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Gimme another o' them...
Thursday, May 31, 2001  permanent URL for this entry

So I spent last night in a cabin (where "cabin" in this case includes ceiling lights, electrical outlets, bunk beds, two bathrooms with showers, and electric heat (although it was off), but at least includes being in the woods); also in the cabin were fifteen fifth-grade boys and three other fathers. Miraculously, we got quite a bit of sleep!

The grownups slept up in a "loft" above the boy-covered ground floor; this was nice in that it kept us out of range of flying objects, but made it tough to (for instance) find and disable unauthorized flashlights.

The cabin went through all the Required Stages quite quickly: spontaneous pillowfights, "you're so stupid that" jokes, uncontrollable laughter, rude noises, wild giggling. One of the more ambitious fathers went down and sternly lectured the most hysterical kids that they could stay up all night if they wanted to, but they should do it quietly out of respect for those who did want to sleep. He also said (bluffing, I think), "who wants to do twenty minutes of pushups and situps?" The loudest kids called his bluff, and bounced around on the floor for maybe ten minutes before collapsing, panting, back into their (incredibly messy) bunks.

I think the calisthenics sped up the falling-asleep process; it was quiet by well before midnight.

We all woke at six a.m. sharp through some loud noise or effect of the Group Mind. We cudgled most of the boys into showering if they hadn't the night before, and brushing their teeth if they'd remembered a toothbrush. At quarter to eight, one of the dads marched the boys in Group Three down to the main cabin, because it was their turn to be servers.

At breakfast, the fifth grade was magically transformed into a well-oiled dining machine. The teachers had somehow flattered or threatened the kids into thinking that doing the right thing, meal-wise, was cool. The servers moved through the kitchen like a conveyor belt, and brought out place settings and big metal bowls of Rice Krispies, and milk and orange juice and stuff. When a table was done with that, the table's assigned server gathered everything cereal-related onto the tray, took it to the back and threw the compostable stuff into the white composting can, the other disposables into the black trash can, and returned the durable stuff to the kitchen.

A few minutes later, the servers trooped through the kitchen again, and returned with trays of french toast and sausages and syrup. After everyone was done eating, the servers cleared the tables, got sponges and wiped the tables, and then got big push-brooms from somewhere and zoomed around between the rest of us making hills of napkins and crumbs and stuff on the floor.

Now I'm usually a relatively radical individualist, and "cog in a machine" is a phrase that, theoretically, has mostly negative connotations. There was, though, something very gratifying, endearing, encouraging, about seeing these kids working together so well. I was reminded, or I realized, that one of the things that free proud competent individuals can do, when necessary or appropriate, is act as cogs in an efficient and effective machine.

And that's good.

Very interesting first-hand account of a Distributed Denial of Service attack and Steve Gibson's fascinating investigation into the hows and whys of it.

Today the candy machine down the hall has Chuckles! I used to love Chuckles. So I bought some. They were good. They were not the meat-flavored kind.

Even if standardized tests were "accurate" in some sense, there'd be good reasons not to use them as they're typically used (I have to write a full rant about that sometime). But they're not accurate.

Use NT, pay the price:

J.S. Wurzler Underwriting Managers, one of the first companies to offer hacker insurance, has begun charging its clients 5 percent to 15 percent more if they use Microsoft's Windows NT software in their Internet operations.

Last I looked, Eris Discordia, Rationality, Azathoth, and Nyarlathotep were in the lead.

If the binary expression of pi contains all possible bit sequences, there could be interesting legal consequences! (Not really; but it's a funny meme.)

Wednesday, May 30, 2001  permanent URL for this entry

Speaking of Fanny Hill, I must point out FannyHill.com. Are these people just clueless, or is there irony here that I'm missing? Do they wonder, for that matter, why their guests from the UK tend to snicker (or, I guess, snigger) at the name of the place? I wonder if there's a "Pussy Manor" in England somewhere that gets similar incredulous stares from American tourists?

A reader writes:

Why is marriage regulated by the state at all?

Which is basically what I was musing about at the end of yesterday. The government makes lots of uses of the concept of marriage; spouses have various rights (hospital visitation, default heir, etc) and other effects (tax penalties, etc) in current legal systems. There are two separate questions: should the government have these categories (I suspect that in many cases it's reasonable), and should the categories be the same as the religious / cultural concept of "marriage"? I think the answer to the latter question is probably "no", in the ideal world. But it's sorta ingrained...

