A cleaner version, with notes and all, is available at:
http://works.bepress.com/john_brigham/doctype.html
Saturday, May 3, 2008
Thursday, May 1, 2008
Sex in Context
Sex in Context:
The Constitution and Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
The Constitution and Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
The Supreme Court and the Closet
“The Rest of the Closet?”
John Brigham
February 13, 2004
For volume on Lawrence v. Texas, Harry Hirsch, editor.
This chapter is about the Supreme Court learning what it means to be gay. This happened between the Court’s rulings on the Georgia sodomy law in Bowers v. Hardwick and the Texas law in Lawrence. Oral argument is placed at the center of this process, particularly the work of Paul M. Smith who argued against the constitutionality of the Texas law. Attorney Smith, described as openly gay, was a law clerk to Supreme Court Justice Lewis Powell in 1980-81. Powell’s reassessment of his vote to uphold the Georgia law in Bowers laid the foundation for the way Lawrence was handled. I will examine the significance of the Court’s public embrace of Smith’s sexual orientation against the backdrop of denial and homophobia that was Bowers.
On December 4, 2002, a few days after the Supreme Court decided to hear the gay rights of Lawrence v. Texas and affirmative action cases from Michigan that would define the Court’s 2002-2003 term, Linda Greenhouse of The New York Times speculated, in print, on the impact that a justice’s personal life has on his opinions. In particular she focused on Justice Lewis F. Powell, Jr. and his lack of experience with gays, or, in the words of the Lawrence argument, persons who have intimate same-sex relationships. This acknowledged lack of familiarity was prescient, prophetic, and, because it was The Times, perhaps determinative. It was also about intimacy and intimate in its own way. Ultimately, the case of Lawrence v. Texas would be argued by Paul M. Smith, an experienced appellate advocate who has made a point of being openly gay and who is a former clerk to Justice Powell.
As it turned out, in the opinion there is a noticeable shift in the Court’s sensitivity to homosexuality. This leads some to speculate that in the period since Bowers the Supreme Court had been transformed and that the familiarity is institutional. It was now comfortable with -- some would even say sensitive to -- the gay community. This chapter examines the institutional dimensions of what seems like a sort of institutional gaydar.
The Court and the Closet
Ms. Greenhouse told her readers, with the gay rights cases of Bowers v. Hardwick and Lawrence v. Texas in mind, that we should draw “lessons on how life informs” opinions from recent history, particularly the life history of Justice Powell (Greenhouse, 2002). This was an uncompromising reflection on judicial motivation from The Times’ senior reporter at the Court. But, it also left a bit to the imagination with regard to its own motivation and what it was suggesting.
The piece was a thoughtful article that incorporated commentary from recent scholarship on the Court and its members. It reflected upon the enduring question of how free the justices can be from their bodies. The article also played on the lore of the institution. This included the robing closet that sits just behind the courtroom where oral arguments are held. The closet is the place where the justices have traditionally shaken each other by the hand before going into public to hear arguments on the great constitutional issues of the day. It is the closet that they come out of when they part the purple curtain and take their seats behind the bench in the courtroom.
Between Bowers and Lawrence, scholars Joyce Murdoch and Deb Price published an important book. Their Courting Justice chronicles the relationship between the Court and the gay community as an increasingly open engagement. Their story begins in what they call the “hyper-closeted days” of the 50s and traces the interaction of the gay and lesbian community with the Court, a place they say “eventually” comes to terms with the forces that blow through American society. They trace the homosexual cases from Justice Frank Murphy’s tortured relationships with women and Tom Clark’s tortured handling of Rosenberg v. Fleuti in 1963 to Bowers, Boy Scouts v. Dale and Romer v. Evans. They make it almost to Lawrence, as it turns out. The authors have the Court reacting to the growing legitimacy of legal claims brought by the gay and lesbian community. These legal scholars get into the institutional life of the Court as they report on 22 homosexual former Supreme Court clerks, 18 gay men and four lesbians.
Rethinking Bowers
In The New York Times, Greenhouse was addressing, specifically, how Justice Lewis Powell had dealt with the issue of same-sex intimacy himself after participating in the decision in Bowers v. Hardwick. Powell came to the Court in 19 and he participated in more that two dozen homosexual cases by the time the justices considered Bowers. He retired from the Court at the end of the 1986-87 Term, a few days after participating in the gay Olympics decision.
