Summer of SCOTUS 2: Tests, part 1

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. N. Rodgers: Hey, Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm excellent. How are you? J. Aughenbaugh: I'm good, and one of the reasons why I am good is we are continuing our series of summer of SCOTUS. N. Rodgers: Summer of SCOTUS: not the cases. J. Aughenbaugh: Not the cases, hard to do that. Part 2. N. Rodgers: I don't know what Part 1 we're on at this point. I think around Part 2 but they may not come out quite an order ya'll, sorry. J. Aughenbaugh: Yeah. I mean someone that is technical some of it is. N. Rodgers: Post-production. J. Aughenbaugh: Post-production yeah, but some of it is something will happen and we're like but we already have, we've already recorded an episode that talks about X. We just go ahead and drop that. Just make it public. N. Rodgers: Our today's scared of this episode is we are recording at the end of the school year and this is an app time to talk about this. Because what's happening in the schools right now is testing, and If you know anything about the SOL, are you on level for your grade testing, it is nerve wracking for all parties involved, students that are taking a test, parents that have a student taking a test, teachers that are administering the test. Everybody's freaked out and as a university, we've just finished finals, which is another opportunity for people to freak out over a test. J. Aughenbaugh: Yes. N. Rodgers: We decided we would talk about SCOTUS tests. I was thinking about the funny ones, but I noticed that in your notes, you have the serious, these are the bars of test first that we should talk about before we talk about the more. J. Aughenbaugh: The ones with the catchy names. N. Rodgers: The woman with the catchy names and the ones that come from specific cases. J. Aughenbaugh: Cases, yes. N. Rodgers: Because we only have one that comes from a specific case of the bars. When I think of the bars that you have to pass or the levels. J. Aughenbaugh: Yeah, so and for listeners to give you some context, the Supreme Court over time has created various tests or standards as a way to provide guidance to the public, to the government regarding what the Constitution means in practice. N. Rodgers: Especially to the lower courts. A lot of those are handed down to the lower court says, let's not have this be as vague as it and we're going to get to vagueness later. But let's not have this be as random across the courts. We want the courts to decide things more coherently across all the different courts. N. Rodgers: Yeah. N. Rodgers: That some guy in Montana doesn't find a thing one way and some guy way in Carolina doesn't find it a different way. J. Aughenbaugh: Yeah. We don't want a federal district court judge who's conducting a trial to go ahead and say, the Establishment Clause of the First Amendment means X, but a district court judge in North Carolina say no, the Establishment Clause means Y. N. Rodgers: Because that's only going to end up with the SCOTUS? J. Aughenbaugh: Yeah. Eventually, it's going to end up in front of the Supreme Court and the Supreme Court is going to be like, "Are we once again looking at the meaning of the Establishment Clause? Did we work this out before?" N. Rodgers: "Somebody check our notes? Do we have some notes?" J. Aughenbaugh: We're going to get to those clause case specific tests in just a moment. But first, as Nia pointed out, over time the Supreme Court has come up with tests or types of review of government laws and regulations. The most general, the one that's applied to most laws and government regulations is known as the rational basis test. It's a somewhat easy standard to meet, Nia, because basically all the court is asking is did the government body that issued the law or the regulation have some rationality behind the law or the regulation? Doesn't have to be the best one. N. Rodgers: It doesn't have to be the most rational. J. Aughenbaugh: Yes. N. Rodgers: It just has to be a reason for doing something. J. Aughenbaugh: Yes. N. Rodgers: Don't feed the bears. We're putting this law in place because one, when you feed bears people die, and two, when you feed bears, bears get sick because we feed them bad things. You'll have some popcorn bear, so that's the reason. J. Aughenbaugh: Is it the most effective solution to the problems that arise when humans interact with bears? Maybe, maybe not. But it's not the job of the courts to come up with the best solution. N. Rodgers: I see. They just have to say whether there was actually a reason behind the law. J. Aughenbaugh: Behind it. N. Rodgers: Or if you just say, I'm going to make a law that prevents John Aughenbaugh from being feeding bears. Just cause then the court would say, "no, no. You can't permit everybody else and not permit him without a reason." J. Aughenbaugh: Yeah. Again, it doesn't have to be the best one. The assumption of the rational basis test, Nia is, in a democracy, the people's elected representatives have the authority to regulate behavior. It's not the job of the courts. Because the courts, particularly in our federal system, the courts are populated by people not picked by the public. We're talking about a democracy. That's the basic if you will theory or logic behind the rational basis test. By the way, it's a pretty easy standard to meet. N. Rodgers: Yeah. What's your reason. My reason was X. Okay, you're done. J. Aughenbaugh: As we've pointed out in this podcast, because we focused on laws and regulations, most laws and regulations actually start off with a mission or purpose that explains the reason. They're not always clear, but nevertheless. N. Rodgers: That's the lowest level, that's the lowest part to get over. J. Aughenbaugh: