Privacy: Then & Now


Privacy: Then & Now

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The Constitution and the Promise of Privacy, 1789

While there is no specific mention of a “right to privacy” in the U.S. Constitution, there are broader rights that do provide for such protections. For instance, the Fourth Amendment guarantees the right of people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Probable cause is required for warrants and searches, and those warrants have to specify the exact place to be searched, and the persons or things to be seized. The First Amendment's guarantee of freedom of speech becomes relevant when legislation aimed at restricting speech, such as laws against “treasonous” or “obscene” language, uses private mail, illegal searches and seizures or other surveillance methods to identify and apprehend the source.

Little did we know then that Newton [Arvin's] photos we looked at had been
in a packet opened by the Post Office officials.
––Joel Dorius, Smith College English professor

The Comstock Act, 1873

Anthony Comstock was the secretary of the New York Society for the Suppression of Vice, an institution he created to supervise the morality of the public, when his crusade against obscenity in art and literature took him to Washington. Armed with a sack full of sample “obscene material,” he lobbied against obscenity, and his efforts ultimately led to the Comstock Law, which prohibited either sending or receiving printed matter or pictures “of an immoral nature.” Among other powers, the law allowed Comstock to enter any post office and inspect the mail for obscene material. He is credited with destroying nearly 160 tons of literature, deemed by him to be obscene or immoral. Today, the term “comstockery” is synonymous with unfair or excessive censorship.

The Espionage Act, 1917

As America entered into World War I, fears of obscenity were mild compared to anxieties about national security. With threats of invasion from without, and suspicions of subversion from within, Congress quickly passed the Espionage Act, which limited almost any behavior that might result in injury to the United States. Once again, the sharing or mailing of documents was under strict restriction and scrutiny and the postmaster general gained more power to censor the mail, now banning any material construed as promoting treason or endorsing resistance to U.S. law. The Sedition Act followed quickly, further specifying that anyone printing or publishing material causing “contempt or scorn” towards the U.S. government had committed a crime.

Joseph McCarthy, a round-faced man with short receding hair, gestures with his hand as he speaks, microphones on the podium in front of him

I think all along, even at the height of the McCarthy hearings, what [Arvin Newton, convicted on obscenity charges] was worried about was his exposure as a homosexual. 
––Daniel Aaron, English professor, Smith College

McCarthyism, the 1950s

In 1950, Joseph McCarthy, a Republican Senator from Wisconsin, instituted himself as the driving force behind a widespread hysteria surrounding suspected communists. McCarthy insisted that "subversives" were infiltrating the government and disclosing secret information. His “Red Scare” rhetoric cultivated a deep sense of panic in the country, spreading to include other so-called “deviant” groups, which at the time included homosexuals.

McCarthy fought against the employment of gay persons in the State Department as the Senate conducted a special investigation into “the employment of homosexuals and other sex perverts in government.” Meanwhile, the Senate committee recommended excluding gay men and lesbians from all government service.

Roth v. the United States, 1957

The landmark Roth v. United States case redefined the Constitutional test for determining what constitutes obscene material. Previous to this case, the Hicklin Rule had prevailed, declaring any material that tended to "deprive and corrupt those whose minds are open to such immoral influences" to be obscene. As a result, books by Balzac, D.H. Lawrence and Flaubert were considered obscene and banned. Due to the Roth case, the Hicklin test was repudiated and obscenity more strictly defined as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."

Ink from a rubber stamp on a package reads: “Report obscene mail to your postmaster” in big block letters

The whole campaign of the postmaster general ... the slogan, I remember, on the envelopes was, ‘Stamp out Smut’.  That was stamped on the letters and this was all part of a campaign. 
––Daniel Aaron, English professor, Smith College

The Postal Service and Privacy, late 1950s

In the late 1950s, Postmaster General Arthur Summerfield launched his “war on smut” and joined forces with Kathryn Granahan, chair of the House Subcommittee on Postal Operations. Together they campaigned for stronger legislation against obscenity, and in 1960 Granahan passed a bill that allowed the Postal Service "to seize and detail the mail of anyone suspected of trafficking in obscenity." After President Dwight D. Eisenhower signed the bill, empowered police troops began to search private houses for obscene material, and seize at will.

Mapp v. Ohio, 1961

When Cleveland police followed a tip that a wanted individual was hiding in the house of Dollree Mapp, Ms. Mapp demanded a warrant before allowing them to enter her home. The police entered forcibly and under a fake warrant, which she was not allowed to read. During their search, the police found and seized a trunk containing “lewd and lascivious” material, which Ms. Mapp was then convicted of possessing. In their ruling against her, the Ohio Court cited Wolf v. Colorado (1949) which held that evidence may be obtained by States in an unreasonable or illegal search and seizure.

The U.S. Supreme Court disagreed, ruling in Ms. Mapp’s appeal, that evidence found in an illegal search violated the due process clause of the Fourteenth Amendment, and was henceforth inadmissible in court. The ruling further held that Ohio’s anti-obscenity statute was “unreasonable and arbitrary” when ascribed to mere possession by an adult in the privacy of their home.

Two years later, the Mapp finding helped to exonerate Smith professors Joel Dorius and Ned Spofford on the grounds that their homes had been illegally searched, and the material confiscated was not obscene.    Read more »

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