The Brethren (50 page)

Still, White did not want to tell the states exactly what they could and could not ban. He wanted
a
requirement that would defend clearly protected speech and yet allow the states flexibility. He would permit the states to define obscenity as they saw fit if they specifically described exactly what acts they found to be obscene, and if the work both appealed to the prurient interest and was patently offensive "hard-core" conduct. Listing those acts would at least put pornographers on notice as to what was obscene. It would also limit the whims of local enforcement authorities. With that addition, White would join Burger's opinion.

Burger accepted White's suggestion, and added
a
few examples of what
a
statute could regulate as "hard-core" pornography: "Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."

Burger had his third vote. There were two to go.

In Powell's chambers, h
is two liberal clerks kept up the pressure on their boss to join Brennan. They were concerned, however, about Powell's frequent weekend trips back to his home in Richmond
.
The third and most conservative clerk in the office was also from Richmond and he often drove home with him. Each time Powell returned, his attitude seemed to have become more conservative.

But the other clerks were still optimistic. Powell's initial shock, at his first glimpse of pornography the previous term, had faded. His appreciation for First Amendment values seemed to be growing.

He had written a
per curiam
opinion
(Papish v. Mo.)
overturning the conviction of a journalism graduate student for distributing an obscene underground paper that had reprinted a cartoon of policemen raping the Statue of
Liberty and the Goddess of Justice above the caption ". . . with Liberty and Justice for all." The same issue reported the trial of a New York radical organization known as "Up Against the Wall, Mother Fucker" with the headline "Mother Fucker Acquitted."

Powell was sufficiently sen
sitive to the language that in
place of the word "Fu
cker," he used "F ." But he ex
pressed no doubt that this
was political speech under the
First Amendment.*

One of Powell's clerks became confident that his boss would ultimately join Brennan's opinion. He assured his fellow clerks that Powell would be "OK" on the subject. Toward the end of the term, the clerks from all chambers had lunch with Powell. Powell enjoyed such contact. He warmed up quickly and was soon sharing his innermost thoughts. A question came up about obscenity.

Powell told them he had decided to vote with the Chief.

Now the Chief had four votes, and Brennan had four. It was up to Blackmun.

Blackmun was fully aware that once again, a major case was waiting to be decided by his vote. He could make his new friend Brennan or his old friend the Chief author of the majority opinion.

Most of Blackmun's problems with the Chief's draft had been resolved as the year wore on. The Court had held in two other cases
(Roaden
v.
Kentucky
and
Heller
v.
New York)
that before criminal prosecutions could begin, accused pornographers must be allowed a hearing to determine whether the materials are obscene. Much of the Chief's offensive language had been taken out or cleaned

* Rehnquist circulated a dissent that struck Brennan as among the most unusual he had seen since he arrived at the Court. Rather than concentrating on the obscenity question, Rehnquist instead detailed the six-year academic progress of Barbara Papish, the distributor, a graduate student in journalism. After noting she was on academic probation, Rehnquist pointed out that she distributed two publications for Students for Democratic Society using the words
fuck, bullshit
and
shits,
and one of them with a picture of two rats labeled "CIA" fornicating on the cover.

Brennan was not shocked when the Chief concurred with Rehnquist. But he was surprised and discouraged when Blackmun joined Rehnquist's dissent. Blackmun's sensibilities were still easily offended, Brennan concluded.

up, and White had gotten him to require that state legislatures detail the obscene acts they would ban. Brennan's warnings of disastrous consequences and a continuing crush of cases seemed exaggerated.

Like White, Blackmun concluded that Brennan's continued willingness to retain even a limited definition of obscenity meant that one was necessary. The Chiefs solution seemed as safe
a
bet as Brennan's.

But Blackmun had
a
lingering problem with the passage in Burger's draft that said materials should be "taken in context." The way Burger used the phrase, it really meant the exact opposite of "taken as
a
whole." Blackmun was concerned that any pornographic section, no matter how small, could get the most worthw
h
ile work banned. "Taken in context" was
a
license to take material "out of context."

Burger's clerk was once again liaison between his boss and Blackmun. Blackmun asked that the old Brennan phrase—taken as
a
whole—be restored. The clerk added it.

Burger struck it out

Blackmun renewed his objection. The clerk again tried to change it.

Once again, Burger said no.

Burger's clerk told his boss that he did not believe Blackmun would join without the change. He would go with Brennan instead.

Burger was not accustomed to defiance from Blackmun. But the abortion decision had proved that Blackmun could not be taken for granted. Now Burger waited.

The only way for Blackmun to influence the Chief was to withhold his vote.

Finally, reluctantly, the Chief agreed to permit the change. Blackmun became his fifth vote.

Brennan was more saddened than angered by the loss. He revised his draft as a dissent. He finally was willing to renounce all definitions of obscenity, as Douglas had been beseeching
him
to do for sixteen years.

There was a right, Brennan said, to receive information regardless of its social worth, regardless of its obscenity.