On the subject of interracial / intrasexual marriage, a reader writes:

Okay, now substitute species for gender in the above, and tell me why...

If there were other (something) species, that'd IMHO be a fine question; nothing wrong per se with interspecies marriage. But we don't know of any other (something) species, and most of the things we associate with marriage (child rearing, income sharing, default heirship, etc) don't seem to make much sense between a (something) creature and a non-(something) creature.

(For "(something)", fill in your favorite from "intelligent", "self-aware", "language-using", and so on. I'm unwilling to take a position on that question this morning!)

An elk?

On the other hand, maybe decades from now people will look back and think how primitive we were in 2001 to dismiss the idea of having a lifelong committed legally-sanctioned relationship with an elk. Who knows! Reading about the history of obscenity and slavery and homosexuality and miscegenation laws, it's amazing how narrow-minded and barbaric some people writing twenty or fifty or a hundred years ago sounded. It's possible that we've now reached Complete Enlightenment, of course, but I suspect we haven't.

What things that we think perfectly normal (or repugnant) today will people think repugnant (or perfectly normal) in 2050? I wonder.

The pseudonymous Nicholas Urfe writes:

Haven't read it, and I'm not entirely certain of the title, but you might try looking for Girls Bend Over Everywhere. Or maybe it was Girls Lean Back Everywhere? Hang on--it's Girls Lean Back Everywhere, by Edward de Grazia, and here's a link to a review (ain't Google grand?)--


--and it seems his thrust is more the effect of obscenity trials on the artists and works, than the cases themselves, but he's a lawyer who's fought a lot of obscenity cases, and it's a scholarly tome, so.

And it'll give you a new term: Comstockery. Down with it and all its ilk, everywhere!

Indeed! I'd heard of that book somewhere before. It's a memorable title, both for the endearing mental image, and for the cadence. It sounds like a mnemonic. "Girls Lean Back Everywhere": GLBE. Gay, Lesbian, Bisexual, and Elk?

Oh be A Fine Girl and Kiss Me.

If you search Amazon for "obscenity", "Girls Lean Back Everywhere" is one of the first hits. Wandering through the wonderful maze of "if you're interested in this, you might also be interested in this" links leads to bunches of other vaguely-related books, including a few that might be the insightful study of the constitutional history of obscenity that I failed to find in Barnes and Noble the other day.

Or not. One of the most promising-looking, "Pornography and the Justices: the Supreme Court and the Intractable Obscenity Problem" is a great illustration of how not to advertise your own book. I might well have ordered it immediately from Amazon if not for the utterly lame posting by the author himself...

Feminists against speech. I don't really understand this. I mean, sure maybe some of what's written in the ad is false or misleading; perhaps absolutely all of it is. But wouldn't this be a great chance for Real Feminists to buy a counter-ad of their own, rebutting the claims in the IWF's ad? Exactly what is gained by trying to keep the ad from being printed, or forcing publishers to apologize for printing it? I don't get it. (A link to rational coverage of this story from the non-IWF side would be most welcome.)

The reader who writes

David M. Chess Security Issues in Mobile Code System

Is probably looking for this. There seem to be PDF versions of all the papers in that collection, including mine, right there on the page. Cool!

On yesterday's "librarians against free speech" story, a reader writes:

The Washington Post article doesn't give enough information to say for sure, but IIRC from previous discussion on the topic in some mailing lists I'm on, the WP may have made the mistaken assumption that anyone who works in a library is a librarian. I seem to recall that the complainants in the Minneapolis case were non-librarian library employees.

which I hope is true. I'm still too young to be disillusioned about librarians.

Another reader writes, perhaps in reference to Mia:

Who knows what evil lurks in the heart of Woman? In the shadows, the shadow, of the back alleys, of the way back, back to the way it was supposed to be when we were children, before we learned, or gave in to the belief that, the shadows were reality. Once, her lips, the glisten of her eye, the abandoned truck in that field of artichokes, once they meant something, presaged everything, became the way we thought about the rest of our lives. But no more. Now they are just images, just rusted hulks, and the fields now covered with tract housing, SUV's chortling down the cul de sacs, obscures the memories of what was, of what could have been. And you, where are you?

