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9. Freeing Up Speech · Dumb Defenses

• Frankie: Hello and welcome to the Dumb Defenses podcast, where we go around the world and through time to bring you the weirdest legal theories. I'm Frankie. Judah: I'm Judah and welcome to a fresh nightmare. Frankie: And I don't know if y'all could hear the daggers that Judo was shooting at me during our teaser last week, but we had discussed what we were gonna do this week, and then I saw a shiny and completely forgot what we had discussed. So we'll bring you that hearsay case at some point in the future. I am doing a different case today. Judah: Okay. Yipa ba da ba ba. Frankie: So I guess I'm I'm going first. Judah: Yeah, well I mean so I'm doing McCarthyism ish, which and you are doing what? Frankie: I'm doing obscenity. Judah: Obscenity. if you're gonna reference what I think you're gonna reference, it's one of my favorite quotes in like jurisprudence. Frankie: Yeah. Yep. Shall we dive in? All right. Judah: Let's dive in. Frankie: I will be telling the tale of Mr. Nico Jacobellis versus Ohio. My sources are the original source material, which is three seventy-eight US one hundred eighty four, a SCOTIS case from nineteen sixty four, and Cleveland Historical dot org, which had information about the Heights Art Theater. written up by Michael Rottman. So the theater, which was originally called the Heights Theater, was the theater issue in this case It's a movie theater on Euclid Heights Avenue in Cleveland Heights, Ohio. In 1922, the movie theater there got rated when it showed a movie on a Sunday. five hundred patrons were cleared out from the theater and two managers and a projectionist were arrested for violating Ohio's blue law, which prohibited any kind of entertainment on the Sabbath. So this theatre has a long history of run ins with the law. The blue law at that point was repealed in nineteen thirty-one, which was the same day that nine thousand Cleveland Heights residents succeeded in petitioning to have the city ordinance changed to allow Sunday viewings. that was some background on this theater and how this theater is not afraid of doing things that may or may not be against the law. In 1954, the theater was renamed to the Heights Art Theater, in which they changed their focus to, quote, only distinguished motion pictures of international prestige. One movie they showed, which was lauded as the theater's peak from a publicity perspective, was a French firm called Les Aimants, or The Lovers. Came highly acclaimed from Europe. It was about a married woman's love triangle, which was a very risque topic for nineteen fifty four. the married woman had become bored with her married life and abandons her husband and children for a young archaeologist that she has fallen in love with. The movie also contained a two second shot of a breast in the midst of an explicit love scene. This would be the objectionable scene in the movie. So there was a review in the Cleveland Plain Dealer, which was a local weekly newspaper. They called the movie shockingly nasty. Judah: Ooh shocking. Frankie: the city's law director and the Cayuga County Prosecutor both watched the movie and then after they watched it they discussed it with the chief of police, Edward Gaffney. Believing the film violated Ohio's obscenity laws, Chief Gaffney went to the Heights Art Theater on November thirteenth, nineteen fifty-nine, during a showing of the movie and ordered the theater cleared, the film confiscated, and Nico Jacobelis, the theater's manager, arrested. I love how instead of just like going in on off hours and arresting him, he goes in and watches the movie first. Right? That Judah: You gotta see that boob. Gotta see the boob. Frankie: The two seconds of boob. Judah: I I need to see the boob for myself. Frankie: Probable cause. Gotta find that probable cause. Mr. Jacob Ellis was an Italian immigrant who studied and taught film at Western Reserve University, which people may now know as Case Western Reserve University in Hudson, Ohio. His defense largely relied on following the theater owner's directives, as owners had screened the film in other cities without issues. The I was just following orders. Defense is not the best defense in general. We may talk about cases in which that did not work out for people, but that's what we're dealing with here. Mr. Jacob Ellis was charged with two counts of possessing and exhibiting an obscene film from the Ohio Revised Code, section 2905.34. I'm gonna read this section of the code. It is long and repetitive, but also kind of funny. No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away, or exhibit, or publish, or offer to publish, or have in his possession or under his control an obscene, lewd, lascivious book, magazine, pamphlet, paper, writing, advertisement circular, print, picture, photograph, motion picture, film, or book, pamphlet, paper, magazine, not wholly obscene, but containing lewd or lascivious articles, advertisements, photos, or drawing, representation, figure, image, cast, instrument, or article