The World and Everything in It: June 19, 2023
On Legal Docket, the last oral argument of the term; on the Monday Moneybeat, listener questions about economics past and present; and on the World History Book, the first typewriter gets patented. Plus, the Monday morning news
PREROLL: The World and Everything in It is made possible by listeners like us. Hi, I'm Gabriella Moore. I'm homeschooled and going into my junior year of high school. I live in Jefferson County, West Virginia. I listen to The World every morning when I'm getting ready to start my day. I hope you enjoy today's program.
MARY RIECHARD, HOST: Good morning! Can a Russian citizen sue in American courts under U.S. racketeering laws? It kind of matters what happened and where it happened.
VINCENT LEVY: The injury here is a failure to pay. That was felt at Mr. Smagin's wallet in Russia.
NICK EICHER, HOST: That’s ahead on Legal Docket. Also today the Monday Moneybeat, economist David Bahnsen answers listener questions on whether the New Deal made the Great Depression worse, and the proper way to measure the economic effectiveness of boycotts.
And the WORLD History Book. Today, an anniversary milestone for a communication technology.
KRISTEN GALLERNEAUX: In order to become an expert typist, it is essential to master the correct typing technique.
REICHARD: It’s Monday, June 19th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.
EICHER: And I’m Nick Eicher. Good morning!
REICHARD: Now the news with Kent Covington.
KENT COVINGTON, NEWS ANCHOR: Blinken China » In Beijing, it is day-two of high level meetings for Secretary of State Tony Blinken.
He’s trying to cool escalating U.S.-China tensions. Blinken said the first priority is to make sure the two world powers communicate clearly and openly.
TONY BLINKEN: To avoid as best possible misunderstandings and miscommunications. Because, if we want to make sure, as we do, that the competition we have with China doesn’t veer into conflict, the place you start is with communicating.
Blinken sat down on Sunday with Chinese Foreign Minister Qin Gang. Today, he'll meet with China's top diplomat Wang Yi and possibly Chinese leader Xi Jinping.
Juneteenth » All federal - and many state - government offices will be closed today in recognition of the Juneteenth holiday.
It marks the day that the last slaves of the Civil War learned of their freedom on June 19th, 1865.
Willowbrook shooting » But at least one family is mourning today after a shooting at a Juneteenth event on Sunday.
Someone opened fire on a crowd of hundreds who had gathered in Willowbrook, Illinois to celebrate the holiday a day early. One person was killed and 22 others were wounded.
Police did not immediately announce any arrests, and the motive for the shooting is unclear.
Biden kicks off re-election » President Biden kicked off his campaign over the weekend in Pennsylvania.
JOE BIDEN: I need you badly. So are you with me? [Applause] Good!
Biden heard there making his pitch to union workers in Philadelphia. Some of the nation's biggest labor unions have officially endorsed the president.
BIDEN: There are a lot of politicians in this country who can't say the word union. You know I'm not one of them. I'm proud to say the word. I'm proud to be the most pro-union president in American history.
Biden also called for tax hikes on corporations and wealthy Americans, saying it’s time for them to start paying what he called their fair share of the nation’s taxes.
Pence » Meantime, another presidential candidate, former Vice President Mike Pence took aim at the Justice Dept. over its indictment of former President Trump. He told NBC’s Meet the Press:
MIKE PENCE: It’s hard for me to believe that politics didn’t play some role in the unprecedented decision to bring an indictment against a former president.
But that does not mean he believes Donald Trump is fit to return to the White House.
PENCE: No one who puts themselves over the Constitution should ever be president of the United States. And I had hoped that President Trump would eventually see that he had been misled by the so-called legal experts that had advised him wrongly about the role that he thought I had and still thinks I had that day.
Trump has repeatedly blasted Pence for certifying the 2020 election results, insisting he had the authority to decertify the results and send them back to the states.
Ukraine » Russia and Ukraine are both suffering heavy casualties as Ukrainian forces ramp up efforts to beat back Russian invaders.
AUDIO: Konashenkov Speaking Russian
Russian Defense Ministry spokesman Igor Konashenkov claims Ukrainian forces have failed to gain ground against Russian defenses, especially in the Zaporizhzhia region.
