Clearing the Calendar

Warren Burger's Supreme Court is winding up its current term with a flourish. Driving to clear the court calendar by July 8, when they face the momentous confrontation between the President and the Watergate prosecutors, the Justices last week handed down rulings in half a dozen important cases. All of them involved the First Amendment right of free expression. The nation's press may well be most deeply affected by the Tornillo decision sharply limiting citizens' right of reply to critical editorials (see cover story page 68).

The other decisions:

1. BACK TO PORNOGRAPHY. It was only a year ago that the Supreme Court, in Miller v. California, laid down one more set of guidelines for legislators and prosecutors dealing with illegal obscenity. The hope was that by using those guidelines, local judges and juries, exercising local standards of taste, would be able to dispose of a vast and growing glut of pornography cases. That hope was short-lived. Merely by considering the case of Jenkins v. Georgia, the court was, in effect, admitting that it had yet to find an escape from its unwanted role as the nation's chief censor. Once more the Justices found themselves reviewing a movie. This time, in a unanimous decision, they overturned the conviction of a Georgia theater manager who was found guilty of exhibiting obscenity because he had shown the 1971 film Carnal Knowledge.

The movie deals with the sex lives of two old college chums, and it includes shots of Actress Ann-Margret in the buff. To a Georgia jury, the film was hard-core porn. The high court Justices, who had it run off in their own private screening room, firmly disagreed. Mere "depiction of a woman with a bare midriff," said Justice William Rehnquist speaking for the court, would not disqualify a film from the protection of the First Amendment. While the Carnal Knowledge narrative fairly seethes with sex, he noted, "there is no exhibition of the actors' genitals, lewd or otherwise, during these scenes." Local juries, Rehnquist concluded, should not assume that they have been given "unbridled discretion" in judging obscenity cases.

Though the Justices all agreed that Carnal Knowledge was permissible softcore porn, they are still split on the basic strategy for dealing with obscenity. Justice William Brennan, who feels that Government would do better to abandon the field altogether, filed a brief opinion gloomily noting that the court had once again fallen back into "the mire of case-by-case determinations of obscenity." Brennan's I-told-you-so was aimed mainly at Chief Justice Warren Burger, who wrote the previous porn opinions that encouraged local courts and prosecutors to take off after whatever books, movies and plays seemed offensive when judged by "contemporary community standards."

This time Justice Rehnquist tried again to make the high court's definition of hard-core porn sharp and clear. Communities, he repeated, can prosecute "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, [or] masturbation, excretory functions and lewd exhibition of the genitals."

Echoing Brennan. Some publishers and movie officials felt the decision might help force porn-hunting prosecutors to distinguish between purple movies and publications and those that are merely blue. The ruling, said Film Industry Spokesman Jack Valenti, had strengthened "the freedom of the film maker to tell an honest story without hard-core pornography." Others were less enthusiastic. Echoing Justice Brennan, Playboy Enterprises' Robert A. Gutwillig complained that Carnal Knowledge was "a pitching back to the case-by-case review. The court is saying we don't know what it [pornography] is, but we'll know it if we see it."

The court did indeed see hard-core porn in a companion case. As if to emphasize that they had not really gone soft on obscenity, the Justices upheld the conviction of William Hamling and five other defendants from the Los Angeles area for mailing some 55,000 copies of an advertisement for The Illustrated Presidential Report of the Commission on Obscenity and Pornography. The obscene ad included pictures "portraying heterosexual and homosexual intercourse, sodomy and a variety of deviate sexual acts."

Having been urged by the high bench to establish their own community standards, many states have been rewriting their obscenity laws--often to the distress of serious publishers and film makers. Last week Massachusetts enacted a law that will allow district attorneys to order arrests on pornography charges without a prior court ruling on whether the material involved was in fact obscene. Publishing executives worry that the mere threat of such arbitrary arrests will have a "chilling effect" on the industry.

In most places, however, a chill has yet to be felt. Contrary to the expectations of civil libertarians, smut peddlers and bluestockings alike, last year's tough anti-obscenity rulings have had relatively little effect. The first few months after the Miller decision did see a rash of hasslings, raids, busts and prosecutions in Los Angeles, Tulsa, New Orleans, Tampa, Montgomery, New York, Bangor, Detroit, Chicago, Kankakee and elsewhere. Books were quietly shelved in many libraries and even burned (32 copies of Kurt Vonnegut's Slaughterhouse Five) in Drake, N. Dak. But, by and large, even smutty books and magazines still sold; the X-rated movies still showed. Says Barney Rossett, head of erotically oriented Grove Press: "Despite the fears, nothing much happened."

Why not? Beyond the legal confusion, some credit the failure of the porn crackdown to the quiet spread of a kind of laissez-faire attitude toward pornography below the level of judges and prosecutors. It may well be that both the Supreme Court and its critics have lagged behind the country. The national mood could be pointing to an uncensored future, envisioned by Justice Brennan, in which consenting adults will be free to decide for themselves what they will read and see.

II. ON LIBEL AND PRISON INTERVIEWS. The court was sharply divided in each of three cases involving the press. One decision turned back an effort by American Opinion, the monthly magazine published by John Bircher Robert Welch, to invoke the so-called New York Times libel rule in a defamation suit brought against the magazine by a Chicago lawyer. The Times rule (named after a 1964 case) virtually immunizes publishers and broadcasters against libel suits by public officials and public figures except in instances of reckless disregard for the truth. In the American Opinion case, the court refused to accord the same protection to the press in libel suits by private individuals, even in cases of great public interest.

The decision was not all that ominous for the press. It made proof of both liability and damages more difficult to establish. Private individuals can no longer collect punitive damages in libel cases except when the conditions of the Times rule are met. And even compensatory damages can be collected only on proof of actual harm--such as pecuniary loss or humiliation. Thus the net effect of the decision is to cut back on the chance that any newspaper, magazine, book publisher, TV or radio station acting in good faith will ever have to pay any substantial libel claims. The decision drew Justice Byron R. White's wrath. He heatedly insisted that the ruling "goes far toward eviscerating the effectiveness of the ordinary libel action, which has long been the only potent response available to the private citizen libeled by the press."

In two cases concerned with prison interviews, the press fared less well. A divided court decided against the Washington Post and three California reporters by ruling that federal and state prison regulations banning interviews between inmates and reporters did not violate the First Amendment.

Justice Potter Stewart, ordinarily a champion of press rights, wrote both opinions. He held that the problems of deterrence, rehabilitation and the maintenance of order in prisons outweigh any infringement of free speech. Inmates, said Stewart, have alternative ways in which they can exercise their First Amendment rights (such as writing letters), while reporters were not denied any access generally available to the public. Stewart's argument did not convince the Reporters Committee for Freedom of the Press, one of several press watchdog organizations. The committee denounced the decision as "a major constitutional defeat for the right of the public to know what is happening in our prison system."

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