Yes. N. Rodgers: It's about three inches off the ground. J. Aughenbaugh: Yeah. Pretty much. N. Rodgers: You're over and you're done. J. Aughenbaugh: Yes N. Rodgers: Okay. J. Aughenbaugh: Now, the next most rigorous review of laws and regulations is known as intermediate scrutiny. Basically, the government has to satisfy two questions. First, does the law or regulation further an important government interest? Second, it must do so in a manner that is substantially related to that interest. N. Rodgers: Okay. Can you give me an example? J. Aughenbaugh: Yes. There is a case from 1976, Craig versus Boren. In Craig verses Boren, the state of Oklahoma passed a law that would raise the drinking age for males from 18-21, but would keep the drinking age for females at 18. N. Rodgers: That's a terrible idea. J. Aughenbaugh: The logic of the state of Oklahoma was they had some statistical evidence that demonstrated the young males were more likely to drink and then get behind the wheel of an automobile and cause accidents and damage to property and harm other people's lives. They treated the genders differently because Oklahoma thought they had evidence to suggest that there was a public policy problem. The case goes to the Supreme Court. Craig challenged the law, Boren was the governor of Oklahoma, so Craig challenges the law. He was a male. Craig argued that this violated the equal protection clause of the 14th Amendment, and the Supreme Court applied intermediate scrutiny to the Oklahoma law. Now what the court said was Oklahoma satisfied the first part of the test, it had a legitimate interests in decreasing the number of DUI related accidents, driving under the influence. But it failed the second prong of the test because they couldn't show that the law was substantially related to that interest, because statistically, young men were less than one-tenth of 1 percent more likely to drink and then get behind the wheel of an automobile. N. Rodgers: It was a tiny that was not going to solve problem? J. Aughenbaugh: Yeah, it was not. The statistical difference suggested that the law was not substantially related. N. Rodgers: Okay. J. Aughenbaugh: Intermediate scrutiny arose, Nia, in the early to mid 1970s. Women's rights advocates brought cases to the Supreme Court where they wanted the court to show to enforce or impose upon gender-based laws, the same scrutiny that race-based laws received, and what the Supreme Court did was basically split the difference. Okay? N. Rodgers: A little bit harder than the rational, but not as hard as [inaudible]. J. Aughenbaugh: The next level of review, which is known as strict scrutiny. N. Rodgers: Can we stop can we pause there for just a moment because I would like to hold forth upon this this law. That law was stupid, because first of all, either raise the drinking age for everybody. I'm with I'm with Craig on the "hey, hey, hey, whoa, whoa, whoa, we can't just punish based on gender." Any woman who says that that's a good idea hasn't really thought that through about what that's going to mean in terms of women's rights. If we want equal treatment before the law, we have to also have equal responsibility before the law. I will say to you that I personally think that women should have to register for the draft. If you're going to draft men, you should draft women, it's my personal opinion. I know there's a thousand reasons why other people were like that's not a good idea. J. Aughenbaugh: But interestingly enough, Nia, the Oklahoma law was not about women. It was based on a stereotype of young men. N. Rodgers: Right. But what it ended up doing was not treating those two equally before the law, and I don't think that's good. J. Aughenbaugh: That's fine, but part of the logic of women's rights groups were to challenge laws in front of the Supreme Court that actually treated men differently, i.e. works, to force the courts to go ahead and reconsider laws that actually treated women differently. N. Rodgers: Right. J. Aughenbaugh: It was a great legal strategy and it was one that many scholars believe was hatched by former Supreme Court Justice Ruth Bader Ginsburg. Because what better way to force in all male Supreme Court to recognize that gender differences written into the law not only harm women, they also harm men. N. Rodgers: Right. J. Aughenbaugh: Oklahoma, stepped right up to the plate and gave them a really good pace. N. Rodgers: Way to think about this. They went, "thank you very much, we will see you at the Supreme Court." J. Aughenbaugh: We will see you at the Supreme Court. N. Rodgers: But I think it was not fair to young men because statistically there's no real point, and two, you're right, it also assumes a whole lot about men and drunk driving, and the whole idea of that women are what drinking flowers who aren't going to drink and drive. I'm like, I know some women who've made that bad choice. J. Aughenbaugh: There's a stereotype about genders in regards to women mature faster. They are less likely to engage in risky, dangerous behavior than men are. That men as a gender, particularly when they are younger are stupid, or more willing to take risks. N. Rodgers: Right. Riskier if nothing else. I don't know if that that's true. J. Aughenbaugh: Don't pay attention to consequences, and then when you have the statistics that show that within the state of Oklahoma, there was a less than 1 tenth of 1 percent. N. Rodgers: Right. Clearly it's not true. Yeah, perfect, I say. I'm would like to say to Oklahoma, I'm giving you saw dive right now. J. Aughenbaugh: The next level of review is the most difficult for the government to satisfy and this is known as strict scrutiny. Most scholars originate the use to Brown versus Board, where the Supreme Court