According to biographer and former clerk, John C. Jeffries, Jr., Powell had remarked that he had never known a homosexual. Greenhouse has him saying, “I don’t believe I’ve ever met a homosexual,” Justice Powell told one of his clerks while the Bowers case was pending before the Court. The clerk, who was gay, replied “Certainly you have, but you just don’t know that they are.”
A few years later, on October 18, 1990, in the question period following the James Madison Lecture at New York University Law School which took place after he had retired, Powell had famously commented to the effect that he had made a mistake in that case. Asked about reconciling his Bowers and his Roe opinions he said about Bowers “I think I probably made a mistake on that one.” Jefferies reports that Lawrence Tribe tried to get Powell to put it in writing but the Justice declined.
Murdoch and Price’s Courting Justice came out a decade later and the impact mentioned above was part of the politics of transformation that led to this extraordinary book. Like Bob Woodward and Scott Armstrong’s The Brethren and Edward Lazarus’ Closed Chambers before it, the book is full of insider information drawn from interviews with clerks to the Supreme Court’s justices. And like books such as David Garrow’s Liberty and Sexuality, Courting Justice is attentive to the interplay of personal relations, political interests and legal thought that leads to the development of constitutional doctrine.
Addressing the matter of Justice Powell’s contact with the gay community, Murdoch and Price state that in each of six consecutive terms in the 1980s one of Justice Powell’s four law clerks was gay. But, they support the notion that he did not acknowledge homosexuality. They describe a situation later in his life when one of his former clerks died of AIDS and they indicate that he would not face the disease and its implications. Jefferies also examines Powell’s understanding of homosexuality. He makes the distinction between Powell knowing homosexuals and acknowledging them to be homosexuals. This is the sort of distinction that is at the heart of the institutions embrace of homosexuality in Lawrence.
What can we say about presenting the experience of being gay, or the human quality of homosexuality, to the Supreme Court (and about how the Court responds)? Necessarily the institution becomes the context rather than the individual justice. The analytic issue becomes how Justices, clerks, secretaries and institutional hangers on convey the message of gayness. It becomes a matter, in this sense, of how the Court comes in contact with the culture. It is a sort of ontology of the closet. Rumors of Justice Frank Murphy’s homosexuality or those that have swirled around the bachelorhood of Justice David Souter do not constitute the orientation of the Court. That is a matter of institutional action.
Murdoch and Price’s reporting is framed by institutional analysis. Much of the discussion calls attention to individual predispositions in a fashion similar to that suggested by Greenhouse. For instance, Courting Justice has an extensive discussion of Justice Tom Clark’s treatment of homosexuality in Boutilier v. INS, where he wrote the majority opinion. This was a 1966 case that considered the constitutionality of a federal statute that barred homosexuals from admission to the United States. Clark coined the phrase “afflicted with homosexuality” to uphold the statute. Murdoch and Price draw on interviews with Clark’s children, including former Attorney General Ramsey Clark, to demonstrate that personally Tom Clark was aware of homosexuality and supportive of a much loved nephew who was gay.
The buzz around Paul M. Smith was significant by the time he stood up before the bench in 2003. But when we say or others have said that the gayness of attorney Paul Smith reached the Justices we start with the fact that the Court, as an institution, knew Paul Smith.
Smith graduated from Amherst College in 1976 and received his JD from Yale in 1979. Smith was a clerk for James L. Oakes of the Second Circuit whose clerkships in cozy Brattleboro, Vermont were known as an entrée to the Supreme Court. They are also famously communal in the relationships established between the clerks and Judge Oakes and his family. Smith was a clerk at the Supreme Court for the 1980-81 Term, five years before Bowers so it’s pretty clear that Smith was not out to Justice Powell, who he served, but who said even years after that he had not met a gay person.
As an openly gay lawyer he came out at some point after he left the Court and came back to argue the case as a gay man. He was described at a Stonewall Bar dinner as an “openly gay partner” at Jenner and Block.