And finally, another reader with words to live by:

Come, my friend, come with me to the rushes, where we will listen to the whippoorwill and laugh at the way dank waters feel in our shoes. Come, friend, and let us feel the summer sun on our bare backs and fall asleep under the oaks. There are dragonflies to catalog, pictures to paint in the grasses, stories to tell in the busy lives of the clouds. Come, friend, let us tell these stories together, you and I.

Messages everywhere.

Tuesday, May 29, 2001  permanent URL for this entry

Dad writes:

When did laws against interracial marriage go away? -- During my lifetime! When I was young you and M couldn't be married in California -- or even live together if you were married elsewhere. We live on the ragged edge of civilization.

Boy, do we! In fact early in my lifetime an "Oriental" and a "White" couldn't legally have been married in Virginia or Alabama or a bunch of other states. (The general thrust of miscegenation laws was apparently to keep "Whites" from marrying anyone else, not just to keep particular pairs of "races" apart.)

The Supreme Court decision that got rid of those odious laws was the beautifully named Loving v. Virginia, 388 U.S. 1 (1967). Nineteen freaking sixty-seven!!


The Supremes had been dodging the issue for many years, but when they finally faced it at least there were no dissenters.

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

-- Chief Justice Warren, for the Court

Okay, now substitute gender for race in the above, and tell me why same-sex marriage isn't a fundamental right?

Reverting to our original topic, the obscenity question, I point the reader with some amusement to the appendix to Justice Douglas's dissent in Memoirs v. Massachusetts (page 433).

It's the text of an address by a Universalist minister, comparing "Fanny Hill" to Normal Vincent Peale's "Sin, Sex, and Self-Control", much to the disadvantage of the latter.

Dr. Peale and Fanny Hill offer the two basic choices open to man. Man is free to choose an autocentric existence which is marked by freedom from ambiguity and responsibility. Autocentricity presupposes a "closed world" where life is predetermined and animal-like. In contrast to this view, there is the allocentric outlook which is marked by an "open encounter of the total person with the world." Growth, spontaneity and expression are the goals of such an existence.

Dr. Peale epitomizes the autocentric approach. He offers "warm blankets" and comfortable "cocoons" for those who want to lose their humanity. On the other hand, Fanny Hill represents the allocentric viewpoint which posits the possibility for man to raise his sights, stretch his imagination, cultivate his sensitiveness as well as deepen and broaden his perspectives.

Gotta love them Universalists...

Whose side are you on Department: Some Minneapolis librarians strike a blow against freedom of information.

Under the heading "if New York City were an alien planet", as well as obscenity, Ray Davis writes:

I would not send this self-promotion did I not promote Samuel R. Delany more:

The referenced article being a significant chapter in a notable study of the naughty bits of Delany's opus.

Speaking of the Supreme Court dodging issues, they just declined to hear a case about the display of the Ten Commandments on government property. So a lower court's ruling, that the display violated the separation of church and state, will stand. Which seems entirely plausible to me, but I'd have preferred, say, a summary affirmation from the Supremes...

Civil Unions for All: The Vermont House has approved (I wonder if these AP Wire links expire?) a bill that would widen the much-admired Civil Unions law to include not just same-sex couples, but anyone else who lives in a (vaguely?) similar relationship, but cannot marry. (The bill will probably not pass the Senate or be signed by the Governor.)

I have no idea whether this is a good thing in terms of short-term politics; some gay advocates say that it improperly equates a committed gay couple with, say, an adult child living with an elderly parent. I think I like the theory, though: I'd rather that the government left the concept of "marriage" to the churches and the cultures, and acknowledged only some sort of "civil union" for anyone wanting to declare a committed civil partnership for legal purposes. It's a very long way from here to there, though, and the territory in between will no doubt be challenging.

Monday, May 28, 2001  permanent URL for this entry

Like Justice Holmes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry VI. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

(That's Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting), quoting Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).)

Memorial Day

So I was talking about how cool it is that all the Supreme Court decisions are online, and how suprisingly readable and short most of them are, and the little girl said "Do they have the Dred Scott Decision?" because she's been learning about that in school. And of course they do. Now the Dred Scott Decision is 156 pages long, so we didn't print out the whole thing, but we printed out the 38 pages or so of the main opinion, and I highlighted some of the key passages in it and talked about it with her. She wants to take it in to school and show everyone.

(When they were doing a unit on the Constitution, I was dismayed to find that they didn't actually have copies of the Constitution to read, so I gave her one of the little bound ones that we for some reason have lying around. It's still in her notebook; I don't know if anyone's looked at it, but at least it's there!)

