without Putin.

This is probably not cause for undue alarm, but it is cause for alarm.  Americans might wish to recall that this occured in our military in the 50s and 60s, and it was politicians that percluded their use by frustrated commanders.

North Korea

North Korea, the diapered baby of nations, fired 23 missles into the sea this week.

It's hard to know why this isolated Stalinist theme park does these things, other than to get attention.  Whatever it is, it doesn't work.  Indeed, the Communist Clown State risks somebody taking it seriously at which point its ongoing existance, or at least that of its leadership, stands to become iffy.

November 3, 2022

Uniting both of the topics above, North Korea is supplying artillery shells to Russia.

Yesterday it launched an ICBM over Japan.

November 8, 2022

Ukranian President Zelensky expressed an openess to peace talks with Russia, on Ukrainian terms, those being:

One more time: restoration of territorial integrity, respect for the U.N. charter, compensation for all material losses caused by the war, punishment for every war criminal and guarantees that this does not happen again

This is not insignificant, although its likely to be dismissed as being so.  At least the condition of war crimes trials is likely to be bargained away.  This may be an actual bid to open talks, done with Western backing.

Where it would lead is another matter.  Maybe Ukrainian territorial integrity, but combined with a promise not to join NATO.

November 9, 2022

While there are fears it may be a ruse, the Russians appear to be withdrawing from Kherson in advance of a Ukrainian offensive.

Do so is wise in light of their inability to defend it, but also telling.  Kherson was taken early in the current war and Ukraine will soon advance back to the Dneipr.

November 10, 2022

The United States estimates that both Russia and Ukraine has sustained over 100,000 casualties in the current war.

Note, that's casualties, not deaths.

November 11, 2022

The Ukrainians are in Kherson and will very soon have retaken the complete left bank fo the Dnipr.  This is an epic Russian defeat, and the Ukrainians will be in striking distance of Crimea.

Prior Related Threads:

Wars and Rumors of War, 2022. The Russo Ukrainian War Edition, Part Seven