Illegal in Public, but Legal in Private

Is there anything that is illegal in public but legal in the privacy of our own homes? For the most part no. Although there is a fundamental right to privacy elevated by the Supreme Court in Griswold v. Connecticut in 1965, this is misleading. The Court makes it sound as if everything do in private is okay, but that is not true. Drug usage is mostly done in private, but that does not make it protected. Growing or manufacturing drugs in the privacy of our homes is not legal. Manufacturing alcohol is prohibited in public or in private. Sex with prostitutes is done in private, but that does not make it legal (other than Nevada). Defaming private citizens in private is not legal. Storing stolen goods on private property is not legal. Sure, these things are not legal, but people may get away with many crimes because they do them in private.

There is one issue that may be illegal in public but legal in private: obscenity. Sex in public is not legal, it would be considered lewd or obscene. But sex in the privacy of our homes is legal, including such things as sodomy (Bowers v. Hardwick, 1986 and Lawrence v. Texas, 2003). Obscenity is one of the few subjects that is not protected by the First Amendment (Roth v. United States, 1957) other than the following exceptions settled in Miller v. California (1973): 1. The material “appeals to the prurient interest”; 2. Material or conduct is allowed by state laws; and 3. The material has some “literary, artistic, political, or scientific value.” The Court does not deal with obscenity the same way that it does with other First Amendment cases such as things depicting violence: video games (Brown v. Entertainment Merchants – 2011) and animal cruelty videos (United States v. Stevens, 2010). Hate speech is also tolerated such as the burning of the American Flag (Johnson v. Texas, 1989) and burning a cross on a neighbor’s yard (R.A.V. v. St Paul, 1992). Other than obscenity, the following issues have not gotten First Amendment protection: defamation (Beauharnais v. Illinois, 1952), Fraud (Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 1975), Incitement (Brandenburg v. Ohio, 1969), Child Pornography (Ferber v. New York, 1982) and speech that integral to criminal conduct (Giboney v. Empire Storage and Ice, 1949). Remember, just because a video of someone crushing a dog to death with their feet is protected, this does not mean the act is not a crime.

One case stood out when dealing with obscenity and First Amendment protections: Stanley v. Georgia (1969). In this case, obscene videos were confiscated from the home of the defendant and he was convicted under Georgia law. Although Roth v. United States said obscenity is not protected by the First Amendment, Justice Thurgood Marshall, who wrote the majority opinion, found a variety reasons to not apply Roth to this case: Roth did not involve “prosecution for private possession of obscene material”. That is true, Roth involved the public dissemination of obscene material. Furthermore, Marshall, pointed out other precedent: the right to receive information and ideas (Griswold v. Connecticut, 1965 – I am not sure why Marshall did not say the “right to privacy” for this case). Marshall contends “For also fundamental is the right to be free, except in very limited circumstance, from unwanted government intrusion into one’s privacy.” Marshall continues “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Marshall's best reason (although weak) for allowing something prohibited in public but legal in private is “the State may no more prohibit mere possession of obscene matter on the ground it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground they may lead to the manufacture of homemade spirits.” Also, since Marshall believes there is no danger “in this case” for the material to get into the hands of children he decides to strike down the law.

Marshall has many flaws in his rationale. First, it sounds as if the obscenity in this case would break the law if it were used in public. Second, although the threat of the material to get into the wrong hands in this case is not an issue, but that does not mean it could not happen in another obscenity - privacy case. Third, Marshall’s example of the chemistry book fails to mention that those homemade spirits made in private would be illegal, but anti-social behavior is not illegal. Fourth, Marshall says intrusion into a person’s privacy is “limited”. That limitation occurs when a person breaks the law as in this instance. Fifth, Marshall talks about our fundamental right to learn, but what does that matter if the material is illegal in public. Besides, one reason obscenity is not protected by the First Amendment is because it offers no social, educational, or moral value. Sixth, Roth is still the law of the land, it was not overruled. Finally, Marshall’s contention that the government doesn’t have the power to control what we read or to control our minds. The government does this all the time such as Nanny State laws, editing history books, restricted book lists high school students can read, indoctrinated teachers, the Fairness Doctrine, and so forth and so on. So, obscenity in private, is the only instance I have seen where someone violated a statute that was illegal in public but the Court ruled it was legal in private.