said that school districts using race as a way to divide the placement of schoolchildren was a suspect classification. From that case, the court came up with strict scrutiny where the government has to satisfy two questions. First, does the government have a compelling interests? Second, is the law or regulation or policy narrowly tailored to achieve that interests? This is sometimes referred to as the least restrictive alternative to achieve the compelling interests. N. Rodgers: The difference between that and the mid-level because they both have to have a compelling interests? J. Aughenbaugh: No. Intermediate scrutiny, and important government interests. My compelling just the important one. Both questions are more exacting on the government in strict scrutiny because you have to have a compelling interest, but then the program or law has to be narrowly tailored. Lawyers and scholars now joke that it's strict in theory but fatal, in fact. That anytime the Supreme Court or any court says it's going to use strict scrutiny to review a law, that law is going down. I thin it's going to be deemed unconstitutional. N. Rodgers: Well, and in part that's because laws are written vaguely and broadly to try to cover as many circumstances as possible, which and then the court's like, no, you can't do that. You have to be more specific than. J. Aughenbaugh: Specific because you're using race. N. Rodgers: Is that because race is already so divisive? J. Aughenbaugh: Well, it's divisive, but it also, even for strict constructionists. If you look at the Equal Protection Clause and when it was passed, even strict constructionists will go ahead and say, the framers of the 14th Amendment's Equal Protection Clause wanted to go ahead and protect who? Former slaves, former African Americans who were mistreated. N. Rodgers: Former slaves who were also African-American. J. Aughenbaugh: But again, I'm moving it forward into regard to even strict constructionists are like, race is a problem. Because even the framers of the 14th amendment, that was their purpose, even strict constructionists will go ahead and sign off on that. Now what's fascinating to me is advocates for other groups or other rights have attempted to convince the Supreme Court to adopt strict scrutiny to protect their interest or rights. But they haven't been able to convince the court to do so. For instance, advocates of a woman's right to choose wants strict scrutiny to be used to look at abortion laws, and the Supreme Court has said no. We will get to some of the abortion tests in just a few moments. Free speech advocates, in the 1960s, '70s have advocated that speech deserves strict scrutiny. Supreme Court has said no. Advocates of gun rights, per the Second Amendment. We want strict scrutiny to be imposed on laws and regulations of guns. They haven't been able to convince a majority of the court to use strict scrutiny for anything other than race. N. Rodgers: Why is that? J. Aughenbaugh: Well, again, if you go to the use of strict scrutiny, anytime the court uses strict scrutiny, the likelihood is the law is going to be deemed unconstitutional. I think that gives some members of the court great pause. J. Aughenbaugh: Great pause. N. Rodgers: They're undoing something? J. Aughenbaugh: They're undoing the work of the people's representatives. N. Rodgers: That's a little scary. J. Aughenbaugh: How much do we want unelected members of the federal judiciary to be involved in effect with policy making? N. Rodgers: Right. That's why we have checks and balances, but we don't want anyone's side to be too strong. J. Aughenbaugh: This is a democracy. N. Rodgers: We don't want the courts just really nearly going around saying that's unconstitutional. J. Aughenbaugh: Yes. N. Rodgers: Because that will basically put them in charge of the country. J. Aughenbaugh: Yes, and I understand that some people are like, well, I would prefer that than elected officials. N. Rodgers: Then you've missed the point of democracy. J. Aughenbaugh: Yeah. N. Rodgers: You should move somewhere else where the courts are in charge. J. Aughenbaugh: Okay. That's the general if you will, structure of the tests used with most laws and regulations. The easiest is rational basis, the hardest is strict scrutiny and in-between is intermediate scrutiny. N. Rodgers: I have to tell you that the next test that you have in your notes is my favorite. Can I say it? J. Aughenbaugh: Yeah. Go ahead. N. Rodgers: Void for vagueness. A law so vaguely that a reasonable person does not know what it is or what is not prohibited behavior. I love that. I love that so much as a test. What are you talking about? That's basically what the court is saying. Actually, I don't know if you've ever watched Buffy the Vampire Slayer? J. Aughenbaugh: Yes, I did. N. Rodgers: But she used to say, "could you vague that up for me?" When people would say something so vague, that she was like "could you vague that up for me?" I love that phrase. Because I love this idea that people don't know what the prohibited behavior. They're like, is it legal or is it not legal? If you can't tell by reading the law, then I'm with the court. That's too vague. It needs to be clear. J. Aughenbaugh: Yes, and Nia, this gets at one of the fundamental purposes of law, which is, if laws are supposed to tell people what is or is not acceptable, then it has to be clear enough to where an average person, I'm not talking about a smart person. N. Rodgers: Not a lawyer or a judge. J. Aughenbaugh: Not a lawyer, not a PhD, but just your guard variety average person knows, I'm not supposed to speed on this stretch of highway. N. Rodgers: In a school zone? J. Aughenbaugh: Yeah. N. Rodgers: I'm not supposed to speed in a school zone, you know