Soon after the announced retirement of Supreme Court Justice Sandra Day O’Connor, Family Policy Network President Joe Glover joined several of the nation’s pro-family leaders in asking President Bush to nominate a justice who understand the need for laws against obscenity and indecency. The appeal urged the President to nominate “a person who understands the difference between cherished liberty and ruinous license and who will not invalidate reasonable and necessary laws intended to protect society and children from obscenity and indecency.” July 14, 2005 The Honorable George W. Bush The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Dear Mr. President: With the resignation of Justice Sandra Day O’Connor, you will soon nominate her successor. We urge you to nominate a person who understands the difference between cherished liberty and ruinous license and who will not invalidate reasonable and necessary laws intended to protect society and children from obscenity and indecency. Our nation’s founding fathers viewed the First Amendment within a framework of ordered liberty ““ not as a license to publish pornography, to strip in public places for the purpose of sexually arousing patrons, to assault citizens in public spaces with indecent talk and pictures, and to commercially distribute entertainment that is harmful to minors without any legal obligation to adopt sensible measures to restrict children’s access. And throughout most of our nation’s history, the Supreme Court agreed. In Near v. Minnesota, 283 U.S. 697, at 716 (1931), the Supreme Court said, “the primary requirements of decency may be enforced against obscene publications.” In Chaplinsky v. New Hampshire, 315 U.S. 568, at 571 (1942), the Supreme Court said, “There are certain”¦classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the”¦obscene.” In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court noted, “this Court has always assumed that obscenity is not protected by the freedoms of speech and press” (at 481) and held that obscenity is “not”¦constitutionally protected speech or press” (at 485). In Ginsberg v. New York, 390 U.S. 629 (1968), the Supreme Court upheld a “Disseminating indecent materials to minors” law on the grounds that those responsible for children’s well-being “are entitled to the support of laws designed to aid discharge of that responsibility” (at 639) and that the “State also has an independent interest in the well-being of its youth” (at 640). In Miller v. California, 413 U.S. 15 (1973), the Court said, “This much has been categorically settled by the Court that obscene material is unprotected by the 1st Amendment” (at 23) and, “To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material”¦is a “˜misuse of the great guarantees of free speech and free press’” (at 34-35). In Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) the Court held that there are legitimate governmental interests at stake in stemming the tide of commercialized obscenity, “even assuming it is feasible to enforce effective safeguards against exposure to juveniles” (at 57-58). These include “the public safety (at 58) and “the right”¦to maintain a decent society” (at 59). In FCC v. Pacifica Foundation, 438 U.S. 726, at 748-749 (1978), the Court upheld the federal broadcast indecency law, observing that broadcast indecency confronts citizens “not only in public, but also in the privacy of the home” and that “prior warnings cannot completely protect the listener” and that broadcasting is “accessible to children, even those too young to read.” In a later case, however, the Supreme Court allowed a lower federal Court decision to stand that limited the hours during which the federal broadcast indecency law can be enforced. In recent decades, the Supreme Court has also: Limited the reach of obscenity laws to “hardcore pornography” Held that cities must provide “adult businesses” with a reasonable opportunity to open Held that “nude dancing” enjoys First Amendment protection Invalidated a law prohibiting “pseudo child porn” Invalidated a law restricting children’s access to indecent material on the Internet Invalidated a law restricting children’s access to pornography on cable TV Other federal court cases are headed towards the Supreme Court that, if decided in favor of the pornography defenders, will push our nation ever closer to the brink of moral anarchy. In Philadelphia, a U.S. Court of Appeals has ruled that a federal law restricting children’s access to Internet pornography is unconstitutional. In Pittsburgh, a federal judge has ruled that federal obscenity laws are now in large measure unenforceable. In New York City, petitioners have filed a suit in federal court arguing that a federal obscenity law cannot be applied on the Internet. Not too long ago, the legal arguments made in the above three cases would have been laughed out of court, but in a “legal climate” where some Supreme Court Justices think they can construe the First Amendment any way they please ““ irrespective of the history of a provision, the will of the people, common sense and the Court’s own precedent ““ these cases must be taken seriously. Because the Federal Communications Commission has finally begun to enforce the broadcast indecency law against TV networks (namely, NBC, CBS & FOX), one or more court challenges to this law are also expected in the near future. And, given the present makeup of the Supreme Court, media attorneys think the “High Court” may be ready to overturn Pacifica. Mr. President, we realize that there is often a fine line between Justices properly interpreting the Constitution and in effect rewriting it, but if that line no longer exists and Justices are free to effectively rewrite the freedom of speech and of the press clause to reflect their own libertarian views, then ours is no longer a government of the people, by the people and for the people, as Lincoln aptly put it. What we have is a judicial oligarchy accountable to no one. We therefore urge you to nominate a person who understands the importance and limitations of the