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Free Speech

Free Speech

 Table of Contents

Movie Day

  • Since 1940s, Supreme Court struggled to define clear limits on restrictions of pornography and obscenity under the First Amendment
  • In 1964, Justice Potter Stewart defined obscenity vaguely: "I know it when I see it"

The guys were anxious to get started, but Thurgood was late and the others did not want to start without him. "Perhaps he's getting popcorn," someone suggested. When Thurgood arrived they agreed to start the first film, Vixen. John always sat in the front row. Seventy-four years old and all but blind, he could barely make out the outlines of the naked bodies on the screen. But someone described the action to him. "By Jove," he responded, "extraordinary."52

After Vixen, Lewis had to leave, but the rest of the guys stuck around for a second film, Sexual Freedom in Denmark. But even after the second flick, the younger men were disappointed. The second film had been more of a documentary on sex, and Vixen had been far too tame.

So what was all this about? A bachelor party? A weekend in Vegas? No, this was the annual porno film screening for the justices of the United States Supreme Court. In 1973, Thurgood Marshall, John Marshall Harlan, and Lewis Powell had gathered with the other justices and their clerks to watch some movies in preparation for cases dealing with pornography. In 1964, Justice Potter Stewart had struggled to define pornography, "but I know when I see it," he proclaimed. The other justices realized that they would need to develop a better definition if they were to credibly rule on pornography cases—and so movie day premiered.

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