But one local, Moscow-appointed official in the region said Ukrainian forces are in fact making progress.
Meanwhile the leader of Russia’s mercenary Wagner Group says 32,000 former Russian prisoners returned home with their freedom after serving a half-year tour with his group.
ACLU » The ACLU is drawing heavy criticism over a tweet about a recently executed convicted murderer. WORLD’s Josh Schumacher has more.
JOSH SCHUMACHER: The state of Florida executed Duane Owen last week for two murders.
While in prison, Owen declared that he identified as a woman. And the ACLU tweeted the following over the weekend. Quoting here:
“The state of Florida never provided medically necessary gender-affirming care to Duane Owen — causing her enormous suffering and violating her right to be free from cruel and unusual punishment.”
In separate home invasions, Owen raped and murdered a 14-year-old girl and murdered a 38-year-old mother of two with a hammer.
For WORLD, I’m Josh Schumacher.
Boycotts » Bud Light maker - Anheuser-Busch, Target, and Kohl’s, collectively, have now lost roughly $29 billion dollars in market value amid boycotts. Customers revolted over Pride campaigns and LGBT activism by the companies.
Kohl’s stock has started to recover, but stocks of Target and Anheuser Busch are still down sharply.
A marketing campaign featuring a transgender influencer sparked the Bud Light boycott.
Both Target and Kohl’s sold LGBT items aimed at children. Target also sold a transgender swimsuit created by a designer who also produced items with expressly satanic messages.
I’m Kent Covington.
Straight ahead: the last oral argument for this term of the Supreme Court. Plus, the Monday Moneybeat.
This is The World and Everything in It.
MARY REICHARD, HOST: It’s Monday, June 19. Thanks for joining us for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
We’re down to the final two weeks of our June Giving Drive. One of two times of the year where we ask you to renew your support to strengthen sound journalism grounded in facts and biblical truth.
REICHARD: Nick, I think it’s important to emphasize where those dollars go, and it’s very practical. I’m talking things like microphones, recorders, cables, computers, licensing, even the music you’re hearing right now. Even the music you just heard. That has to be licensed and that takes money.
EICHER: Right, and we license software to do audio and video editing, web services to publish online content and to deliver podcasts to you. There are licensing fees to news wires we need for photography, audio, and video for some stories we can’t get to in person.
REICHARD: And for the stories we can get to, those are out in the field, so we have to go get them. That means plane tickets, rental cars, hotel nights.
Besides all that, reporters have to be paid, as do editors and producers and engineers. And they work long, hard hours because they love what they do. So often they go above and beyond. They volunteer their time to teach WJI and run internship programs, because they squeeze that work in while doing their regular jobs.
So there’s much more to this than meets the ear.
EICHER: And we could of course go on, because it takes many people to support all this work and we’re grateful to each one. But the point is, we have more than 100 people all rowing in the same direction, working to honor Christ in the profession of journalism, and all of that depends on you. So I hope you’ll think about the value WORLD is to you, and of course it has to fit your budget. We know you have serious responsibilities of your own, you have families to support, and in your charitable giving, your church comes first. But beyond that if you’re able, I hope you’ll consider your part in this June Giving Drive.
REICHARD: Please go to wng.org/donate. That stands for World News Group. wng.org/donate. And thank you.
EICHER: It’s time for Legal Docket.
The U.S. Supreme Court handed down five opinions last week. We’ll cover those as well as one oral argument today.
REICHARD: That’s right. In a 7-2 decision, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act. That’s a federal law that aims to keep Indian children who enter foster or adoptive care with Indian families.
In this case, a white couple caring for an Indian child sued, joined in the effort by the child’s biological mother and others. One argument centered on the 10th Amendment: that prevents the federal government from issuing commands to the states.
The Supreme Court held the Indian Child Welfare Act doesn’t violate the 10th Amendment because the law applies evenhandedly to both states and private actors. The court declined to address the merits of a separate challenge that centered on racial discrimination.
You can hear the eventual decision in this from Justice Elena Kagan during argument in November:
JUSTICE KAGAN: Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity. And that's, in fact, one of the reasons it passes this statute, is the political entity is itself being threatened because of the way decisions on the placement of children are being made.