Douglas shrugged at Brennan's belated conversion. If Brennan had seen this four years earlier, when the liberals still had a clear majority, or even the year before, when there was still
a
chance, it would have meant something. In the meantime, Burger had cited all Brennan's old opinions to support his position. Now, they would have to wait and see what havoc the Chief had wrought.

Burger's
5
-to
-4
majority decisions in the obscenity cases were scheduled to come down on June
21.
While they waited for the opinions, the Burger clerk who had worked on them sat with another Burger clerk, listing questions that the opinions left unanswered. By the time they were done, they had more than two dozen.

Unanswered questions or not, Burger's clerk was relieved to have completed this task. The case would come down in a few days. At least there would be no more absurd changes by the Chief. There would be no more negotiations, no more apologies to the other clerks and Justices, no more saving Burger from his own rhetoric. The clerk had reached the end of his rope, but he was free.

Then a memo arrived from the Chief. It said to hold the opinion; the Chief had some additional last-minute changes to make.

The clerk wobbled in his office chair. Then he heard the snickers. It was a joke by his fellow clerks. He didn't think it was very funny, tampering with a man's sanity.

The opinions came down on June
21.
Burger was very proud of them. He had made another important pronouncement in a troublesome area of the law. For the first time in sixteen years, he noted from the bench, "A majority of this court has agreed on concrete guidelines to isolate 'hard core' pornography from expression protected by the First Amendment."

In Washington, the local prosecutors hailed the new rules. Some adult-bookstore owners quietly removed their more explicit ware from the shelves. A few weeks later, an Albemarle County, Virginia, prosecutor announced that he would prosecute anyone selling
Playboy
magazine on local newsstands. The magazine violated community standards in Charlottesville, home of the University of Virginia.

When the Chief read a news story on the prosecutor's action, he immediately jotted a memo to the conference. He had never intended to ban
Playboy,
he insisted. His opinion was clear on that point.

On January
17,
the Court heard oral arguments in a sex-discrimination case
(Frontiero
v.
Richardson).
Many such cases had been building in the lower courts as women challenged laws that discriminated against them.

In this case, a female Air Force lieutenant, Sharron Frontiero, had asked the Air Force for larger quarters and allowances of several hundred dollars a month because she had married. Under federal law, these increases were automatically granted to married men. But for a woman to qualify, she had to prove that her husband was legally dependent and that he received more than half his support from her.

In previous cases, the Court had declined to treat sex discrimination as it did race discrimination—as virtually unconstitutional in all cases. The term before, the Court had unanimously struck down an Idaho law that gave automatic preference to men over women as administrators of estate
(Reed
v.
Reed).
But the decision, written by Burger, had held simply that states could not pass laws treating men and women differently unless some clear reason was given for doing so.

At conference, Burger proposed that they handle the Air Force law exactly the same way. The liberals wanted to go further, but the Chiefs proposal was acceptable. Only Rehnquist wanted to uphold the law.

Burger assigned the case to Brennan. He preferred not to give Brennan civil rights cases, but since they agreed on the reasoning this time, little harm seemed likely to come of it.

But as Brennan went to work on the Air Force case, his misgivings about the rationale grew. Maybe the time
had
come to treat sex discrimination cases the same way as race cases. The kind of discrimination that was practiced against women had many of the same characteristics of past treatment of blacks—denials of the right to vote, to hold office, to serve on juries.

Brennan became convinced that a clear statement was needed. Yet, he did not want to offend the conference. His mandate had been to write an opinion striking down a single law, not to make a broad constitutional rule.

Brennan circulated a draft opinion on the limited grounds, and then he sent around an alternative section that proposed a broad constitutional ban, declaring classification by sex virtually impermissible. He knew that his alternative would have the effect of enacting the Equal
Rights Amendment, which had already passed Congress and was pending before the state legislatures. But Brennan was accustomed to having the Court out in front, leading any civil rights movement. There was no reason to wait several years for the states to ratify the amendment. This could be a landmark case if he could get four more votes. Douglas, Marshall and White rapidly joined his alternative. Now, he needed only one more vote.

Powell realized Brennan saw him as the possible fifth vote. But he didn't like Brennan's draft, which read at times like a Women's Liberation tract, calling sex discrimination in statutes "romantic paternalism" that put "women not on a pedestal but in a cage." More importantly, Powell was sensitive to the Equal Rights Amendment debate. With a proposed amendment before the state legislatures, the issue was clearly in the political arena. That was where it belonged. There was no need for a summary, unrestrained exercise of judicial power.

Powell circulated a short dissent to Brennan's sweeping version, trying to gather votes for the other side. Burger, Blackmun and Rehnquist joined him. That made it
4
to
4.
Stewart would be the deciding vote.

Stewart felt caught between his two best friends on the Court, Powell and Brennan. Generally he didn't like equal protection decisions. They were often a kind of judicial legislation. While he disagreed with Powell's suggestion that the pending amendment precluded Court action, he did see it as a problem. This was not a matter that needed to be settled immediately. The Court should move slowly.