Sonia Sotomayor on Art (sort of)
Via Sullivan, we learn that Sotomayor has had the occasion to rule on issues involving art. Well, kind of...ok, so it was within the context of pornography, but it raised some art-related issues. The case involved a sex offender on parole who was found with porn (a violation of his parole terms). Legal affairs blogger Mike Doyle tells the story and relays an exchange during which an interesting intersection with art cropped up. Ultimately, this bolsters Obama's assertion that she is the woman for the job, IMHO:
The profane language and salacious imagery in Judge Sonia Sotomayor's opinion in the case Farrell v. Burke caught Suits & Sentences' attention. ... But what about her reasoning?Locked up for possessing a photo of Michelangelo's David? With his P.O. arguing crap like that, no wonder Farrel thought he had a case to be made. Sotomayor, however, separated out the wheat from the chaff nicely here:
Quick summary: convicted sex offender Christopher Farrell challenged the terms of parole that included a ban on pornography. The legal question, as Sotomayor put it in her May 2006 decision, is whether that special parole condition put Farrell properly on notice that the ban covered the book Scum: True Homosexual Experiences, which contains sexually explicit pictures and lurid descriptions of sex between men and boys.
Sotomayor and two colleagues on the 2nd Circuit concluded Scum "falls within any reasonable definition of pornography and that the parole condition is therefore not unconstitutionally vague as applied to Farrell's conduct." First: whatever the merits of the reasoning, this certainly avoids a potential confirmation headache. Imagine what Rush Limbaugh et. al, would make of Scum.
The opinion includes an illuminating excerpt of an exchange between a parole officer named Mr. Burke and a Mr. Nathanson, Farrell's attorney.
MR. NATHANSON: Are you saying, for example, that that condition of parole would prohibit Mr. Farrell from possessing, say, Playboy magazine?
P.O. BURKE: Yes.
MR. NATHANSON: Are you saying that that condition of parole would prohibit Mr. Farrell from possessing a photograph of Michelangelo['s] David?
P.O. BURKE: What is that?
MR. NATHANSON: Are you familiar with that sculpture?
P.O. BURKE: No.
MR. NATHANSON: If I tell you it's a large sculpture of a nude youth with his genitals exposed and visible, does that help to refresh your memory of what that is?
P.O. BURKE: If he possessed that, yes, he would be locked up for that.
Sotomayor noted, "no person should have to stake his or her liberty on another person's whims or aesthetic judgment, as Farrell alleges he was forced to do."Farrell had clearly tried to argue that Scum was "art," prompting, again, this reassuring response from Sotomayor: "no person should have to stake his or her liberty on another person's whims or aesthetic judgment, as Farrell alleges he was forced to do."
The opinion carefully traces the traditional problems associated with overly vague statutes, and the dangers they pose to citizens. The opinion further cautions that the term "pornography" is "notoriously elusive," and therefore potentially runs afoul of the vagueness problem. Moreover, the opinion takes note of decisions in the 3rd and 9th Circuits striking down similar parole conditions.
Indeed, Sotomayor's opinion takes exception to the government's broad notion of pornography -- "material depicting sexual conduct and 'designed to cause sexual excitement,'" -- as one that could ensnare many. So, to this extent, the opinion is fairly protective of expressive materials. [emphasis mine] Nonetheless, and here the opinion turns against Farrell, Sotomayor concluded that however vague the definition of pornography may be, Scum clearly fits within it. Farrell, previously convicted of sodomy with boys aged 13 to 16, knew what he was getting; in other words, he was on notice. Notes Sotomayor:"We find it difficult to imagine that a person convicted of such an offense—and consequently ordered not to possess 'pornographic material'—could purchase a book containing graphic descriptions of sex between men and boys and think that his parole officer would approve."
This sounds like the kind of razor-sharp reasoning I'd want in a Supreme Court Judge. Never having seen Scum (no, really), I can't comment on it's "artistic" merits, but from the description I'd say Sotomayor and her colleagues parsed this just right. Don't let the need to keep convicted sex offenders from materials that may trigger them to act again open the door to let the government to overstep in declaring what law-abiding adults should have access to. And certainly don't let the real need to protect children from monsters begin to morph into attempts to censor art. There are reasonable, Constitutional ways to protect both.