EICHER: The second decision arises from a case we covered last week related to a Native Tribe and bankruptcy. A band of Chippewa Indians made a loan of 11-hundred dollars to a man who later filed for bankruptcy. At that point, the law requires debt-collection efforts to stop.
But the tribe kept trying to collect. It argued tribal sovereign immunity. Meaning, it’s not subject to the Bankruptcy Code the way state and federal governments are.
The high court disagreed in an 8-1 opinion. The definition of governmental unit in bankruptcy law shows Congress intended it to be a catchall phrase, and that means it includes federally recognized tribes.
REICHARD: In another 8-1 opinion, the court ruled against an employee who thought his company was committing Medicare fraud. The employee brought a legal action that allows a whistleblower to sue on behalf of the government and then receive a portion of the award.
The government investigated the claims, waffled about whether to intervene, then eventually moved to dismiss the case, over the employee’s objections. The court held that the government can intervene at any point, and once it does, it has unilateral authority to dismiss the case.
EICHER: Next, a unanimous decision by the Supreme Court in a double jeopardy case.
Here, a computer scientist hacked into a private company’s website and stole information. He was found guilty. But as it turned out, the trial venue was improper. In other words, that the wrong district court held the trial.
The defendant made the argument that to retry him in the proper district court would violate the double-jeopardy clause of the Constitution. But the Supreme Court disagreed. It said that the reason for the second trial here is unrelated to the defendant’s guilt or innocence, so it’s okay to go after him again, in the proper place.
REICHARD: That was the case where Justice Sonia Sotomayor called the case law a “mixed up platypus.” So, now there’s some clarity.
The final opinion is also unanimous. It revolves around a man who committed a crime that resulted in multiple convictions. Efrain Lora was sentenced 25 years for one set of crimes and five years for another. Lora wants his sentences to run concurrently and not consecutively. In other words, 25 total, not 30. And federal judges do typically have discretion to allow that.
But not here. The court held that the relevant statute requires his sentences to run consecutively, so he’ll serve 30 years.
EICHER: Alright, now on to the final oral argument we’ll cover of the term! Legal correspondent Jenny Rough joins us to talk about that. Hi, Jenny!
JENNY ROUGH, CORRESPONDENT: Hi, Mary and Nick. Well, this case involves the RICO Act. That’s the Racketeer Influenced and Corrupt Organizations Act.
I talked with an international expert on the RICO act named Jeff Grell. He explained that Congress passed the act in 1970 to go after the Mob, the Don Vito Corleones of the world, the guy who manages the criminal enterprise, but at a distance, sitting in his office petting his cat instead of getting his hands bloody.
This guy doesn’t know the exact details of the murder or bribery or extortion needed to carry out his demands. RICO was just what was needed to establish the guilt of someone like that. But a statute that confers guilt on a person who didn’t overtly commit the act was a novel concept in criminal law.
REICHARD: Well, the RICO statute also allows for private actors to cast a wide net in civil cases. And that’s the case today.
The main characters are Russian citizens by the names of Vitaly Smagin and Ashot Yegiazaryan. Smagin owned shares in a joint real-estate project, but Yegiazaryan was able to steal them and flee the country. Ever since, Smagin has been chasing Yegiazaryan around the world trying to recover the stolen money. First, Smagin obtained an $84 million arbitration award in London. But Yegiazaryan failed to pay.
Yegiazaryan now lives in California. So Smagin pursued him in U.S. courts. A district court in California confirmed the London arbitration award and entered a judgment to allow Smagin to collect on the debt.
So that’s lawsuit number one.
ROUGH: The second one is where RICO comes in.
In this one Smagin says Yegiazaryan hid his assets with relatives in California and made fraudulent conveyances to try to make himself judgment proof.
So Smagin brought a RICO claim against Yegiazaryan.
But under the statute, a foreign plaintiff can only bring a private RICO action in the U.S. if he’s suffered injury in the U.S., a domestic injury. That’s the legal question here: What constitutes a domestic injury?