Then on the way to the grocery yesterday I stopped at Barnes and Noble to pick up a couple of books for M, and I looked around for something on the history of obscenity in constitutional law. I didn't find anything on exactly that topic, but I bought a copy of Murdoch and Price "Courting Justice: Gay Men and Lesbians v. the Supreme Court". It looks like an interesting treatment of the history of the decisions (and non-decisions) of the court on the subject of homosexuals and homosexual behavior. Considerable overlap with the obscenity theme (as I've harped on before, obscenity laws are used most often against materials that appeal to non-majority groups).

There's a relatively obvious thread running through the law's treatment of obscenity, its tolerance of slavery, and its treatment of homosexuality. All three involve the enshrinement of irrationality by appeal to tradition: the Dred Scott Decision found that slaves were property because they'd always been considered property, decisions like Miller v. California find that certain words and images aren't constitutionally protected because everyone knows they're evil, and Bowers v. Hardwick for instance found that it's okay for the state to persecute homosexuals because governments have always persecuted homosexuals.

I remember reading the Bowers v. Hardwick decision back in the 80's, and I remember in particular the passage from the dissent that I quoted above. It is, indeed, revolting in a nation supposedly dedicated to liberty, that liberty can be denied on the grounds that it has always been denied in the past.

To continue this theme I should probably read a couple of miscegenation decisions. When did laws against interracial marriage go away?

... the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to lead their lives differently.

-- Blackmun again

Daniel Galloway writes:

They started a distribution system with some universities years ago. Named the project Hermes. The lead site on it AFAIK, is [link]. So while I find Findlaw useful as well, you're just a little off base castigating the Supreme Court for not having the opinions on their site, though it looks like they could do a better job promoting the Hermes project. It's really amazingly timely.

just a nit (please don't flame)

Flame, moi? I didn't intend to castigate, only to note that all I could find on the main Supreme Court site was like 1999 and 2000. No obvious links to anything more complete. Hermes looks interesting (he was always my favorite Greek god when I was a kid).

Ed Snible writes:

It's very difficult to understand intellectually what censors feel instinctively. However, I once read an essay which offers useful words on the subject. Have you read Times Square Red, Times Square Blue by Delaney?

The second half of the book is a wandering essay on public policy. I can't do a proper summary without the book handy, but there is a small section where he argues that the moral arbiters understand that "Eden is red, not green." (where red = passion).

Delaney describes the culture war between New York's homosexual underclass and the forces of public policy in a way that would make a good science fiction book if New York City were an alien planet. Worth reading.

Whaddya mean "if"? *8) I haven't read it; thanks much for the pointer!

Another reader writes:

I had woodchuck for dinner

which of course brings to mind "I'd rather be". I'd rather be...

contacted by beneficent aliens from Planet Zleen


making videotapes of pedophiles and the Church Militant in the same room. Sorry. (But great ratings.)

sitting on a set with Regis when he says "Millionaire? Did I say millionaire? I meant billionaire!"

playing chess via email

dead than stupid.

Wild! I think I'd rather be stupid than dead. Stupid people sometimes have lots of fun.

I'd rather be...

making love


reading a blog.

doing what I'm doing.

Those last two raising interesting questions about the meaning of "rather" in this context.

Nomic: (remember Nomic?) None of the Rule Change Suggestions that are queued up really strike my fancy, for some reason, and I'm not applying any of them. I think part of it is that without exception each one consists simply of the text of (what I imagine is intended to be) a proposed new Rule; anyone wanting to suggest a change to the Rules should read Rule VIII and do what it actually says. For instance, to suggest creating a new Rule whose text is "foo", a player might send "Now I suggest the following change(s) to the Rules: create a new Rule whose text is 'foo'." (Rather than sending simply "foo").

Pedantic, ain't I?

Whether or not Rule XXX gets modified before Friday will give us some measure of how much interest there is in extending the life of this particular CEOLNN game.   *8)   Don't be afraid to propose broad and sweeping changes.

The one move I am applying is this:

I suggest the following modification(s) to the Mapping:
Set Member 8,8 of the offical domain to 1
And I cannot think of an appropriately witty pun
How fun

which sabotages the (ex-)glider, in case Rule 36 should ever fire again.