For “the Court” or even a few of the Justices to know the advocate is certainly an asset in any oral argument before the Supreme Court. Familiarity is what gives celebrity its buzz and movie stars their cache. In the case of the Court the unknown attorney presenting before the bench is not without precedent. In many cases, the prestige of an appearance before the Court pushes attorneys to accept the assignment when others are more experienced. The results are mixed with the Justices often complaining about the quality of advocacy. Yet, Sarah Weddington, who argued Roe, was unknown and quite young when she stood before the bench. She famously held on to the job when others would eagerly have bumped her for the prestigious assignment.
Oral Argument
Oral argument, though often of interest to the public, has not been a focus of much scholarly attention because, in general, the arguments have not been readily available and they are not part of the formal, official record of the cases. There are exceptions. David O’Brien quotes Chief Justice Hughes and Justice Brennan on how much argument meant to them. He mentions that arguments come at a crucial time and “focus the minds of the justices and present the possibility for fresh perspectives on a case.” He also says that arguments were more important in the 19th century when they were more extensive and the amount of printed submission was quite a bit less voluminous. I have examined the institutional practices that constitute what I called “the Cult of the Court,” and discussed the unique public phenomenon of oral argument. Later, in 1994, after legal historian Peter Irons had made materials on many of the greatest Supreme Court arguments available, in spite of the preferences of the Court, social science scholars did a panel on oral argument at the Political Science Meeting in New York City in which we discussed ethnographic considerations.
At the very formal and outwardly staid Supreme Court, the justices engage in behavior during oral argument that, in most contexts, would simply seem rude. Attorneys making the most important appearances of their career are routinely and mercilessly interrupted as they “argue” their side in the dispute. Attorneys before the Court are well aware of the tradition although some seem inadequately prepared. The attorneys must shift focus and build on interests expressed by the justices in brief but pithy exchanges. This makes the experience not only intense because of its magnitude but tricky because of the spontaneity involved. This rewards experienced practitioners and the best make a great deal of money for their few minutes before the bench. Indeed, as I argued in The Cult of the Court, “practices like oral argument… determine more than who wins and who loses. They affect the substance and the quality of the Court’s work, and …what we take to be the law.”
Court arguments are spontaneous and interactive. I think of them as improvisations. The arguments are sometimes funny and often engaging. There is always an element of theater. But, this is a theater of law and the drama is a function of the stakes and the setting. It is not dramatic in the sense of a Broadway play and the relationship between the Justices and the audience seems to be entirely different. The humor is sometimes intentional but often arises from mistakes. The spontaneity is a function of the practice of proceeding more like a seminar than a lecture. This is important to those who wish the law to be rooted in academic practice or at least to those for whom academic practice is related to inquiry and intelligence. It is also interesting because this somewhat arcane discursive practice has a bearing on the issue of broadcasting these arguments.
The argument in Bowers was examined carefully by Jefferies. He felt that Bowers might have been a replay of Bakke with Justice Powell playing a pivotal role, except that he joined the majority. This was a move by Powell that Jefferies calls “the greatest mystery of his career.”
There is considerable debate currently as to whether oral arguments should be televised. The full blown visual performance is not available because the justices have not wanted it to be. My analysis of the performance of oral argument suggests that it shouldn’t be televised. However, with available technology and access, you can hear the justices talking about law during arguments. The qualities of law as a linguistic activity are more precisely and unmitigatedly evident during oral argument than they are in the written opinions. Argument serves today the way the presentation of opinion in open court did years ago. It links the justices to the ideas and concepts of the law. There is an element of performance but, unlike in the theater, the justices are not directly appealing to the audience in the room. The audience appears to be the other justices and the attorneys as in a conversation. This is why it makes such little sense to televise the proceedings.
In thinking about televising the proceeding and why the Court resists, the distinctive character of this activity deserves note. Like athletics, where the outcome is not known prior to playing the game and like “talk” shows where unscripted things are meant to happen, argument before the Court takes form as improvisation. There is a tradition at the Court closely related to that of improvisational theater. The huge difference is that the audience, in the traditional sense, has relatively little influence on the proceedings and huge significance for future events. Argument is more like a rehearsal or even a script conference. Some of the commentary that is to follow will address how the Court improvises with reference to the nature of debate on the Constitution and the implications for more media attention to this part of the governing process.
The oral argument in Lawrence took place March 26, 2003. Paul M. Smith argued for the petitioners and Charles A. Rosenthal for Texas. The selections that follow are chosen with an eye to the issue of coming out to the Court, of representing sexual orientation to the Justices so that they might know someone who is gay.
