Public order crime case law in the United States

In criminology, public order crime case law in the United States is essential to understanding how the courts interpret the policy of laws where the moral and social order of the state appears to be threatened by clearly identified behavior.

Loving "et ux" v Virginia 388 U.S. 1 (1967)

The issue was whether Virginia's statutory scheme to use the criminal law to prevent marriages between persons solely on the basis of racial classifications violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. The U.S. state of Virginia sought to justify the law on the ground that marriage had traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

The statutes proscribed generally accepted conduct if engaged in by members of different races. Over the years, the Court had consistently repudiated " [d] istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." The conclusion was that there was no legitimate overriding purpose independent of invidious racial discrimination to justify this classification.

tanley v Georgia 394 U.S. 557 (1969)

The issue was whether Georgia's obscenity statute was unconstitutional in violating the First Amendment (made applicable to the States under the Fourteenth Amendment) insofar as it punished mere private possession of obscene matter. Georgia, relying on "Roth v. United States", 354 U.S. 476 (1957), argued that the statute was valid on the ground that "obscenity is not within the area of constitutionally protected speech or press." The States were free, subject to the limits of other provisions of the Constitution to deal with obscene material in any way deemed necessary, just as they might deal with possession of other things thought to be detrimental to the welfare of their citizens. If the State can protect the body of a citizen, may it not, argued Georgia, protect his mind? Justice Marshall said that it was now well established that the Constitution protects the right to receive information and ideas regardless of their social worth, see "Winters v. New York", 333 U.S. 507, 510 (1948). In U.S. society, all should have the right to be free, except in very limited circumstances, from unwanted governmental intrusions into their privacy. The appellant was asserting the right to read or observe what he pleased - the right to satisfy his intellectual and emotional needs in the privacy of his own home. He was asserting the right to be free from state inquiry into the contents of his library.

:"If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

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

The trial judge instructed the jury to evaluate whether the materials were obscene by applying by the contemporary community standards of California. The State argued that obscene material is not protected by the First Amendment per "Roth v. United States", 354 U.S. 476 (1957). Chief Justice Burger said that while "Roth" presumed "obscenity" to be "utterly without redeeming social importance," "Memoirs v. Massachusetts", 383 U.S. 413 (1966) required [413 U.S. 15, 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 the criminal standards of proof. Rejecting the "Memoirs" test, 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; (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. Thus, 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. There were no fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These were essentially questions of fact, and the U.S. was simply too big and too diverse for the Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus existed. Thus, each jury would apply local standards. Burger rejected the spectre of repression. He refused to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material as demeaning 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."

=Hustler Magazine Inc. "et al" v Falwell 485 U.S. 46 (1988)=

To protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved.

Generally speaking the law did not regard the intent to inflict emotional distress as one which should receive much solicitude, and it was quite understandable that most, if not all, jurisdictions had chosen to make it civilly culpable where the conduct in question was sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that were less than admirable were protected by the First Amendment. In "Garrison v. Louisiana", 379 U.S. 64 (1964), the Supreme Court held that even when a speaker or writer was motivated by hatred or ill will his expression was protected by the First Amendment::"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.

Thus, while such a bad motive might be deemed controlling for purposes of tort liability in other areas of the law, the Court held that the First Amendment prohibited such a result in the area of public debate about public figures. If it was it to hold otherwise, there could be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject.

Barnes v Glen Theatre, Inc. 501 U.S. 560 (1991)

The issue was whether Indiana's public indecency law prohibiting total nudity in public places violated the First Amendment. Chief Justice Rehnquist said that the law was clearly within the State's constitutional power because it furthered a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflected moral disapproval of people appearing in the nude among strangers in public places, and this particular law followed a line of State laws, dating back to 1831, banning public nudity. The States' traditional police power was defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation [501 U.S. 560, 561] had been upheld, e.g. "Paris Adult Theatre I v. Slaton", 413 U.S. 49, 61. This governmental interest was unrelated to the suppression of free expression, since public nudity was the evil the State sought to prevent, whether or not it was combined with expressive activity. The law did not proscribe nudity in these establishments because the dancers were conveying an erotic message. To the contrary, an erotic performance could be presented without any state interference, so long as the performers wore a scant amount of clothing. Justice Scalia upheld the law in that moral opposition to nudity provided a rational basis for prohibiting nude dancing. While Justice Souter said that the State's interest was unrelated to the suppression of free expression, since the pernicious effects were merely associated with nude dancing establishments and were not the result of the expression inherent in nude dancing. Indeed, the law required little when measured against the dancer's remaining capacity and opportunity to express an erotic message.

=Jacobson v United States 503 U.S. 540 (1992)=

The issue was the extent to which the Government may solicit or entrap the commission of an offense. Jacobson was not simply offered the opportunity to order pornography, after which he promptly availed himself of that opportunity. He was the target of 26 months of repeated Government mailings and communications. Justice White said that there was no dispute about the evils of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. See generally "Osborne v. Ohio", 495 U.S. 103, 110 (1990); "New York v. Ferber", 458 U.S. 747, 759 -760 (1982). Likewise, there could be no dispute that the Government may use undercover agents to enforce the law. "It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." "Sorrells v. United States", 287 U.S. 435, 441 (1932). But "Sorrells" (at 442) clarified that, in their zeal to enforce the law, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. If the defense of entrapment is at issue, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but, for whatever reason, the law's prohibitions are matters of consequence. The fact that the Petitioner gave ready support to organizations claiming to oppose censorship cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime of receiving child pornography through the mails.

Reno, Attorney General of the United States "et al" v American Civil Liberties Union "et al" No. 96-511. Argued March 19, 1997. Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet. Title 47 U. S. C. A. §223(a)(1)(B)(ii) (Supp. 1997) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin [g] " sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses are provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d). Justice Stevens accepted the legitimacy and importance of the congressional goal of protecting children from harmful materials, but held that the statute abridged "the freedom of speech" protected by the First Amendment. The CDA differed from the previous laws in that it did not allow parents to consent to their children's use of restricted materials; was not limited to commercial transactions; failed to provide any definition of "indecent" and omitted any requirement that "patently offensive" material lack socially redeeming value; neither limited its broad categorical prohibitions to particular times nor based them on an evaluation by an agency familiar with the Internet's unique characteristics; was punitive; applied to a medium that, unlike radio, receives full First Amendment protection; and could be properly analyzed as a form of time, place, and manner regulation because it was a content-based blanket restriction on speech. Although the Government had an interest in protecting children from potentially harmful materials, the CDA pursued that interest by suppressing a large amount of speech that adults had a constitutional right to send and receive. Its breadth was wholly unprecedented would be an unacceptable burden on adult speech if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes.

Lawrence et al v Texas No. 02-102. Argued March 26, 2003. Decided June 26, 2003

The issue was whether Texas Penal Code Ann. §21.06(a) (2003) forbidding two persons of the same sex to engage in certain intimate sexual conduct violated the Due Process Clause of the Fourteenth Amendment. Justice Kennedy said that "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." He noted that it was not until the 1970s that any State singled out same-sex relations for criminal prosecution, and only nine States did so. For centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not, however, address the issue which is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." "Planned Parenthood of Southeastern Pa. v. Casey", 505 U. S. 833, 850 (1992). The "Casey" decision confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.