Status is here and history here as usual, and don't forget to brush and floss every morning and night (Rule XVIII). Also remember that we must all inhale deeply through the nose and exhale through the mouth, and that we shall breath(e) within certain rhythmic cycles and shall not be afraid to cover our bodies in rare and exotic spices (Rule XXII). Or so they would have you believe.

Friday, May 25, 2001  permanent URL for this entry

Everything has a message for me. The pattern in the spaces under the guardrail by the side of the road, the way the weeds sway in the gaps in the wind, would tell me things if only I would stop and study them. Messages everywhere.

But they aren't urgent messages. If I don't get to them today, maybe tomorrow. If not this year, maybe next year. If not this time around, maybe next time around; maybe when I'm being someone else. Lots and lots of time.

I remember childhood, partly, as a time when I had the luxury to read all the messages I wanted. Sit by the wall and throw this bouncy-ball into the corner by the bookcase a thousand times, and see what the pattern feels like. Lie in the sun looking up at the railing beside the road, and watch the parallax as I move my head, or as I don't move my head but just let the sun move across the sky.

Paranoia, perhaps, is when there are messages everywhere, but the messages are urgent, and they bother you.

So yesterday while waiting in the lobby for the Spring Ballet Recital (the little daughter got a Perfect Attendance Award and her class got a Class Spirit Award, and she was a dazzling dryad) I read Memoirs v. Massachusetts, 383 U.S. 413 (1966). The "Memoirs" of the title is a book: John Cleland's "Memoirs of a Woman of Pleasure", commonly known as "Fanny Hill". I remember asking my parents, sometime in my youth, what "banned in Boston" meant (and also what Tom Lehrer was talking about when he said "I have a hobby: re-reading Lady Chatterly"), and they explained some of this stuff to me. And now here it all is in black and white!

Fanny Hill

Amusingly, the full title of the Memoirs case is:


Picture the plucky little book, somewhat dog-eared and perhaps with a suspicious stain here and there, dragging the honorable Attorney General of Massachusetts into the Supreme Court, to argue against its banishment from the hills of Boston.

In the Memoirs case, unlike in Roth, the good guys won, albeit on mostly technical grounds. Reading the opinions is very educational. Supreme Court decisions are alot like a newsgroup (ok, ok, I know, bear with me) without the spam, and with the flaming usually (although not always!) muted. You get to watch a slowly-changing set of characters dealing repeatedly with the same basic issues in slightly different settings, bringing up old grudges, thinking of new arguments for their positions, even occasionally learning something or changing their minds.

Writing for the plurality in Memoirs, Justice Brennan finds that the Massachusetts court that found "Fanny Hill" obscene did it wrong, because it acknowledged that the book did have "some minimal literary value", but under the Court's interpretation of its own decisions in Roth and subsequent cases, something can be obscene only if it is "utterly without redeeming social value". (This standard was later abandoned in Miller v. California.) So since the lesser court found that there was some minimal value, the Roth test isn't passed, and the material can't be obscene.

In his opinion, concurring with the judgement but not agreeing with the reasoning, Justice Douglas expresses exactly the same sort of bewilderment that got me started on this research in the first place. What's so bad about sex? Why does the court think it can prohibit speech about sex, even if it judges it to be "utterly without redeeming social value". Where does that supposed power, to ignore the First Amendment in this particular case, come from?

Publications and utterances were made immune from majoritarian control by the First Amendment, applicable to the States by reason of the Fourteenth. No exceptions were made, not even for obscenity. The Court's contrary conclusion in Roth, where obscenity was found to be "outside" the First Amendment, is without justification.

In his dissenting opinion, Justice Clark makes a three-pronged argument for the banning of "Fanny Hill". First, he does not see any requirement in Roth and subsequent cases that to be obscene a work must be "utterly without redeeming social value". Clark would like to be able to ban, basically, any book that he doesn't like, or at least that is "too much for" him, regardless of whether or not it might have some value.

In this part of his argument, Clark relies mostly on loaded words. He cites the "flow" of pornographic material reaching the Court, and the "increasing problem States have in controlling it." He is upset that the "utterly without redeeming social value" criterion "gives the smut artist free rein to carry on his dirty business." The publisher of Fanny Hill is "preying upon prurient and carnal proclivities for its own pecuniary advantage."

Fighting words, surely! But without actual substance. Is the corner butcher "preying upon gustatory and carnal proclivities for his own pecuniary advantage"? Should he accordingly be banned?

