Of burning houses and roasting pigs: why Butler v. Michigan remains a key free speech victory more than a half-century later.

• Author: Calvert, Clay

1. INTRODUCTION II. THE STORY BEHIND BUTLER AND THE PRINCIPLE TO WHICH IT GAVE RISE: BURNING DOWN THE FIRST AMENDMENT HOUSE TO ROAST THE OFFENDING PIG III. THE LASTING LEGACY OF BUTLER ON FIRST AMENDMENT JURISPRUDENCE A. Ginsberg v. New York B. FCC v. Pacifica Foundation C. Bolger v. Youngs Drug Products Corp D. Sable Communications of California v. FCC E. Reno v. ACLU F. United States v. Playboy Entertainment Group, Inc G. Ashcroft v. Free Speech Coalition IV. CONCLUSION I. INTRODUCTION

   When thinking about celebrated free speech cases since 1950, a dozen or so U.S. Supreme Court rulings involving the First Amendment (1) probably come readily to mind. They likely include, chronologically, free speech victories such as New York Times Co. v. Sullivan, (2) Tinker v. Des Moines Independent Community School District, (3) Brandenburg v. Ohio, (4) Cohen v. California, (5) New York Times Co. v. United States, (6) Miami Herald Publishing Co. v. Tornillo, (7) Hustler Magazine v. Falwell, (8) Texas v. Johnson, (9) Florida Star v. B.J.F., (10) McIntyre v. Ohio Elections Commission, (11) Reno v. ACLU, (12) and Snyder v. Phelps. (13) Besides Snyder, other relatively recent cases like Bartnicki v. Vopper (14) and Brown v. Entertainment Merchants Association (15) might also come to First Amendment scholars' minds.

   This Article contends, however, that one of the most important free speech cases since 1950--an especially vital case today when considered within the context of the ongoing culture wars in which shielding minors from supposedly harmful content is an often-used government rationale, or perhaps excuse, for censorship--is the much less celebrated 1957 high court decision in Butler v. Michigan. (16) One current constitutional law casebook devotes a meager three sentences--in a "note" section, no less--to Butler, (17) while another casebook fails to mention it at all. (18) The Butler opinion spans a mere five pages in the United States Reports and consists of fewer than ten total paragraphs. (19) It illustrates, however, that brevity, concision, and unanimity are powerful characteristics when a Supreme Court opinion identifies--employing a memorable phrase in the process--a clear-cut, timeless legal principle upon which future courts and jurists can build and premise their own decisions.

   Part II of this Article provides an overview of Butler, including background on the key protagonists in the controversy. (20) Part III then illustrates how the central holding of Butler has been employed numerous times over the past fifty years across multiple media platforms, including the Internet, and in a wide range of factual scenarios. (21) Next, Part IV argues that Butler will remain important in the near future, and identifies the reasons why Butler has proved so powerful despite not typically falling within the pantheon of celebrated First Amendment victories. (22)

2. THE STORY BEHIND BUTLER AND THE PRINCIPLE TO WHICH IT GAVE RISE: BURNING DOWN THE FIRST AMENDMENT HOUSE TO ROAST THE OFFENDING PIG

   "The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children." (23)

   This critical observation in Butler gave rise to a pivotal principle in First Amendment jurisprudence--that the government cannot, in the name of shielding minors from supposedly objectionable content, implement a blanket ban on that content and thereby reduce the scope of speech available to consenting adults. The effect of such measures, as Justice Felix Frankfurter colorfully wrote, is "to bum the house to roast the pig." (24) In short, Butler is a crucial victory for the First Amendment rights of adults to receive controversial speech. (25) It also marks a key defeat for the longstanding notion of censoring speech in the name of protecting children. (26)

   How did the Court reach this result in Butler? It all began with a 1952 novel by John Howard Griffin called The Devil Rides Outside (27)--a title that, ironically, is never mentioned in the Supreme Court's ruling in Butler. The New York Times described the book as "a frankly autobiographical account of [Griffin's] spiritual experiences living in French monasteries while he pursued his musical studies." (28) While The Devil Rides Outside ultimately spawned a Supreme Court decision, it was Griffin's later book, Black Like Me, based upon Griffin's travels through the South for six weeks after he died his skin black, (29) for which he is perhaps more famous. (30) Black Like Me, as the Washington Post observed, "opened a window to the wider public on the Southern system of racial interaction and changed Griffin's life forever." (31)