Supreme Court and who will heed the warning enunciated in Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, at 102-103 (1973): “Thus, in evaluating the First Amendment claims … we must afford great weight to the decisions of Congress … Professor Chafee aptly observed: “˜Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.’” We close with the following observation (and supporting evidence) and a prayer. It isn’t the American people who are clamoring for more pornography on the Internet and in their communities and for more sex (including pornography), vulgarity and violence on TV. In March 2002 and March 2004, Morality in Media commissioned Wirthlin Worldwide to ask a question in a national survey about enforcement of federal Internet obscenity laws. 82% adult Americans surveyed in March 2004 said federal laws against Internet obscenity should be vigorously enforced. In the March 2002 survey, 81% said yes to that question. In 1997, MIM also commissioned Wirthlin to ask a question about enforcement of all federal obscenity laws. 80% of adult Americans said Federal obscenity laws should be vigorously enforced. In November 2003, the U.S. Senate, by unanimous consent, also passed Senate Concurrent Resolution 77, which states in part, “it is the sense of Congress that Federal obscenity laws should be vigorously enforced throughout the United States.” According to a poll conducted by Harris Interactive for Morality in Media (April 2005), 53% of adult Americans said the FCC is doing a “poor job” of maintaining community standards of decency on broadcast TV, particularly from 8 pm to 10 pm. More than twice as many adults believed the FCC is doing a “very poor” job (33%) versus a “very good” job (15%). According to a Pew Research Center survey (April 2005), 75% of adults favored “stricter government enforcement of decency rules when children are more likely to be watching TV.” According to a Time magazine poll (March 2005), 53% of adult Americans said that in controlling the amount of sex and violence on TV, “the government should be more strict.” May God give you wisdom as you make this decision so crucial for the well being of our nation. Sincerely, Robert Peters, President of Morality in Media Phil Burress, President of Citizens for Community Values Charlie Butts, Religion Editor, USA Radio Network Gregory Carlin, Director of Irish Anti-Trafficking Coalition Dr. Victor B. Cline, Psychologist and Professor Emeritus, University of Utah Janet L. Folger, President of Faith2Action Rabbi Hersh Ginsberg, Director of Union of Orthodox Rabbis of the United States & Canada Joe Glover, President of Family Policy Network Rabbi Abraham Hecht, President of Rabbinical Alliance of America Donna M. Hughes, Ph.D., Professor of Women’s Studies Program, University of Rhode Island Dr. Dennis Jarrard, Former Chairperson, Archdiocese of Los Angeles Commission on Obscenity Bill Johnson, President of American Decency Association Bill Kelly, FBI Special Agent (retired), Obscenity Investigator James Lambert, Author of Porn In America Jan LaRue, Chief Counsel and Legal Studies Director of Concerned Women for America Mary Ann Layden, Ph.D., Co-Director, Sexual Trauma Program, University of Pennsylvania Laura Leder, Editor of Take Back the Night Rabbi Yehuda Levin, Jews for Morality Michael J. McManus, President of Marriage Savers, and a Columnist (“Ethics & Religion”) Tom Minnery, Vice President Government & Public Policy of Focus on the Family Penny Nance, President of Kids First Coalition Tony Nassif, Founder and President of Cedars Cultural & Educational Foundation C. Preston Noell, President of Tradition, Family, Property, Inc. Thomas R. Rodgers, Detective Lieutenant, Retired, Indianapolis Police Department Rick Schatz, CEO and President of National Coalition for the Protection of Children & Families Malcom E. Smith, Jr., Founder of Parents and Grandparents Alliance Jack Thompson, Attorney Patrick Trueman, Senior Legal Counsel, Family Research Council Robert T. Walsh, Managing Editor of Triumph (national Catholic newspaper) Richard R. Whidden, Jr., Executive Director of National Law Center for Protection of Children & Families Rev. Donald Wildmon, Founder and Chairman of American Family Association Tim Winter, Executive Director of Parents Television Council Roger T. Young, FBI Special Agent (retired), Obscenity Investigator State and Local Organizations Paul Caprio, Family-Pac Illinois Dorn Checkley, Director of Pittsburgh Coalition Against Pornography Micah Clark, Executive Director of American Family Association of Indiana Rita Covelle, President of Morality in Media of Massachusetts Carl K. Crowe, State Director of American Family Association of New Jersey Loretta Detamore, President of Morality in Media of Muskegon (Michigan) William Devlin, Urban Family Council of New York City Dallas D. Erickson, President of Montana Help Our Moral Environment Michael Geer, President of Pennsylvania Family Institute Gary Glenn, President of American Family Association of Michigan Dom Gordon, President of Morality in Media of Wisconsin Bruce Harpel, Senior Pastor of Maranatha Christian Church (Minneapolis) Michael S. Heath, Executive Director of Christian Civic League of Maine Jim Hill, President of American Family Association of Oregon Harris Himes, Harris Himes, Chairman of Montana Family Coalition Don Kohls, Chairman of Omaha for Decency (Nebraska) Peter LaBarbera, Executive Director of Illinois Family Institute Msgr. James P. Lisante, Pastor St. Thomas Apostle Church, (New York) Christopher Manion, Ph.D., Founder of PURITY (Virginia) Peggie Lauber Miller, President Good News Together We Stand (Pennsylvania) Kristian M. Mineau, President of Massachusetts Family Institute Tom Minnery, Vice President Government & Public Policy of Focus on the Family Len Munsil, President & General Counsel, Center for Arizona Policy Robert Regier, Executive Director of South Dakota Family Policy Council Frank Russo, President of American Family Association of New York Arlene Sawicki, Project Coordinator of Citizens for Community Values (Illinois)