For John G. Lawrence: Paul M. Smith
MR. SMITH: The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right.
In one sense, the subtlety of Smith’s use of terms relating to sex, particularly who is doing it, is significant for what he presents to the Justices who might be expected to discuss them with some awkwardness. Justice Scalia, on the other hand just weighs in, showing a zest for the delicate give and take.
JUSTICE ANTONIN SCALIA: So the same-sex/other-sex aspect doesn’t come into it…
MR. SMITH: I think it does come into it, because if you are going to suggest that the state of the law on the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.
In dealing with Justice Scalia there is evidence of the tradition that the argument is focused at the center of the Court. That framework taken in the context of the issue here suggests that Smith might be less interested in coming out to Justice Scalia though sometimes to be subject to his assaults can win favor in other corners, as when Justice Ginsburg follows the above exchange with a much more supportive intervention of her own.
Of course, in most places in the argument, Attorney Smith is not representing gayness. He is demonstrating legal expertise. He is very good at putting a social and political discussion into the language of constitutional rights, but this is the point about how the institution confronts homosexuality in the context of oral argument and the institutional engagement for which it is the centerpiece. For instance, early in the argument Smith had this exchange.
JUSTICE ANTONIN SCALIA: these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot? Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?
MR. SMITH: First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not — and it does not — go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where you have a statute that said, we’re going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, we’re merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified.
And this court at many times said a merely disapproval of one group of people, whether it be the hippy communes in Moreno or the mentally retarded in Cleburne, or indeed gay people….
It is a bit unusual for Justice Scalia to listen this patiently once he has engaged with an attorney on a point of law. Scalia represents the old view of homosexuality and what turns out to be the Court’s view is dependent on how much or how little he influences his colleagues.
JUSTICE SCALIA: A justification is the same that's alluded to here, disapproval of homosexuality.
MR. SMITH: Well, I think it would be highly problematic, such a custody case.
JUSTICE SCALIA: Yes, it would?
MR. SMITH: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school. . . .
Smith’s expertise in privacy law and the ways of the Supreme Court seem to have overshadowed his representativeness. He also argued the important case pitting the American Library Association against federal law requiring access to the internet be filtered in Libraries that received federal funds. The following term, in the fall of 2003, Smith argued the political gerrymandering case, Vieth v. Jubelier, which is likely to be one of the years most important.
In April, a few weeks after the argument, Pennsylvania Republican Senator Rick Santorum compared homosexuality to incest, bigamy and adultery, saying “If you have a right to homosexual sex in your home…you have a right to anything.” The comments have become known more for the outrage they produced than the credibility or stature of Santorum’s position. His comment, “I have no problem with homosexuality. I have a problem with homosexual acts,” in particular, suggested some confusion in this Republican leader about the nature of homosexuality.
The controversy does, however, speak to the characteristic relationship and sometimes tension between the personal and the institutional. A powerful example came up in the context of the Massachusetts legislature’s debate over how to respond to the states Supreme Court ruling that homosexuals must be given the opportunity to be married. During the debate the week of February 9-13, 2004, Representative Shaun P. Kelly attempted to draw his colleagues to his side by personalizing the discussion. Beginning with “Liz, this is for you,” he invoked his colleague Elizabeth Malia who had spoken of the challenges she would face as a lesbian if her partner of 30 years were to die.
Conclusion
In this collection, others will comment on the decision handed down on sodomy and privacy at the end of June 2003 but the tone much spoken about in Justice Kennedy’s majority opinion reflects the sort of change in the Court’s position that might well be attributed to sensitivities developed in the Court and personified in the evolution of Justice Powell’s thinking, an evolution reflected in the out of body collective expression that is a ruling of the Court written, in this case, by Justice Kennedy.
Bibliography
Greenhouse, Linda “Black Robes Don’t Make the Justice, but the Rest of the Closet Just Might,” NYT 12/4/2002 A23.
Jeffries, John C. Jr. Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994).
Levi, Jennifer “The Court and Civil Rights: Strange Classmates, Stranger Bedfellows,” Supreme Court Review Conference, October 18, 2003, Western New England College of Law, Springfield, Massachusetts.
Murdoch, Joyce and Deb Price, Courting Justice (Basic Books, 2001).