Yegiazaryan argues Smagin lives in Russia, so he didn’t suffer a domestic injury. His injury happened over there.
Here’s Vincent Levy arguing for Yegiazaryan before the Supreme Court:
VINCENT LEVY: Considering the plain text, the Court's precedents, and the common law, it is clear that a civil RICO plaintiff is injured at its domicile. The common law instructs that the nature of the property here being intangible, it's a judgment and a debt, it follows the person of the plaintiff creditor, and that is where it is located. So the injury here was in Russia and not the United States.
Chief Justice John Roberts asked about all the ways the case touches on activities that did occur in the U.S.
JUSTICE ROBERTS: Well, here the plaintiff obtained a California judgment to collect California property against someone living in California based on conduct in California. Why can't we consider, with all those connections, that that's a domestic injury?
LEVY: A property right that is intangible, such as a debt, follows the creditor, and it does not matter that the debt can be enforced in California. The injury here is a failure to pay. That was felt at Mr. Smagin's wallet in Russia.
On the other side, Nicholas Kennedy argued for Smagin. He said such a bright-line rule leads to absurd results. Instead, the RICO statute should be interpreted to focus on Yegiazaryan’s domestic conduct that caused Smagin’s injury. You can’t divorce the two.
NICHOLAS KENNEDY: This case is deeply domestic on both fronts. First, the conduct. The RICO violations occurred in California. The scheme was orchestrated by an international fugitive living in Beverly Hills. Second, the property. This RICO enterprise targets a California judgment against California debtors that confers rights only in California.
Justice Elena Kagan said circumstances giving rise to this case seem odd.
JUSTICE KAGAN: Yes, there's a California judgment and acts. But all of that is derivative on a dispute that was fundamentally foreign in nature between foreign parties involving foreign conduct initially adjudicated in another foreign country. So the fact that this has migrated, if you will, to the United States, you know, comes about only with respect to enforcing the first judgment.
True, Kennedy said. But it can’t be that only one side of the law would apply to the defendant, the side in his favor.
KENNEDY: You're correct, Your Honor, that the original arbitration award was the genesis of a, came from a foreign dispute. But that's not dispositive here. Mr. Yegiazaryan moved to California and has lived in California, enjoying the benefits and the protections of U.S. law for over a decade.
But Justice Kagan kept pushing.
JUSTICE KAGAN: Would you agree that your test is harder to apply than your friend's? It might make more sense, but it sounds a lot harder to apply.
KENNEDY: I do agree that a test that is context-specific, is slightly harder to apply than a bright-line test. But our cases tell us that, and history tells us, that while bright-line rules may be desirable, they’re not desirable when they violate precedent or the statute's text. And the bright line here does that.
There’s a lot of money at stake here. Not only the $84 million dollar arbitration award. Successful RICO claims allow for triple damages.
Given the defendant’s crafty ways of gaming the system and the courts for years, this treasure hunt must be frustrating for plaintiff Smagin.
My RICO expert told me that in our transient world and modern economy, the idea of looking solely to where the plaintiff resides no longer makes sense.
But historically, that’s how the law’s been applied. We’ll soon learn what the justices decide.
That’s this week’s Legal Docket. I’m Jenny Rough.
MARY REICHARD, HOST: Coming up next on The World and Everything in It: The Monday Moneybeat.
NICK EICHER, HOST: Time now to talk business, markets, and the economy with financial analyst and advisor David Bahnsen. David, of course, is Head of the wealth management firm, the Bahnsen Group. He is here now. And good morning to you, David.
DAVID BAHNSEN: Good morning Nick, good to be with you.
EICHER: All right, David. The Fed met last week and did exactly as you and just about everyone expected. And that is, it hit a pause on interest rate increases. We’ll have to see what happens at the next meeting at the end of July. But let’s talk about what Chairman Jay Powell said in his press conference, his statement. What’d you take away from that?
BAHNSEN: I basically took away from it—I think everyone did—that it wasn’t really a statement. It was multiple statements that were either accidentally or purposely incoherent as well as very contradictory from one another.
On one hand, he talked about why they paused in hiking rates. On the other hand, you had two Fed governors predicting that there would still be two more rate hikes by the end of the year. On yet another hand, he talked about economic growth coming back. So there was sort of a little bit of everything in it; something for anyone who wants to interpret anything.