   While Black Like Me might have opened a window to the public on white Southern bigotry, The Devil Rides Outside opened a window on Northern censorship. The Devil Rides Outside was a best-selling novel, (32) despite a New York Times review that described it as plagued by "a series of heavy faults" and that "[p]assage after passage is overlong: the prose is overblown and trails endlessly, like a thin mist on a Scottish moor." (33) Censors "objected to Griffin's lengthy descriptions of sexual activity," (34) including one passage in which the book's narrator describes "a vision of strong legs, deep navels, bursting milk-white breasts--insatiable, grasping, choking triangles of pubic greyness before my eyes." (35)

   One of those best-selling copies of The Devil Rides Outside, as it turns out, was purchased by a Detroit police inspector from a book dealer named Alfred E. Butler, who was fined one hundred dollars for the illegal transaction. (36) Alfred Butler, in fact, was no ordinary bookseller; he was the Detroit district sales manager for Pocket Books. (37) Pocket Books was America's first paperback publisher. (38)

   How did a copy of the book come to be purchased by a Detroit police officer? In a 1955 essay published in The Antioch Review, James Rorty explains that the National Organization for Decent Literature ("NODL"), formed in 1937 under the leadership of a group of Catholic bishops, was actively campaigning against literature of the day that it deemed objectionable. (39) In Detroit, the NODL had helped to organize the Citizens Committee for Better Youth Literature, which had a stated goal of working "actively for elimination from publication and circulation of such literature as may be detrimental to, or have no beneficial value in, the intellectual, social, cultural, or spiritual development of children and youth." (40) More importantly, Rorty writes that the NODL also found in Detroit its most important ally in a police inspector named Herbert W. Case, who headed Detroit's License and Censor Bureau, (41) and who Case characterized as "America's number 1 book censor." (42)

   Remarkably, Case's bureau had a staff of twelve employees who read about 125 books each month, screening for those tomes that it thought were obscene. (43) Such proactive governmental efforts at screening content in Detroit are astonishing when one compares them with the FCC today, which does not employ a single staff member to screen television shows and radio content for indecency. (44) As Rorty explains the situation in Detroit:

   An assistant prosecuting attorney, a postal inspector, and an FBI agent are permanently attached to the bureau. If the official censors believe that a given pocket book violates the law, the passages considered objectionable--not the book as a whole--are submitted to the district attorney. If the latter confirms the censor's verdict, the distributor is notified to that effect and he in turn notifies the publisher. The result, in most cases, is that the book is withdrawn from circulation without a court test. (45) Alfred E. Butler was charged after selling a paperbound reprint of The Devil Rides Outside. (46) In an interesting twist, however, the sale to the Detroit police officer actually was pre-arranged to set up a test case. As a Time magazine article from the era notes:

   Alfred E. Butler, Detroit distributor for Pocket Books, Inc., deliberately got himself arrested and fined $100 for selling a police inspector a 50[cents] paperback copy of John Howard Griffin's The Devil Rides Outside, an earnest, if second-rate, novel about the sexual torments of a young man trying to attain monkish chastity. The fine was rescinded, however, and both Butler and the cops pushed the test case toward the Supreme Court for an answer. (47) Test cases involving deliberate arrests related to selling sexually explicit material, of course, are not rare. (48) In this one, the Michigan statute under which Butler was prosecuted made it a crime to sell or give away to anyone, be it a child or an adult, a newspaper, book, magazine, or other printed content "tending to incite minors to violent or depraved or immoral acts" or "manifestly tending to the corruption of the morals of youth...." (49) A trial judge denied Butler's motion to dismiss the case and found him guilty because the language was offensive and, demonstrating his own supposed literary understanding about plot development, because the offending language "was not necessary to the proper development of the theme of the book nor of the conflict expressed therein." (50) The Supreme Court of Michigan denied an appeal, and the U.S. Supreme Court chose to hear the case in February 1956. (51)

   In defending its statute before the high court, Michigan's Solicitor General argued that by "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare." (52) In other words, keeping such content out of the hands of consenting adults in order to protect children was simply a necessary cost paid in promoting the greater good of the general public welfare. Put differently, a little collateral damage to the reading habits of willing adults is merely a small price borne for...