Supreme Court, Oral Argument Transcripts, http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.
Thomas, Kendall "Beyond the Privacy Principle," Columbia Law Review 92 (October 1992): 1431-1515.
John Brigham
February 13, 2004
For volume on Lawrence v. Texas, Harry Hirsch, editor.
This chapter is about the Supreme Court learning what it means to be gay. This happened between the Court’s rulings on the Georgia sodomy law in Bowers v. Hardwick and the Texas law in Lawrence. Oral argument is placed at the center of this process, particularly the work of Paul M. Smith who argued against the constitutionality of the Texas law. Attorney Smith, described as openly gay, was a law clerk to Supreme Court Justice Lewis Powell in 1980-81. Powell’s reassessment of his vote to uphold the Georgia law in Bowers laid the foundation for the way Lawrence was handled. I will examine the significance of the Court’s public embrace of Smith’s sexual orientation against the backdrop of denial and homophobia that was Bowers.
On December 4, 2002, a few days after the Supreme Court decided to hear the gay rights of Lawrence v. Texas and affirmative action cases from Michigan that would define the Court’s 2002-2003 term, Linda Greenhouse of The New York Times speculated, in print, on the impact that a justice’s personal life has on his opinions. In particular she focused on Justice Lewis F. Powell, Jr. and his lack of experience with gays, or, in the words of the Lawrence argument, persons who have intimate same-sex relationships. This acknowledged lack of familiarity was prescient, prophetic, and, because it was The Times, perhaps determinative. It was also about intimacy and intimate in its own way. Ultimately, the case of Lawrence v. Texas would be argued by Paul M. Smith, an experienced appellate advocate who has made a point of being openly gay and who is a former clerk to Justice Powell.
As it turned out, in the opinion there is a noticeable shift in the Court’s sensitivity to homosexuality. This leads some to speculate that in the period since Bowers the Supreme Court had been transformed and that the familiarity is institutional. It was now comfortable with -- some would even say sensitive to -- the gay community. This chapter examines the institutional dimensions of what seems like a sort of institutional gaydar.
The Court and the Closet
Ms. Greenhouse told her readers, with the gay rights cases of Bowers v. Hardwick and Lawrence v. Texas in mind, that we should draw “lessons on how life informs” opinions from recent history, particularly the life history of Justice Powell (Greenhouse, 2002). This was an uncompromising reflection on judicial motivation from The Times’ senior reporter at the Court. But, it also left a bit to the imagination with regard to its own motivation and what it was suggesting.
The piece was a thoughtful article that incorporated commentary from recent scholarship on the Court and its members. It reflected upon the enduring question of how free the justices can be from their bodies. The article also played on the lore of the institution. This included the robing closet that sits just behind the courtroom where oral arguments are held. The closet is the place where the justices have traditionally shaken each other by the hand before going into public to hear arguments on the great constitutional issues of the day. It is the closet that they come out of when they part the purple curtain and take their seats behind the bench in the courtroom.
Between Bowers and Lawrence, scholars Joyce Murdoch and Deb Price published an important book. Their Courting Justice chronicles the relationship between the Court and the gay community as an increasingly open engagement. Their story begins in what they call the “hyper-closeted days” of the 50s and traces the interaction of the gay and lesbian community with the Court, a place they say “eventually” comes to terms with the forces that blow through American society. They trace the homosexual cases from Justice Frank Murphy’s tortured relationships with women and Tom Clark’s tortured handling of Rosenberg v. Fleuti in 1963 to Bowers, Boy Scouts v. Dale and Romer v. Evans. They make it almost to Lawrence, as it turns out. The authors have the Court reacting to the growing legitimacy of legal claims brought by the gay and lesbian community. These legal scholars get into the institutional life of the Court as they report on 22 homosexual former Supreme Court clerks, 18 gay men and four lesbians.
Rethinking Bowers
In The New York Times, Greenhouse was addressing, specifically, how Justice Lewis Powell had dealt with the issue of same-sex intimacy himself after participating in the decision in Bowers v. Hardwick. Powell came to the Court in 19 and he participated in more that two dozen homosexual cases by the time the justices considered Bowers. He retired from the Court at the end of the 1986-87 Term, a few days after participating in the gay Olympics decision.