why? Because I'd run over kids and that's a bad thing. We all agree that's a bad thing. Very few of us and if you are one of those people who would run over kids, don't tell me because that's a terrible thing. But we all agree, that's not a good thing. We don't want to run over kids in schools. We don't want to run over kids anywhere. It's why we obey speed rules in neighborhoods. J. Aughenbaugh: When you are in a school zone and the sign is flashing, you're supposed to slow down. N. Rodgers: Slow down. Right. Very clear but I like your example. J. Aughenbaugh: Here's a recent example. Listeners, this does reflect when we're recording this episode. But the period of time where we're recording this episode as Nia pointed out earlier in the episode, we're talking about late spring. In the United States currently, there is a lot of inflation going on within the economy. Certain members of the United States Congress believe that some of the inflationary prices are due to companies price gouging. They understand that Americans want certain goods and services. The supply of those goods is scarce, so they are raising prices to make even more money. N. Rodgers: A not terribly long ago, and another example is the Texas power outage. J. Aughenbaugh: Yes. N. Rodgers: Where the Texas power companies were charging people, what, 30, $40,000 bills for the month to heat their homes. J. Aughenbaugh: Yes. N. Rodgers: Sorry, let me back up. We here in the South regularly get hurricanes. One of the things that happens after a hurricane is that gas prices go up. J. Aughenbaugh: Yes. N. Rodgers: Deliveries and issues, there's other issues. But there is always this question in the back of your mind about price gouging. Are these being artificially driven up because it's a good time for people to make money off of other people's misery thing? J. Aughenbaugh: There was a proposed law submitted in the US Senate by Senator Elizabeth Warren from Massachusetts. Which attempted to prohibit price gouging by companies during an inflationary period as designated by the federal government. But price gouging was so vaguely worded. Scholars on both sides of the ideological spectrum they actually just like came out and said this on the blog is fear. This is so unconstitutional because nobody would know what constitutes price gouging. N. Rodgers: Price gouging is itself a concept that is pretty subjective. J. Aughenbaugh: Yes. You have to provide a definition. Do you want a whole bunch of companies possibly being prosecuted for behavior that they didn't know was actually price gouging? They may have raised prices because their suppliers did what to them? N. Rodgers: Raised prices. J. Aughenbaugh: Raised prices. N. Rodgers: Right. There's reasons. The other thing about price gouging is if you run your country based on the idea of supply and demand. What is it, the invisible hand of the market. Thank you, Adam Smith. J. Aughenbaugh: Yes. N. Rodgers: Then if a guy has the thing you want and he's the only guy in town that has the thing you want, he could charge whatever he wants to charge for that. J. Aughenbaugh: Economic system. It's a capitalist system. N. Rodgers: That's what capitalism is. You can choose not to buy his thing. That is how you vote against his pricing is, and if enough people choose not to buy he will bring the price down. Because that's again how capitalism works. I think you'd have to be very careful about writing legislation about price gouging. J. Aughenbaugh: In particular, you would have to, I would argue center price gouging on public goods not private goods. Public goods things like you mentioned electricity. N. Rodgers: Yeah, that was a pretty clear case of price gouging. J. Aughenbaugh: Again, Nia you mentioned we live in an area that suffers from hurricanes, right? N. Rodgers: Right. J. Aughenbaugh: We know this that when the National Weather Service predicts that a hurricane's going to hit. J. Aughenbaugh: Stores like Home Depot, Lowe's, other appliance stores, they go hand raised prices for things like plywood. N. Rodgers: Right. J. Aughenbaugh: Okay etc. N. Rodgers: Nails, hammers. J. Aughenbaugh: Nails, hammers because a lot of people tried to board up their homes, their businesses so the damage is not as great. I can even see how price gouging laws might be applicable in that context because we want actually people to protect their homes before a hurricane. Because if they don't, what happens afterwards? N. Rodgers: Insurance prices go up. J. Aughenbaugh: Insurance prices go up. We find out that some people try to write it out in their homes that were protected, and then they were killed, etc. N. Rodgers: Right. J. Aughenbaugh: There are all bunch of public harms. But nevertheless, you need to give a definition of what constitutes price gouging and for what goods and services. If you don't, it would be impossible to prosecute. N. Rodgers: Right. Or you prosecuted for everything and that would be wild prints. J. Aughenbaugh: That's unacceptable. A related concept and sometimes students have a hard time distinguishing the next test with void for vagueness. The next one is overbreadth. When the court says a law is unconstitutionally overbroad, it's basically saying that both constitutionally protected in constitutionally unprotected behavior is against the law. A good example of this is with material that is pornographic versus obscene. Basically what the Supreme Court has said over time is speech that is pornographic is protected by the First Amendment, obscene speech isn't. But the difficulty for the government is how do you write a law that prohibits the latter but allows the former? Because the line between a pornographic and obscene speech is oftentimes a lot like beauty. It's in the eye of