Miller v. California, 1973

For the first time since the Roth case, Miller v. California produced a new majority opinion about how to identify constitutionally unprotected obscenity. As a result, the Miller case defined obscenity in three parts:

• Whether the average person would find that the work appeals to “prurient interest”
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law
• Whether the work lacks serious literary, artistic, political or scientific value

President George W. Bush signs the Patriot Act on October 26, 2001.   Photo courtesy of The White House/Eric Draper

The Patriot Act, 2001

Many consider the USA Patriot Act to be a serious threat to civil liberties. After the September 11th, 2001 attacks, Congress passed the huge, 342-page law with almost unprecedented speed, affording enormously enhanced powers to law enforcement officials.

To some groups, such as the American Civil Liberties Union (ACLU), this law epitomizes a return to McCarthyism. The word “Communist” has been replaced by “terrorist” and once again immigrants can be deported, jailed or detained for simply associating with an organization––this time an organization defined by the government as “terrorist.”

The Patriot Act also strains the Fourth Amendment by allowing government searches of a person's home without immediately listing the object of the search. This is the same practice that was ruled illegal back in 1963, when the Massachusetts Supreme Court exonerated Smith professors Joel Dorius and Ned Spofford.

The Patriot Act also expands wiretapping capabilities; it allows private information to be obtained without consulting a judge, and it allows private Internet and phone communications to be monitored by the police.

Privacy and Gay Rights, 2003

On June 26th, 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sodomy laws in the U.S. were unconstitutional. The vote was 5–4 to overturn the 1986 Bowers v. Hardwick decision, which had stated that there was no constitutional right to have homosexual relations in private.

In the 2003 ruling, Justice Anthony M. Kennedy wrote: “The state cannot demean their [gays'] existence or control their destiny by making their private sexual conduct a crime.” Justice Antonin Scalia dissented, saying that the court had “largely signed on to the so-called homosexual agenda.”

Digital Privacy: A New Frontier

Even in this modern, computer-dominated age, if America’s earliest lawmakers could transport themselves to 2006, they might easily look upon the issues we face today, and feel right at home. The players have changed, but the dilemma is the same: how does government protect its citizens without undermining their basic freedoms?

In 1995, the CATO Institute published a report that explicitly links the 19th century Comstock Age with the 20th century Digital Age. Titled “Digital Comstockery,” the report points out that in 1995 a Communications Decency Act (CDA), which made it a crime for Internet users to say "obscene" or "indecent" things, met the definition of unnecessary censorship, or “Comstockery.” That act was successfully passed by the Senate, despite its historical pedigree.

As fears about child pornography and pedophilia on the Web intensify, the pressure to confine and monitor digital content is rising, and Internet giant Google.com may be feeling the heat most of all. On one front, the Bush Administration has subpoenaed Google to surrender a million random Web addresses as well as records of all Google searches from any one-week period, in hopes of reviving Bush’s successor to the Communications Decency Act, the Child Online Protection Act (COPA). COPA was struck down by the Supreme Court, which stated that filters would be a less restrictive alternative to COPA.

Meanwhile, Google is fending off advances on another front, as its Gmail and advertising practices fall under fire from privacy rights groups. Google’s email client (Gmail) uses a computer to scan the body of e-mail text in order to target advertising, which––even by a computer––may be defined as an invasion of privacy.

Privacy v. Protection: The Rise of Domestic Surveillance

In a May 12, 2006 report published by USA Today, Joseph Nacchio, former head of the telecommunications carrier Quest, said that he had been approached by the National Security Agency (NSA) for access to customer phone records in 2001 and 2002. According to Nacchio, the NSA had requested access without producing a warrant or special court approval, and he refused, concluding that the request violated the 1996 Telecommunications Act. That Act, while primarily promoting carrier competition and access to services, also restricted the use and transfer of customer information. The NSA, which has been under scrutiny for mining the millions of phone records it successfully obtained from AT&T, Verizon and BellSouth in 2001, maintains that the surveillance program is necessary to track terrorist communications and preserve national security. Michael Hayden, who headed the NSA from 1999 to 2005 and oversaw the covert surveillance program, was confirmed as director of the CIA on May 26, 2006.

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