According to biographer and former clerk, John C. Jeffries, Jr., Powell had remarked that he had never known a homosexual. Greenhouse has him saying, “I don’t believe I’ve ever met a homosexual,” Justice Powell told one of his clerks while the Bowers case was pending before the Court. The clerk, who was gay, replied “Certainly you have, but you just don’t know that they are.”
A few years later, on October 18, 1990, in the question period following the James Madison Lecture at New York University Law School which took place after he had retired, Powell had famously commented to the effect that he had made a mistake in that case. Asked about reconciling his Bowers and his Roe opinions he said about Bowers “I think I probably made a mistake on that one.” Jefferies reports that Lawrence Tribe tried to get Powell to put it in writing but the Justice declined.
Murdoch and Price’s Courting Justice came out a decade later and the impact mentioned above was part of the politics of transformation that led to this extraordinary book. Like Bob Woodward and Scott Armstrong’s The Brethren and Edward Lazarus’ Closed Chambers before it, the book is full of insider information drawn from interviews with clerks to the Supreme Court’s justices. And like books such as David Garrow’s Liberty and Sexuality, Courting Justice is attentive to the interplay of personal relations, political interests and legal thought that leads to the development of constitutional doctrine.
Addressing the matter of Justice Powell’s contact with the gay community, Murdoch and Price state that in each of six consecutive terms in the 1980s one of Justice Powell’s four law clerks was gay. But, they support the notion that he did not acknowledge homosexuality. They describe a situation later in his life when one of his former clerks died of AIDS and they indicate that he would not face the disease and its implications. Jefferies also examines Powell’s understanding of homosexuality. He makes the distinction between Powell knowing homosexuals and acknowledging them to be homosexuals. This is the sort of distinction that is at the heart of the institutions embrace of homosexuality in Lawrence.
What can we say about presenting the experience of being gay, or the human quality of homosexuality, to the Supreme Court (and about how the Court responds)? Necessarily the institution becomes the context rather than the individual justice. The analytic issue becomes how Justices, clerks, secretaries and institutional hangers on convey the message of gayness. It becomes a matter, in this sense, of how the Court comes in contact with the culture. It is a sort of ontology of the closet. Rumors of Justice Frank Murphy’s homosexuality or those that have swirled around the bachelorhood of Justice David Souter do not constitute the orientation of the Court. That is a matter of institutional action.
Murdoch and Price’s reporting is framed by institutional analysis. Much of the discussion calls attention to individual predispositions in a fashion similar to that suggested by Greenhouse. For instance, Courting Justice has an extensive discussion of Justice Tom Clark’s treatment of homosexuality in Boutilier v. INS, where he wrote the majority opinion. This was a 1966 case that considered the constitutionality of a federal statute that barred homosexuals from admission to the United States. Clark coined the phrase “afflicted with homosexuality” to uphold the statute. Murdoch and Price draw on interviews with Clark’s children, including former Attorney General Ramsey Clark, to demonstrate that personally Tom Clark was aware of homosexuality and supportive of a much loved nephew who was gay.
The buzz around Paul M. Smith was significant by the time he stood up before the bench in 2003. But when we say or others have said that the gayness of attorney Paul Smith reached the Justices we start with the fact that the Court, as an institution, knew Paul Smith.
Smith graduated from Amherst College in 1976 and received his JD from Yale in 1979. Smith was a clerk for James L. Oakes of the Second Circuit whose clerkships in cozy Brattleboro, Vermont were known as an entrée to the Supreme Court. They are also famously communal in the relationships established between the clerks and Judge Oakes and his family. Smith was a clerk at the Supreme Court for the 1980-81 Term, five years before Bowers so it’s pretty clear that Smith was not out to Justice Powell, who he served, but who said even years after that he had not met a gay person.
As an openly gay lawyer he came out at some point after he left the Court and came back to argue the case as a gay man. He was described at a Stonewall Bar dinner as an “openly gay partner” at Jenner and Block.
For “the Court” or even a few of the Justices to know the advocate is certainly an asset in any oral argument before the Supreme Court. Familiarity is what gives celebrity its buzz and movie stars their cache. In the case of the Court the unknown attorney presenting before the bench is not without precedent. In many cases, the prestige of an appearance before the Court pushes attorneys to accept the assignment when others are more experienced. The results are mixed with the Justices often complaining about the quality of advocacy. Yet, Sarah Weddington, who argued Roe, was unknown and quite young when she stood before the bench. She famously held on to the job when others would eagerly have bumped her for the prestigious assignment.