the beholder. N. Rodgers: Which one of the justices said, I can't describe pornography to you, but I know when I see it, like there's? J. Aughenbaugh: Justice Potter Stewart in the Jacket Bellows case in the 1960s wrote in an opinion, "I cannot define pornography, but I know when I see it." He was basically making a critique of the Supreme Court's efforts during the 1950s, '60s, and as we will come to talk about in the 1970s, trying to define what is porn versus what is obscenity. Because the government, according to the court, can prohibit obscene speech, but it cannot prohibit pornographic. I still love that quote. Potter Stewart was just a germ on the Supreme Court. In coming up with petty phrases, he went ahead and describe the Connecticut contraception law, which was challenged in the Griswold case Nia, as an uncommonly silly law. N. Rodgers: I like that. Uncommonly silly. That should be another one of our t-shirts. J. Aughenbaugh: Yes. N. Rodgers: Civil discourse, colon, uncommonly silly. J. Aughenbaugh: Silly. Okay. N. Rodgers: That sends the wrong message. J. Aughenbaugh: I just like it when justice is every once in awhile, they strip off the veneer of legal language. N. Rodgers: Right. J. Aughenbaugh: In Latin and they just call things up. N. Rodgers: That is uncommonly silly. J. Aughenbaugh: That is uncommonly silly. I cannot define pornography, I just know it when I see it, which by the way, probably many Americans would be like, I'm right there with you, Justice Stewart. N. Rodgers: Exactly. That is pornographic. How do you know? I just don't know by looking at it. J. Aughenbaugh: That's pornographic and oh, yeah, by the way, that's obscene, and I'm never ever watching or reading that ever again. N. Rodgers: Interesting those two are not based on offensiveness. J. Aughenbaugh: That's correct, yes. N. Rodgers: They're not based on your level of offended goodness. How offended you are is not the deciding factor here. J. Aughenbaugh: No, because now we actually have a test coming from the Supreme Court that was created in a case in 1973. So can we move to more specific tests now, Nia? N. Rodgers: Please. J. Aughenbaugh: We're talking about obscenity, and for listeners you might be wondering, okay, this discussion of pornography and obscenity, how's this touch upon the US Constitution? Well, it touches upon the First Amendment protection of freedom of speech. N. Rodgers: Right. J. Aughenbaugh: The court really struggled in the 1950s and '60s to come up with a test to judge government laws that prohibited obscene speech. Finally, what they came up with was what's known as the Miller test, which was announced by the court in the supreme court case of Miller versus California from 1973. Nia, the Miller test has three parts. Do you want me to share the three parts? N. Rodgers: Yes, please. J. Aughenbaugh: First part, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to period interests. Now for our listeners who might not know what period means, it means lustful. N. Rodgers: Right. Although it means lustful in a negative way. J. Aughenbaugh: Yes. N. Rodgers: Period is not a positive. J. Aughenbaugh: No. N. Rodgers: That is not a positive integer. Now again, naked people, that's not what that's. J. Aughenbaugh: Yeah, no. N. Rodgers: The court is implying a negative interest there. J. Aughenbaugh: Yes. Of course, that part of the test has one of our favorite phrases, the average person. N. Rodgers: Applying contemporary community standards, which in some ways I appreciate the court putting in there recognizing that those may change over time or those may change community to community. I will tell you, that it is unlikely that the Amish community in Ohio would have the same reaction to a piece of pornographic art as the art community enrichment. They're going to have different standards because their community is going to have different standards. J. Aughenbaugh: Yes, very good point. N. Rodgers: Similarly, a naked person in the United States is treated very differently than a naked person in Europe. Because you people in Europe are like yeah, naked, whatever. They are contemporary community standards. J. Aughenbaugh: There are less hung up about nudity than we are here. N. Rodgers: Right. J. Aughenbaugh: Yeah. Second part of the test, whether the work depicts or describes in a patently offensive way sexual conduct or excretory functions specifically defined by applicable state law. In other words, the state has to very clearly say, these behaviors are offensive to our residents. Here's my favorite part. Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. N. Rodgers: I know that. How can I fit this? I am acquainted with me as a little. J. Aughenbaugh: Knee is a little tongue tied here. I have something in our research notes. N. Rodgers: Right. J. Aughenbaugh: She's having a really difficult time. N. Rodgers: I am acquainted with these films that you mentioned in the notes. Only generally in passing, let me put it. I'm not a voyeur of these films nor am I a collector of said films. I don't think there's anything wrong with pornographic film. Personally, I don't care what you watch. I don't care what you watch. That's not up to me. You're in the privacy of your home as long as everybody in the room is a consenting adult watching. J. Aughenbaugh: Yes. N. Rodgers: Both watching and performing, I don't care. That is not my business. But I have seen films where they have attempted to go the literary route. I can't believe I'm going to save these words on a recording, painting at the Opera, which is a version of the story Phantom of the Opera, and I believe that to the listener's imagination as to where that goes next. One hilarious in the sense of the costuming involved such as it