The second prong of Clark's argument is that Fanny Hill is in fact without value of any kind. It contains, he says, nothing but descriptions of sex. How can descriptions of sex have any value? Obviously they cannot! If some namby-pamby literary critic or professor claims that it does, well to hell with them! Clark knows better. He ridicules the skill and standards of the various defense witnesses that testified to the book's (minor, but real) merits. Even if it was well-written, he says, that wouldn't count:

So-called "literary obscenity," i. e., the use of erotic fantasies of the hard-core type clothed in an engaging literary style has no constitutional protection. If a book deals solely with erotic material in a manner calculated to appeal to the prurient interest, it matters not that it may be expressed in beautiful prose.

So beautiful prose, which usually has value, becomes valueless if used to excite lustful thoughts (if indeed that's what Clark means by "prurient"; nowhere in Memoirs is the word defined, but in context that's what it seems to mean). Why? Apparently this is too obvious to bother explaining!

Clark's third prong is more substantial. He cites a number of psychologists, sociologists, law enforcement people, and clergy who believe that obscene material produces anti-social conduct. Now I tend to suspect that these are the same people who would have gladly testified that masturbation causes blindness and warts (one of them is in fact J. Edgar Hoover, now well known to be among the baddest of bad guys), but I think it's worth considering what the force of that argument would be if it were true.

If reading or viewing erotic (obscene, prurient, lust-inspiring, "hard-core") material did in fact, in at least some people, increase the likelihood of anti-social acts, would it then be proper or allowed to ban erotic material? And what about non-erotic material with the same effect? If, say, humorous songs about the joys of safecracking were found to in fact increase the chances that a listener would in fact become a safe-cracker, could we ban all humorous songs about the joys of safecracking?

Now there's no great market for humorous songs about the joys of safecracking. And perhaps that's a key to why sexually-stimulating material gets such harsh treatment. If people were to hotly persue material about the pleasures of theft, and such material were available on every streetcorner and millions of websites, perhaps (if we believe the "read it, do it" argument) there would be a serious increase in theft. But that's unlikely to happen, since people aren't generally all that interested in reading about the pleasures of theft.

The pleasures of sex on the other hand... There, there's clearly a huge market. So even if we believed that to read about something is to become likely to do it, while we might theoretically object to positive stories about theft, we're unlikely to go to much trouble to suppress them, since they're rare to begin with. Whereas if we believe that reading about or watching sex causes bad behavior, we're likely to see a huge extant problem that needs to be dealt with.

Now I don't actually think that reading or watching (or listening to, or smelling, or tasting, or touching) pornography (erotica, lust-inducers) does lead to anti-social behavior, at least not to a significant degree in the general public. (For any given field of art or experience you might name, there will be someone who might be inspired to rape or theft or murder by it; erotica isn't unique there.)

But even if I did, I don't think that would justify banning it. The argument might be made that the First Amendment only protects the expression of ideas, not the distribution of information that has other effects ("fire" in a crowded theater, blackmail, fraud, etc). And if erotica really tempts or drives people to anti-social acts, that's an "other effect".

But banning speech is so antithetical to the principles of freedom that the "other effects" must be obvious and extreme. If humans automatically went into homicidal rages upon viewing erect penises, a strong argument could be made to ban the display of erect penises. But of course humans aren't like that. If pornography had a large enough effect on behavior to justify banning it on that grounds, the fact would be obvious to all, not a subject of ongoing debate.

So contra Clark I don't believe that Fanny Hill is utterly without value, I don't believe that it would be allowable to ban it even if it were, I don't believe that obscene material has anti-social impacts on the reader, and I don't believe that it would be allowable to ban it even if it were (for any at all plausible account of those impacts).

There are two other dissents in the case that I haven't read yet; Justice Harlan seems to argue the states' rights view: that states should be free to ban various things if they want to, and the Supreme Court shouldn't be second-guessing them. Maybe the federal government couldn't have banned Fanny Hill, but Boston can if it wants to. This theory has, I think, more or less withered away in recent decades.

Justice White basically repeats Clark's first prong, that in his reading of the revious cases, it's not necessary for a work to be utterly without social importance before it may be banned.

So now it looks like I need to read Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) which is cited in both Roth and Memoirs, and seems to be an early case in the "exceptions to the First Amendment" thread.

Also I should read "Fanny Hill"! Does Amazon have it? Of course Amazon has it. But it's also online!

No one tell Justice Clark...


earlier entries