The market definitely responded favorably. I am more of the opinion, once again, that even though the futures are showing about a 65% chance of hiking at the end of July, which is four to six weeks away. There’s a lot of data that will come in, but both the CPI and PPI numbers this week, along with the inflation numbers and indexes for consumer and producer prices, give me overwhelming reason to believe that the Fed is about to be done. And then claiming all this as being a war on inflation is not making any sense anymore at all.
EICHER: OK, one last news item before we get to listener questions, David. President Biden hosted some executives at the White House last week and the issue was hidden fees on things like AirBNB rentals and tickets to concerts and sporting events, so-called “junk fees.” The president wants companies to get rid of those voluntarily and reflect an all-in price, instead of little tack-ons at the end of the transaction. And he’s talked about legislation to enforce this if companies don’t comply voluntarily.
So give us a “no free lunch” analysis of proposals like the no junk-fees initiative.
BAHNSEN: Well, that’s a wonderful question. And it’s a very important question for setting future economic policy, because economic history has a lot to do with how people think about policymaking in the future. There is absolutely no ambiguity here that those who believe the New Deal and large government programs in the mid-1930s brought us out of the Depression are wrong, and they are decidedly wrong. 1938 is the great example; we essentially doubled the Depression in 1938 after the New Deal implementation. Even hyper liberal left-wing economist Paul Krugman has acknowledged that it was not the New Deal that brought us out of the Depression, but instead America going into the World War Two and the large ramp up of industrial activities to prepare for the war which caused us to exit the Depression.
I don’t happen to agree with that explanation much either. But unfortunately, the victors get to write the history books, and the left-wing, Keynesian side of economics won that period in time, and they have spent the last 80 years saying that the Depression ended because of the New Deal. But I very much disagree.
And I would recommend to you Amity Shlaes’ remarkable book “The Forgotten Man.” I certainly believe that some of the New Deal programs were better than others; some were perhaps more justifiable than others. But the general idea that the government spending money it didn’t have to launch various expansions of federal government projects was the source of increased aggregate demand has been refuted in my mind by very economically cogent people, not just Amity Shlaes. Historically, I think a better understanding of what was happening in monetary policy came from Milton Friedman and Anna Schwartz in the 1960s. But no, it is imperative we understand that market solutions that come from prices resetting—and there’s a whole kind of complex explanation that does not require magic of spending government money that doesn’t exist—that is a far more sensible way to end economic contractions.
EICHER: Okay, Morgan Buchek of Fairview, TX, writes,
“Hi David, I recently read on your blog that you are a student of American economic history, so I’m hoping you can bring clarity on one point.
I was taught in school that FDR’s New Deal government programs brought America out of the Great Depression. I recently read a book, however, called “FDR’s Folly”, that argued to the contrary: that FDR’s economic policies actually kept us in the Great Depression much longer than necessary. From your research, can you help us understand how to think accurately about this time in history?
So David, what do you say?
BAHNSEN: I’ve talked about this with you before on the podcast. Sometimes when a stock price drops, that’s a reference to the market cap. It could very well be both-and to what he’s talking about: The market cap of the company is dropping because of the expectation that revenues or earnings will be dropping. And yet, there’s also other explanations that could be causing the stock price to drop. And I’ve tried to point that out with Target. In this particular quarter where Target stock price dropped a lot, it did definitely correlate with the controversy around some of their activities that people were boycotting against.
But other competitors of Target were seeing their stock price drop too that were not caught up in the culture war issue. So it gets difficult to kind of assess and exact causation.
And I agree that a revenue drop from a company that is not also accompanied by a revenue drop in their competitors gives you more clear evidence whether there is a boycott impacting things. I don’t think it’s ultimately a clear black-and-white issue with Anheuser Busch. The stock price was dropping, but it was dropping because there was clear forward-looking evidence that even though formal revenues had not been disclosed in a quarterly report, suppliers of Anheuser Busch were saying, “We’ve seen our orders drop by 20% 30%, etc.”