was. But also, I think they were trying to. J. Aughenbaugh: Satisfy the third part of the Miller test. N. Rodgers: Right. J. Aughenbaugh: What happened after the Supreme Court announced the Miller test Nia, is that the. N. Rodgers: I'm sure scenes were added to lots of pornographic films. J. Aughenbaugh: The producers, the writers, the makers of pornographic art wanted to go ahead and put the burden on the government to satisfy the third prong. What they did was, they added plot lines that are just absolutely hilarious. At least they are hilarious to me. N. Rodgers: They had to me too, they're so bad because they are clearly. J. Aughenbaugh: Designed to go ahead and address that part of the Miller test. N. Rodgers: Exactly. They're not okay. J. Aughenbaugh: We had cases arise in Federal Courts where you had actors discussing the Constitution. Then all of a sudden an orgy broke out. N. Rodgers: Which as we know, just happens all the time and couple of times. J. Aughenbaugh: It happens all the time. They were rehearsing Shakespeare. N. Rodgers: Again, an orgy breaks out. J. Aughenbaugh: Wait for it, an orgy breaks out. They were studying the periodic table and an orgy broke out. Of course my favorite is Alice in Wonderland, the pornographic version. I now know why the Cheshire cat always has a grin on its face. N. Rodgers: Yeah. J. Aughenbaugh: But nevertheless. N. Rodgers: The thing is, the real problem with. J. Aughenbaugh: These tests, they can be so subjective. N. Rodgers: I'm stating for the record and please, if you're out there and he made this film, please don't say me, painting of the Opera is a terrible movie. It's a terrible movie based on what we would normally critique a movie for, terrible acting, terrible lighting. But that's not the point of the film. J. Aughenbaugh: No, it's not. N. Rodgers: The point of the film is something entirely different. For the point of the film, it gets across what it needs to get across. But let me say that way. J. Aughenbaugh: Yes. N. Rodgers: It is a perfectly innocuous there you go, that's porn. J. Aughenbaugh: Yes. J. Aughenbaugh: The fact that to satisfy your Supreme Court test, they're adding these elements. In part just makes me laugh simply because I'm like, can you be any more transparent that you want to put the burden on the government to have to explain in open court that X movie. N. Rodgers: Is not, actually. J. Aughenbaugh: Doesn't have any. N. Rodgers: Lacks literary value. Yeah, not just any literary value, it's serious literary. J. Aughenbaugh: We're now involved in a debate about the semantics of serious literary or serious political or serious scientific. What you're going to call? You're going to call PhDs in the slides to go ahead and discuss, the extent to which they got the periodic table, correct or I know they discussed it. Come on. N. Rodgers: Well, and I have read many articles that lack serious scientific value. J. Aughenbaugh: Yes. N. Rodgers: Just because you get published doesn't mean you have serious scientific value. J. Aughenbaugh: Yes. N. Rodgers: I'm throwing out there that if you're going to hold a porn to that standard, you should probably also hold generalized publishing to that standard. J. Aughenbaugh: Oh, goodness gracious. Yes. N. Rodgers: I feel a bit sad. I do like that the court tied it to local communities, state laws, that thing allowing that local officials and local laws would reflect what a community accepts or doesn't accept. J. Aughenbaugh: Yeah, because it's almost impossible to come up with a national norm. Country as large and as diverse as the United States, about what is or is not. Pornographic versus obscene. N. Rodgers: Exactly conservative parts of the country versus. That's conservative parts of the country. J. Aughenbaugh: In mid part of the difficulty now is that the creation, distribution in viewing a porn cuts across national lines. N. Rodgers: It's part of the Commerce Clause. J. Aughenbaugh: Well, I mean, you get into issues of the fact that many consumers of porn aren't going to a local bookstore or a local movie theater. They're watching porn on the internet and you may not know as the consumer where the porn was made, what company is distributing it, where they got their actors from, etc. That part of the Miller test is becoming very problematic in application because it's almost impossible for a local prosecutor to go ahead and say. N. Rodgers: This is bad in my area. But it wasn't produced in your area and it wasn't intended just for your area. J. Aughenbaugh: That's right. N. Rodgers: I'm assuming that this is separate from the question of the consent of the persons involved. Everybody has to be over a certain age. J. Aughenbaugh: Yeah. N. Rodgers: You either consent to view or to consent to participate. J. Aughenbaugh: Yeah, there are also when we talked about void for vagueness and overbreadth. When Congress has attempted to impose some laws or standards regarding obscenity and in particular, the use of children. The Supreme Court has declared them unconstitutional simply because the laws were written either so vague that it was impossible to go ahead and know what was or was not acceptable. I'm talking about the Reno case from the mid 90s. But then the court went ahead and said, a law that was passed in regards to the depiction of children in porn was overbroad. Because it was almost impossible to go ahead and figure out whether or not the actors who are portraying children were actually children. N. Rodgers: Because there are actually softwares that will allow you to DAH. J. Aughenbaugh: Yes. N. Rodgers: Often actresses, more than actors. J. Aughenbaugh: Yes. But nevertheless, you actually have even in popular shows and movies, they don't have anything to do with