of an indecent or immoral nature, or a drug, medicine article or thing intended for the prevention of conception or for causing an abortion, or advertise any of them for sale, or write, print, or cause to be written or printed a card book, pamphlet, advertisement, or notice, giving information when, where, how, of whom, or by what means of any such articles or things can be purchased or obtained, or manufacture, draw, print, or make such articles or things to sell, give away, or show to a miner a booklet, pamphlet, magazine, newspaper, story paper, or other paper devoted to the publication or principally made up of criminal news, police reports, or accounts of criminal deeds or pictures, and stories of immoral deeds or lust or crime, or exhibit upon the street or highway, or in a place which may be within the view of a miner, any such books, papers, magazines, or pictures Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years or both. Judah: So it's a felony because it's punishable by more than a year in prison. Frankie: Correct. Judah: It is also weaving in a lot of anti abortion. But the thing about like you can't have Frankie: Mm-hmm. Judah: crime reports Frankie: Yeah, it was weird. it's definitely like the people in the legislature were sitting there going, How many ways like how clear can we be about this? And in doing Judah: I I'm Frankie: so, they've created a law which probably has more loopholes than they meant. Judah: Yeah, 'cause right in there I could have a dirty audio recording. Frankie: Mm-hmm. Judah: That's not included in there. I could have as many dirty audio books in the state of Ohio as I want. Frankie: and you can sell them because that's not it's only talking about print or or movie. It doesn't say anything about audio recordings. yeah. Yeah, it Judah: What about like a live nudie cutie? It's not in there. Frankie: doesn't talk about that either. doesn't talk about prostitution or anything like that. it just is focused on written materials and movies. Judah: Okay, so we have this wide law that encompasses like abortion materials, advertising for abortion materials, Frankie: And dirty movies. Judah: dirty movies, and reports of criminal activity or reports of loot or lascivious conduct. Frankie: Yeah. Yeah. That one he was just kinda thrown in there for fun, I guess. Judah: Yep. Frankie: You know, just let's just toss that in there. so yeah, Judah: Okay. Frankie: so he was charged of two counts under this statute. he waived jury and the trial was heard by a panel of three judges. it was a lengthy spectacle of a trial. With dueling film critics, clergymen, and university professors testifying. But Mr. Jacobellis was ultimately found guilty on both counts and fined $2,500 in total, which is $28,690.3 in today's money. Between the two counts, he got five hundred for the first count and two thousand for the second count. and if he failed to pay those fines, he would be sentenced to the workhouse, which I assume is some sort of work transit alternative to prison. little bit. Judah: So if you have enough money you can see as many boobs as you want. Frankie: yeah, eventually you'll wind up in prison though. it's less the being the recipient of it. I guess you could get in trouble for possessing it as well, but if somebody else showed it to you, I don't think th the person viewing it would get in trouble. It's just the person distributing it. Judah: Okay. What about like a flip book where no one page is dirty but you put all together and sturdy? Frankie: I think that's still printed pamphlet, maybe? Judah: I know but like you can't point to one page and say that's a dirty image. Frankie: But it said any whole or in part. Right? Judah: okay. Okay. No dirty flip books. Frankie: Yeah, no dirty flip books. So the Ohio Intermediate and Appellate Supreme Courts both upheld the conviction and then he appealed it to SCOTUS. Because if your case goes all the way up to your state supreme court and there's an issue of federal constitutional muster, in this case it would be a free speech, then you can then appeal that state court opinion up to the the Supreme Court of the United States to deal with the the US constitutional issue. The question presented at SCOTIS was quote whether the state courts properly found that the motion picture involved a French film called Les Aimants or The Lovers was obscene and hence not entitled to the protection for free expression that is guaranteed by the first and fourteenth amendments. First amendment, free speech, free press, etcetera. Fourteenth Amendment incorporates the Bill of Rights to the states. So due process Judah: Due process clause. Frankie: clause, so that All of the free speech and everything that the federal government cannot impinge on also means the state government cannot impinge on. So, while movies are generally protected by free speech, obscene movies are not. The court acknowledged that they would need to discern the quote dim and uncertain line, end quote, between obscenity and constitutionally protected speech. In theory, this is a question of fact for