So there’s two different battles being waged here. There’s what shareholders may be doing to try to seek engagement with companies. And then of course, there’s what customers may be doing. Some—and in fact, over history, most—customer boycotts have been really big failures. But organized well enough, and with enough size, scale, and motivation, some customer boycotts and change in consumer activity has been very effective. So I just don’t think this leads to an answer that could ever be not nuanced.
EICHER: All right, well, let's go to our final question. Timothy McCandliss of Fort Walton Beach, Florida, he writes,
“Media reports surrounding boycotts of Target and other companies over LGBT issues often use lost market value to measure the boycott's impact.
For context, it seems market value (or market cap), is just a reflection of market sentiment and can balloon or reappear as quickly as it can evaporate. As such, the media coverage seems to be sensational but not relevant. Lost revenue seems like the most obvious metric to use.”
So David, what is the best way to measure?
BAHNSEN: Well, I've talked about this with you before on the podcast that sometimes when a stock price drops, that's a reference to the market cap, it could very well be both-and to what he's talking about, that the market cap of the company is dropping because of the expectation that revenues or earnings will be dropping. And yet, there's also other explanations that could be causing the stock price to drop. And I've tried to point that out with Target that in this particular quarter where Target stock price dropped a lot, it did definitely correlate with the controversy around some of their activities that people were boycotting against. But other competitors of Target were seeing their stock price drop too that we're not caught up in the culture war issue. And so it gets difficult to kind of assess and exact causation. And I agree that a revenue drop from a company that is not also accompanied by a revenue drop in their competitors gives you more clear evidence that there was a boycott impacting things. So I don't think it's a clear black and white line ultimately with Anheuser Busch. The stock price was dropping, but it was dropping because there was clear, forward looking evidence that even though formal revenues had not been disclosed in a quarterly report, suppliers of Anheuser Busch were saying we've seen our orders drop by 20% 30%, etc. So there's two different, you know, battles being waged here. There's what shareholders may be doing, to try to seek engagement with companies. And then of course, there's what customers may be doing. Some, and in fact, over history, most customer boycotts have been really big failures, but organized well enough and with enough size, scale, and motivation, some customer boycotts and change in activity has been very effective. And so I just don't think this leads to an answer that could ever be not nuanced.
David, thanks, I hope you have a great week!
BAHNSEN: Thanks so much, Nick.
NICK EICHER, HOST: Today is Monday, June 19th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Coming up next, the WORLD History Book. Last week listener Brent England from Atwater, California wrote in to remind us that June is not only our annual summer fundraiser, but it’s also National Dairy Month. Brent, thanks for the heads up. So if you are a dairy farmer listening this morning, I love ice cream! Thank you, you wonderful person.
EICHER: Now on to History Book. Just two entries today: 50 years ago this week a landmark Supreme Court decision regarding obscenity. But first, a communication milestone. Here is WORLD Radio executive producer Paul Butler.
PAUL BUTLER, REPORTER: 150 years ago, sewing machine and gun-maker Remington and Sons began mass production of their Sholes and Glidden Type-Writer.
KRISTEN GALLERNEAUX: The typewriter has greatly influenced the business, commercial and economic progress of the nation.
Various mechanical type-setting devices had existed since the late 16th century. But they were specialized pieces of equipment—designed for one application—and often very cumbersome. In the mid-nineteenth century Milwaukee printer Latham Sholes and two of his coworkers figured out how to make it more universal, compact, and portable. The US government issued a patent for their improvements on June 23rd, 1868.
Kristen Gallerneaux is curator at the Henry Ford Museum of American Innovation. She spoke to CBS Mornings in 2019:
GALLERNEAUX: A typewriter is sort of a paradox because it has to be really heavy and you have to be able to bang away on the keys, right. But it's also a very precise machine. So it takes a really long time to figure out how to manufacture these things.
The Sholes and Glidden Type-Writer looks very similar to most of the typewriters that follow it. It standardizes the QWERTY keyboard layout … but a noticeable difference is that operators can’t see the letters as they type. The striking mechanism sits under the paper and cylinder instead of in front of it—meaning that typists have to lift up a tray to check their work.