porn or obscenity. You have actors and actresses who are 25, 26, 27 playing teenagers. N. Rodgers: Glee, the entire cast of glee. J. Aughenbaugh: It's a glee. N. Rodgers: Was not teenage. There's reasons for that. There's reasons some of its child labor. It's that you want actors that are more seasoned. Like there's all kinds of reasons but that's not to slam glee by the way, please. Wonderful. J. Aughenbaugh: By the way it's just an example of how difficult it is to pass laws to address a public policy problem while also satisfying the Constitution. N. Rodgers: Right. The scourge of pornography, which I think is what Nixon called it. J. Aughenbaugh: Yes, the scourge of pornography. N. Rodgers: It turns out this scourge of pornography has not brought this down as a country. J. Aughenbaugh: Yeah. N. Rodgers: We're working on that in other ways, but that's not been bad. J. Aughenbaugh: Right. N. Rodgers: Sorry. J. Aughenbaugh: Do you have another favorite test that you wanted to address? N. Rodgers: I do and it's because it's the title of a Tom Clancy novel. J. Aughenbaugh: Oh, clear and present danger. N. Rodgers: Clear and present danger test. That is a phrase that is used a lot due to my heart in Homeland Security and Emergency Preparedness. It's a phrase we use pretty often. Does this thing present a clear and present danger? J. Aughenbaugh: That's right. In that phrase, is associated with a constitutional law test created by the Supreme Court in the case of Schenck versus the United States in 1917. This was a World War I case. The government had passed a law. The Alien and Sedition Act. The Alien and Sedition Act was passed in the late 1700s. N. Rodgers: I was going to say by Adams. J. Aughenbaugh: Yeah, during the Adams administration. The Sedition Act, and basically this was a law that would allow the federal government to arrest anybody that would harm the US war effort. N. Rodgers: [inaudible] was a communist who is basically saying. J. Aughenbaugh: He was a socialist to pass out pamphlets encouraging young men to not participate in the draft for the war. N. Rodgers: To burn their draft cards basically. J. Aughenbaugh: Yes and the Supreme Court in a unanimous vote said that the law was constitutional. They did so by creating a test that courts could use to evaluate laws. J. Aughenbaugh: Here's the test and it's for iteration. The question in every case is whether the words used are used in such circumstances, and are of such a nature as to create a clear present danger that will bring about the substantive evils that Congress has a right to prevent. N. Rodgers: Men not going off to the draft. J. Aughenbaugh: That's right. N. Rodgers: Because then your army falls in numbers and you lose and then the next thing everybody is speaking German. J. Aughenbaugh: Yeah, okay. N. Rodgers: Sorry. There are several steps in-between that catastrophic failure. J. Aughenbaugh: But that was basically the logic or the argument that the government made. N. Rodgers: You can't just go around burning your draft card. That's not okay. J. Aughenbaugh: Because basically the government made the argument in the court agreed that the government doesn't have to wait for an effort to overthrow the government, to stop the effort to overthrow the government. N. Rodgers: As soon as somebody says, "We're going to overthrow the government," the government can throw you in jail. J. Aughenbaugh: Yes. Okay. N. Rodgers: That held for awhile. J. Aughenbaugh: It held until the late 1960s. But the difficulty with the clear and present danger test was that with most of these tests, there are parts of it that are very subjective depending on who applied the test i.e the federal judge in a particular case. N. Rodgers: What is substantive evil? J. Aughenbaugh: Yeah. What is a substantive evil. What is a clear and present danger, right? N. Rodgers: Right. How present is present? J. Aughenbaugh: How clear does the danger have to be, right? N. Rodgers: Yeah. We're back to Buffy. Could you vague this up for me? [OVERLAPPING] J. Aughenbaugh: Where this all comes to a head Nia, is in the late 1940s into the 50s where you had the federal government and state governments prosecuting communists. N. Rodgers: In the late 60s, it would also have been hippies, right? J. Aughenbaugh: Right. The anti war protestors. N. Rodgers: Down with the war, and don't go to Vietnam, and move to Canada. Again, people telling you to burn your draft cards. J. Aughenbaugh: Okay. With the communist, part of the difficulty was Karl Marx went ahead and argued that at some point the worker class would overthrow the capitalist class. You're talking about political theory that is discussing, revolution, the overthrowing, if you will, of the existing societal structures. Well, the government is like, "Well, we can have a bunch of communists running around saying that because eventually a bunch of Americans are going to believe that and they're going to want to do what?" N. Rodgers: Overthrow the government. J. Aughenbaugh: Overthrow the government. N. Rodgers: Which we can't have. J. Aughenbaugh: Eventually, some federal judges were like, but they're just talking about it, right? J. Aughenbaugh: Right. J. Aughenbaugh: They're just a bunch of people in coffee shops or in classrooms. N. Rodgers: I was going to say they're beatniks writing poems. [OVERLAPPING] How dangerous are they? J. Aughenbaugh: Yeah, how serious is this? Eventually, the Supreme Court, in a case that has absolutely horrific case facts, Brandenburg versus Ohio. Brandenburg was an officer in the KKK who gave a series of speeches in the state of Ohio, basically telling his audience that they should go ahead and kill members of the Supreme Court, the President, and members of Congress. N. Rodgers: Okay, that's bad. J. Aughenbaugh: Because they were all enemies. But he's just talking about it. Ohio prosecutes him for violating their syndicalism law. The case goes to the Supreme Court, and a unanimous Supreme Court says, "Yeah, the clear and present danger test is just too vague. It doesn't work in theory, doesn't work in practice. We're going to replace it with a new test. The government has to show that the speech in question will create imminent lawless action." N. Rodgers: You and I are standing around on campus, and we're having one of those rabble rousing moments where both standing on soap boxes and we're like, "Down with the Board of Visitors, they're the ones who raise your tuition [inaudible] ." We're just basically, and we're saying, "We should fire them all." Then we say, "They're meeting upstairs, let's go now," and we start in that direction. We have now gone from vaguely saying this ought to happen to this is now an imminent threat. J. Aughenbaugh: You got the imminent part, but the next thing the government has to show is lawless action. N. Rodgers: We have to be armed. J. Aughenbaugh: Or are we breaking the law by going up and interjecting ourselves into a Board of Visitors meeting. What if the Board of Visitors was in the open session part of their agenda? Are we breaking the law? N. Rodgers: No. Nothing has happened except that we're just being a loud nuisance, right? J. Aughenbaugh: Yes. N. Rodgers: Being a nuisance is not against the law most of the time. J. Aughenbaugh: Most of the time. Example, I want to use my students is, let's say you take one of my tests. As you're leaving the classroom or you're leaving the building, you say, "Man, that test was hard. I would like to kill Professor Aughenbaugh." I said, "Could the government prosecutes you for that speech?" They just paused and I say more than likely not. N. Rodgers: I was going to say no because I would like to is not the same as I'm going to. J. Aughenbaugh: I'm going to where [inaudible] N. Rodgers: With this gun that I have in my pocket. J. Aughenbaugh: Yeah. Where you explain how you're going to go ahead and kill me. J. Aughenbaugh: When you're going to kill me. N. Rodgers: I'm going to follow him home tonight from class and an elaborate plan in which case you find that that's a yes. If they had found the manifesto of the gentlemen in, and I use gentleman here in the completely opposite word because I cannot say what it would say about him, the Buffalo shooter? J. Aughenbaugh: Yes. N. Rodgers: If they had found his manifesto and his plan. J. Aughenbaugh: Could they have detained him? Yes. N. Rodgers: Because he's showing an imminent danger of a law was that he had gathered the weapons, he had explained what he was going to do. He was clearly preparing for murder. J. Aughenbaugh: Even still think about how subjective this is. What is imminent? Is tomorrow imminent? N. Rodgers: Right. Is this the two hours from now? Is this 10 days from now? What is [inaudible] J. Aughenbaugh: What is lawless? Because a lot of lawlessness occurs, not because you planned it, but because you showed up and did X and somebody else was there and they responded to your X with Y. N. Rodgers: Right. J. Aughenbaugh: Your intent was not necessarily lawlessness. But what you said or did generated a response from somebody else, and now both of you are engaged in lawless behavior. N. Rodgers: One could argue, and we're not going to get too terribly political, and I know we need to wrap up, and it sounds to me we have other tests we're going to need to talk about. J. Aughenbaugh: Oh, yes. N. Rodgers: In another episode. J. Aughenbaugh: We haven't even gotten to one of my favorites, the infamous Lemon test, which actually comes from a name of a court case. N. Rodgers: Yeah, as opposed to the squeezy thing, within juice. But before we go on this episode. It sounds to me that could potentially be the argument that the government is making about protesters on the day of January 6th, 2020. J. Aughenbaugh: Yes. That is part of their logic because defense attorneys have raised the imminent lawless action tests as a defense. Government, how can you show that what we did. N. Rodgers: Was intended to be this? J. Aughenbaugh: Yes. J. Aughenbaugh: How's the behavior of my client not protected by the First Amendment. N. Rodgers: Hence why Donald Trump is not in prison. Because his speech may have been rabble rousing, but you would have to prove that his intent was to encourage people. J. Aughenbaugh: Yes. N. Rodgers: We have more to talk about with this. Listeners, we're going to stop there, but we're going to come back and finish that discussion because I wanted to talk about intent with this, which I think is another element of this. Then we have some other tests we're going to talk about as well. J. Aughenbaugh: Yes. N. Rodgers: Thank you all gave. It's been really interesting and I didn't realize they had this many tests, so I'm sure there's more that we haven't. J. Aughenbaugh: Nia, even when we do Part 2 of this. N. Rodgers: They'll still be some leftover. J. Aughenbaugh: There's going to be other tests. J. Aughenbaugh: I just went ahead and collected, if you will, some of them the most prominent or frequently used tests. Hector's one in my research notes that if you're not an administrative law scholar, you're like, "What are you talking about?" But it actually has been discussed with some regularity among government officials and court members in the last few years. We will get a bit of a teaser, a little bit. N. Rodgers: Awesome. We will get to that in the next episode then. J. Aughenbaugh: Sounds good. N. Rodgers: Thank you, Aughie. J. Aughenbaugh: Thank you, Nia. Announcer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.