Oral Argument
Oral argument, though often of interest to the public, has not been a focus of much scholarly attention because, in general, the arguments have not been readily available and they are not part of the formal, official record of the cases. There are exceptions. David O’Brien quotes Chief Justice Hughes and Justice Brennan on how much argument meant to them. He mentions that arguments come at a crucial time and “focus the minds of the justices and present the possibility for fresh perspectives on a case.” He also says that arguments were more important in the 19th century when they were more extensive and the amount of printed submission was quite a bit less voluminous. I have examined the institutional practices that constitute what I called “the Cult of the Court,” and discussed the unique public phenomenon of oral argument. Later, in 1994, after legal historian Peter Irons had made materials on many of the greatest Supreme Court arguments available, in spite of the preferences of the Court, social science scholars did a panel on oral argument at the Political Science Meeting in New York City in which we discussed ethnographic considerations.
At the very formal and outwardly staid Supreme Court, the justices engage in behavior during oral argument that, in most contexts, would simply seem rude. Attorneys making the most important appearances of their career are routinely and mercilessly interrupted as they “argue” their side in the dispute. Attorneys before the Court are well aware of the tradition although some seem inadequately prepared. The attorneys must shift focus and build on interests expressed by the justices in brief but pithy exchanges. This makes the experience not only intense because of its magnitude but tricky because of the spontaneity involved. This rewards experienced practitioners and the best make a great deal of money for their few minutes before the bench. Indeed, as I argued in The Cult of the Court, “practices like oral argument… determine more than who wins and who loses. They affect the substance and the quality of the Court’s work, and …what we take to be the law.”
Court arguments are spontaneous and interactive. I think of them as improvisations. The arguments are sometimes funny and often engaging. There is always an element of theater. But, this is a theater of law and the drama is a function of the stakes and the setting. It is not dramatic in the sense of a Broadway play and the relationship between the Justices and the audience seems to be entirely different. The humor is sometimes intentional but often arises from mistakes. The spontaneity is a function of the practice of proceeding more like a seminar than a lecture. This is important to those who wish the law to be rooted in academic practice or at least to those for whom academic practice is related to inquiry and intelligence. It is also interesting because this somewhat arcane discursive practice has a bearing on the issue of broadcasting these arguments.
The argument in Bowers was examined carefully by Jefferies. He felt that Bowers might have been a replay of Bakke with Justice Powell playing a pivotal role, except that he joined the majority. This was a move by Powell that Jefferies calls “the greatest mystery of his career.”
There is considerable debate currently as to whether oral arguments should be televised. The full blown visual performance is not available because the justices have not wanted it to be. My analysis of the performance of oral argument suggests that it shouldn’t be televised. However, with available technology and access, you can hear the justices talking about law during arguments. The qualities of law as a linguistic activity are more precisely and unmitigatedly evident during oral argument than they are in the written opinions. Argument serves today the way the presentation of opinion in open court did years ago. It links the justices to the ideas and concepts of the law. There is an element of performance but, unlike in the theater, the justices are not directly appealing to the audience in the room. The audience appears to be the other justices and the attorneys as in a conversation. This is why it makes such little sense to televise the proceedings.
In thinking about televising the proceeding and why the Court resists, the distinctive character of this activity deserves note. Like athletics, where the outcome is not known prior to playing the game and like “talk” shows where unscripted things are meant to happen, argument before the Court takes form as improvisation. There is a tradition at the Court closely related to that of improvisational theater. The huge difference is that the audience, in the traditional sense, has relatively little influence on the proceedings and huge significance for future events. Argument is more like a rehearsal or even a script conference. Some of the commentary that is to follow will address how the Court improvises with reference to the nature of debate on the Constitution and the implications for more media attention to this part of the governing process.
The oral argument in Lawrence took place March 26, 2003. Paul M. Smith argued for the petitioners and Charles A. Rosenthal for Texas. The selections that follow are chosen with an eye to the issue of coming out to the Court, of representing sexual orientation to the Justices so that they might know someone who is gay.
For John G. Lawrence: Paul M. Smith
MR. SMITH: The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right.
