Mill On Liberty 200 Mill 1806 1873 Philosopher of science ethics economics Member of Parliament officer of British East Indies Company Major feminist voice with wife Harriet Taylor ID: 611433
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Slide1
When Law Defines MoralitySlide2
Mill, On Liberty,
200
Mill (1806 –1873): Philosopher of science, ethics, economics; Member of Parliament; officer of British East Indies Company
Major feminist voice with wife Harriet Taylor
Reworks utilitarianism of BenthamSlide3
South Florida Free Beaches v.
City of Miami,
199
South Florida Free Beaches, Inc argued that the City’s ban on nudity on its public beaches violates the First Amendment right to free speech (as freedom of expression)Slide4
Sodomy – A History
First considered under Church Law, becomes part of English criminal law in 1533 as capital offense
Only includes anal sex and bestiality until late 19
th
Century, not applied to women
1610: Virginia institutes first American sodomy law, capital punishment
1955: Model Penal Code delists sodomy
1961: Illinois decriminalizes sodomySlide5
Bowers v. Hardwick
(1986)
Georgia law criminalized sodomy without regard to gender or marriage
Hardwick arrested for private, consensual homosexual sodomy
Supreme Court majority recasts question as whether there is “a fundamental right [for] homosexuals to engage in sodomy”Slide6
36 States Decriminalized Sodomy before
Lawrence v. Texas
Yellow <1970, Orange 1970-89, Peach 1990-2002Slide7
Lawrence v. Texas (2003
),
A romantic partner of
Tyrone
Garner (Eubanks) called in a “man with a gun” to police. Police find Garner engaged in anal sex w/
Lawrence. Eubanks later serves two weeks for a false police report.Slide8
Lawrence v. Texas (2003
),
Texas "
Homosexual Conduct“ Act (Texas
Penal
Code, Chap.
21, Sec.
21.06) makes it a Class C misdemeanor
for anyone to "engage
in deviant sexual intercourse with another individual of the same
sex"Slide9
Devlin, “The Enforcement of Morals,” 202
Baron
Devlin (1905-1992): Roman Catholic English lawyer & trial judge, later a “Law Lord”
Writes “Enforcement of Morals” in response to
Wolfenden
Report (1965), that recommended decriminalizing homosexual acts in England (occurred in 1967)Slide10
Hart, Law, Liberty and Morality, 207
Hart was
Professor of Jurisprudence at
Oxford
Hart was bisexual and had an open marriage – his wife was intimate w/ Isaiah BerlinSlide11
Dworkin, “Devlin was Right,” 209
Gerald
Dworkin
,
Professor of Philosophy at
the University
of California,
Davis (no relation to Ronald)Slide12
Definitions
Obscenity
- from Latin,
obscenus
- not said.
B
eyond
First Amendment protection.
Obscenity includes pornography, but also includes
blasphemy
and
profanity
.
Pornography
- from Greek
pornographos
-
writing about prostitutes.
Material whose
primary purpose is to cause sexual arousal
;
n
ot all pornography is obscene.Slide13
Obscenity Originally
Restricted to Blasphemy
First known pornography prosecution,
Rex v. Read
(England, 1708) involved author of
The Fifteen Plagues of a Maidenhead
Acquitted. Court found book "bawdy stuff," but not criminal because it did not libel either the King or Religion.Slide14
Obscenity Originally
Restricted to Blasphemy
First known
successful
pornography prosecution,
Rex v. Curl
(England, 1727) involved author of
Venus in her Cloister, or the Nun in her Smock
Court found Curl guilty of “offence to religion” as the action involved clergy in sexual situations that mocked religious rituals.Slide15
Obscenity Originally
Restricted to Blasphemy
Massachusetts had only colonial statute condemning what today might be called pornography, but law required works be “in imitation of preaching or any other part of divine worship.”
Changes law in 1835 to replace religious requirement with “tending to corruption of the morals of youth.”Slide16
People v. Boomer,
271
Boomer is canoeing and tips over, swears loudly as he enters cold water
Michigan law states that:
Any
person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.Slide17
Porn, Porn, Everywhere!Slide18
Arguments against Pornography
Porn focuses
on body, not complete person
Sexual
gratification outside marriage
is wrong (or illegal)
Pornography undermines gender equality
Pornography
increases
sex crimes and/or reduces
sympathy for
victims
Porn contributes to a more vulgar society
Porn harms “performers”Slide19
Arguments against Censorship
Pornography is a harmless outlet for exploring sexual fantasies
No one has moral authority to determine what may be perverted or “prurient”
No proof that pornography increases sex crimes
Problem of defining pornography to include sexual discourse serving other valuesSlide20
Feinberg, “Obscenity as Pornography,” 241
Joel Feinberg, 1926-2004, philosopher at Princeton (later at U of Arizona)
Question: Is it consonant with liberal principles (only prohibit that which causes harm) to ban pornography?Slide21
American Booksellers Assn v.
Hudnut
, 237
Indianapolis ordinance results from alliance between radical feminists and Christian conservatives
Prohibits pornography in which women are shown as weak, submissive, or enjoying pain