the jury. Scotus briefly entertained that theory that it was a question of fact for the jury. Because, quote, it would lift from our shoulders a difficult, recurring, and unpleasant task, end quote. They quickly rejected that because it's SCOTIS's duty to ensure constitutional protections. They were essentially like, we could take the easy way out and just dump this back to the state courts, but it's our duty. It's our duty to deal with these hard questions. The rule for determining obscenity was written seven years prior in a case named Rothby, United States. That rule was, quote, whether to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest, end quote. Judah: god, pure prurient interest. Prurient interest. Frankie: Prorient interest. for those who don't know what that means, because that is kind of a thousand dollar word, it essentially means sexual interest. It arouses people. Scotus recognizes that it's not a perfect test, but it's better than the alternatives, so they follow it with clarifications. Roth also defined obscenity in material as quote utterly without redeeming social importance, end quote. They indicated that the mere portrayal of sex in art, literature, or science doesn't remove it from constitutional protection. And they also deny balancing tests that would weigh social importance against a pure interest. I cannot pronounce that word. it has more R's Judah: It's got more R's than you think are supposed to be. Frankie: than than should be. so essentially, just because there's sex somewhere, for example, you know, an obstentrics and gynecology textbook, right? There's going to be some sexual images there. There's going to be a picture of a vagina and a vulva and all that stuff. The mere existence of that picture of intimate parts does not make that textbook obscene. Right? There has to be that prurient interest, that purpose of sexual arousal in order for it to be obscene. balancing tests are a way that a court frequently deals with things. being like, we have these interests on one side and these interests on the other side and we need to figure out which one outweighs the other. They deny that in this, because social importance versus prurient interest is a hard one to balance, I guess. there wasn't really a clear Judah: Are they saying that this is a bright line rule? 'Cause it certainly isn't. So how Frankie: It's not a bright line rule. It Judah: is it not a balancing test is my question. Frankie: Yeah, we'll explore that a little bit as we go along. So, in their decision, SCOTIS notes that the model penal code has a requirement that material, quote, goes substantially beyond customary limits of candor in description or representation of such matters. Again, we're not just talking about like describing sexual parts or anything like that. It has to be like beyond the pale, essentially. and that model penal code was coming up kind of around the same time as this case was, and so that's why they're looking at that to help them define it. What they were struggling with in Roth was the contemporary community standards issue. And in this case, in Jacobellis, they felt that the contemporary community standards cannot mean that it's based on specific local communities, because that would give varying standards of the law, right? They didn't specifically call out the Equal Protection Clause, but the Constitution also has an Equal Protection Clause, which means that regardless of where you are in the United States, regardless of what community you're in, either like physically or socioeconomic or racial or what have you, the laws should apply equally to everybody. and they didn't specifically say that this is an equal protections issue, but they're kind of saying it's an equal protection issue. Issue. Because if, just using Oregon as an example, something that is not considered obscene in Portland may be considered obscene in Lakeside, right? Like just the different areas of the state have different local tolerances for. Naked bike rides as one example of something that happens in Portland every year. Judah: And I will say nothing sexual about that. It is there is a lot of flopping. Frankie: But could you imagine that happening in Roseburg? Judah: Yeah, I could and I would laugh really hard. 'Cause I wouldn't be watching the bike ride, I'd watching everybody else. Yeah. Frankie: Right? Everybody's reaction. Right. So this is why having varying standards of the law depending on where you live is not okay. So they said that countervailing community standards has to be society at large. Otherwise you could potentially deny access to something that's acceptable in one area but unacceptable somewhere else. And you'd have to either ban it the place that it's acceptable or force it on the place that it's not. and having those varying levels of acceptance could either by law or by deterrence Deter distributors from selling materials for fear of prosecution in some places, even though that material is acceptable in other places. Judah: I'm thinking of something that's really like the most innocuous thing