Still, typewriters improve quickly and take off—changing industry, office work, and even personal correspondence. The ever present typewriter also creates a whole new area of specialized training.
GALLERNEAUX: In order to become an expert typist, it is essential to master the correct typing technique. How you type is more important than what you type.
With the emergence of word processing, typewriters were mostly replaced with desktop computers in the 1990s. But typewriters didn’t completely disappear.
TOM HANKS: That’s a dense, dense writing machine.
Thanks to a handful of old school authors and celebrity enthusiasts like Tom Hanks, analog typewriters are growing in popularity. People are rediscovering writing without all the distractions of open browser tabs, social media alerts, and search-engine rabbit holes. The once ubiquitous flea market fodder is again becoming big business.
Next, the 50th anniversary of a Supreme Court decision regarding obscenity.
In 1971 Marvin Miller sent out a mass-mailing to advertise his California adult bookstore. Miller was charged and convicted for “knowingly distributing obscene matter.” Miller claimed First Amendment protections, but the appellate court upheld Miller’s conviction. The Supreme Court agreed to consider the case in 1973.
During oral arguments on January 18th and 19th, Miller’s lawyer Burton Marks comes out swinging.
BURTON MARKS: There is a lot of pain in the trial in trying to work out the rules which have been established by this Court.
Marks accuses the court of contradicting itself with its previous obscenity laws and first amendment decisions.
MARKS: There is a new irreconcilable conflict between the decisions of this Court. Irreconcilable in the sense that they are logically inconsistent.
That inconsistency emerged across a few earlier cases. Roth v. United States was a 1957 decision that ruled obscenity was not protected under the First Amendment. Roth introduced the concept of community standards as a determination of what’s considered obscene.
In the 1966 case: Memoirs v. Massachusetts, the court sided with a Massachusetts bookseller after determining that an offensive book had some “redeeming social value” and was therefore protected speech. The court overruled community standards in this case.
In 1967 Redrup v. New York reversed dozens of previous obscenity rulings that had prohibited distribution of explicit paperback books—ending decades of censorship. Yet in 1971, Reidel v United States affirmed laws forbidding the distribution of obscene materials—while attempting to maintain the constitutional right for people to own such materials.
So in the 1973 Miller case, his lawyer argues for starting over.
MARKS: You can't resolve the decisions of this court and the various justices.
On June 21st, 1973, the Supreme Court releases its decision. It does set up clearer rules for lower court judges to consider when trying obscenity cases.
Writing for the majority, Chief Justice Warren Burger establishes a three-part test. First, would an average person applying contemporary community standards find the whole work raises an inordinate interest in explicit thoughts or behavior? Second, does the work depict or describe conduct in a patently offensive way? Third, taken as a whole, does the work lack serious literary, artistic, political, or scientific value? The Miller case maintains that if something fails these tests, and is ruled obscene, it is not protected speech under the U.S. Constitution.
The Miller decision tries to align the earlier obscenity laws into one standard—giving prosecutors and law enforcement greater discretion to label material obscene, even if it has some literary or artistic value. But community standards remain the guiding principle.
While at first the new standards are seen as placing greater restrictions on free speech, one of the unforeseen legacies of the Miller case is its reliance on community standards as the North Star. For as standards slide, things once considered taboo become mainstream—and are no longer labeled obscene, much to the detriment of our society.
That’s this week’s WORLD History Book. I’m Paul Butler.
NICK EICHER, HOST: Tomorrow: Socialists in Spain got a surprise recently when conservatives came out ahead in the elections. What’s behind this shift to the right?
And, Elon Musk gets the green light for another one of his projects…giving humans brain implants to control technology with their thoughts. We’ll have a report on how it works and what the ethical implications are.
That and more tomorrow. I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. The World and Everything in It comes to you from WORLD Radio. WORLD’s mission is biblically objective journalism that informs, educates, and inspires.
The Bible says: Be sober-minded; be watchful. Your adversary the devil prowls around like a roaring lion, seeking someone to devour. Resist him, firm in your faith, knowing that the same kinds of suffering are being experienced by your brotherhood throughout the world. 1 Peter chapter 5, verses 8 and 9.
Go now in grace and peace.
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