In one sense, the subtlety of Smith’s use of terms relating to sex, particularly who is doing it, is significant for what he presents to the Justices who might be expected to discuss them with some awkwardness. Justice Scalia, on the other hand just weighs in, showing a zest for the delicate give and take.
JUSTICE ANTONIN SCALIA: So the same-sex/other-sex aspect doesn’t come into it…
MR. SMITH: I think it does come into it, because if you are going to suggest that the state of the law on the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.
In dealing with Justice Scalia there is evidence of the tradition that the argument is focused at the center of the Court. That framework taken in the context of the issue here suggests that Smith might be less interested in coming out to Justice Scalia though sometimes to be subject to his assaults can win favor in other corners, as when Justice Ginsburg follows the above exchange with a much more supportive intervention of her own.
Of course, in most places in the argument, Attorney Smith is not representing gayness. He is demonstrating legal expertise. He is very good at putting a social and political discussion into the language of constitutional rights, but this is the point about how the institution confronts homosexuality in the context of oral argument and the institutional engagement for which it is the centerpiece. For instance, early in the argument Smith had this exchange.
JUSTICE ANTONIN SCALIA: these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot? Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?
MR. SMITH: First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not — and it does not — go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where you have a statute that said, we’re going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, we’re merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified.
And this court at many times said a merely disapproval of one group of people, whether it be the hippy communes in Moreno or the mentally retarded in Cleburne, or indeed gay people….
It is a bit unusual for Justice Scalia to listen this patiently once he has engaged with an attorney on a point of law. Scalia represents the old view of homosexuality and what turns out to be the Court’s view is dependent on how much or how little he influences his colleagues.
JUSTICE SCALIA: A justification is the same that's alluded to here, disapproval of homosexuality.
MR. SMITH: Well, I think it would be highly problematic, such a custody case.
JUSTICE SCALIA: Yes, it would?
MR. SMITH: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school. . . .
Smith’s expertise in privacy law and the ways of the Supreme Court seem to have overshadowed his representativeness. He also argued the important case pitting the American Library Association against federal law requiring access to the internet be filtered in Libraries that received federal funds. The following term, in the fall of 2003, Smith argued the political gerrymandering case, Vieth v. Jubelier, which is likely to be one of the years most important.
In April, a few weeks after the argument, Pennsylvania Republican Senator Rick Santorum compared homosexuality to incest, bigamy and adultery, saying “If you have a right to homosexual sex in your home…you have a right to anything.” The comments have become known more for the outrage they produced than the credibility or stature of Santorum’s position. His comment, “I have no problem with homosexuality. I have a problem with homosexual acts,” in particular, suggested some confusion in this Republican leader about the nature of homosexuality.
The controversy does, however, speak to the characteristic relationship and sometimes tension between the personal and the institutional. A powerful example came up in the context of the Massachusetts legislature’s debate over how to respond to the states Supreme Court ruling that homosexuals must be given the opportunity to be married. During the debate the week of February 9-13, 2004, Representative Shaun P. Kelly attempted to draw his colleagues to his side by personalizing the discussion. Beginning with “Liz, this is for you,” he invoked his colleague Elizabeth Malia who had spoken of the challenges she would face as a lesbian if her partner of 30 years were to die.
Conclusion
In this collection, others will comment on the decision handed down on sodomy and privacy at the end of June 2003 but the tone much spoken about in Justice Kennedy’s majority opinion reflects the sort of change in the Court’s position that might well be attributed to sensitivities developed in the Court and personified in the evolution of Justice Powell’s thinking, an evolution reflected in the out of body collective expression that is a ruling of the Court written, in this case, by Justice Kennedy.
Bibliography
Greenhouse, Linda “Black Robes Don’t Make the Justice, but the Rest of the Closet Just Might,” NYT 12/4/2002 A23.
Jeffries, John C. Jr. Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994).
Levi, Jennifer “The Court and Civil Rights: Strange Classmates, Stranger Bedfellows,” Supreme Court Review Conference, October 18, 2003, Western New England College of Law, Springfield, Massachusetts.
Murdoch, Joyce and Deb Price, Courting Justice (Basic Books, 2001).
Supreme Court, Oral Argument Transcripts, http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.
Thomas, Kendall "Beyond the Privacy Principle," Columbia Law Review 92 (October 1992): 1431-1515.
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