ever, breastfeeding. Frankie: Mm-hmm. Judah: And that a lot of people have come forward and said, Hey, maybe my human baby would not like to have a towel over their head while they're eating and so people are breastfeeding. It's not a sexual activity, it's the you know Frankie: It's the biological function of the breast. Judah: It's the biological function of the breast. You're nurturing a child, but I'm thinking of all the people who've come forward, like, but boobs turn me on. It's like, you need to get over yourself. That is a you Frankie: That that i that is a you problem, sir. Judah: problem. There is a human child that needs sustenance, and this is what the biological function of a breast is. So you need to get over yourself. Yeah, is Frankie: Mm-hmm. Right. Judah: it maybe a little bit like startling if you see somebody just like Frankie: Whoop boo boat. Judah: Whip a boob out, but then as you take one second you go, they're f there's they're feeding their kid. Maybe Frankie: There's a baby's head there. Yeah. Judah: I should leave them alone. Frankie: Yep. Avert your eyes. Judah: Yeah. Frankie: So essentially the varying standard of applicability of the Constitution, right, because we're talking about free speech rights, is not okay. so SCOTIS tried to balance protecting children from obscenity. Judah: gosh, it's always protect gotta protect the children. Gotta protect the children. Frankie: So balancing, protecting the children from the obscenity and not limiting adults to essentially children's programming, and that was actually in the in the decision. and they noted that rather than banning obscenity, localities should probably focus on laws limiting children's access to obscenity. And that's where they landed in terms of a balancing test. Because the law being reviewed is a blanket ban and not a ban on dissemination to children. The court applied strict scrutiny. So when a case goes up to the Supreme Court and they have these questions of constitutional muster, there are varying levels of scrutiny that they can use. The lowest level of scrutiny is a rational basis test, and that means, you know, is the law rationally related to a government purpose? Right. And that's when we talk about time, place, and manner restrictions on speech. Those are rationally related to the government not wanting people making tons of noise at three in the morning and waking everybody up, right? That's a time-place-manner restriction on speech and assembly. It's not a topic-based speech restriction. Whereas this this question on obscenity is topic-based, and when it's topic-based, it has to be strict scrutiny, which is the highest level of scrutiny. I have Judah: Okay, you've gone full lawyer on us. You've gone full lawyer. So for the non lawyers listening, free speech, what you say and even how you say it is generally very protected Frankie: Yes. Judah: in the United States. particularly in what's known as a public forum. So like truly public property. However, long ago, the Supreme Court said yes, the First Amendment is very important. And if the government in any form, state, local, federal, wants to limit how somebody says something and what they say, they have to have a really significant interest. And the law has to be really small. To protect that significant interest. and how they look at it is called strict scrutiny. So it has to be really like the law has to be really, really specific. And it's been said that like states can limit when people say things or in kind of like sometimes the manner in which they say things, but not speech entirely. So for example, you can limit somebody coming in and shouting nonstop during a legislative session on the house floor, but you have to so that's a place restriction. They can't go be shouting in there, but they have there has to be an opportunity for that person to say what they want to say pretty close by. So you can move You can also restrict time, so like noise curfews. And that's a narrowly tailored to a small protection that the goal isn't to stop somebody's speech. The goal is to let maybe a neighborhood sleep through the night. Frankie: Yep. a more concrete example of and this isn't necessarily speech, but you know, the example that I use to explain to my clients is I'm free to swing my arms around so long as I don't punch you in the face. Right? My rights cannot impinge on somebody else's rights. Judah: Because that's yeah, part of free expression. But we're talking here where the Supreme Court had already said, Hey, you can't infringe on somebody's right to free expression or free speech, even if that's through movies. Except for like, what if it's just really obscene? What if it's pornographic? Then they're carving that out as an exception to what is speech. And they did the same thing with like threats of violence. You can't just threaten to hurt anybody whenever you want and expect no consequences. that is also carved out of a protection. So there's certain types Frankie: Mm-hmm. Judah: of speech that are not protected under free speech or like this free expression. Frankie: Yeah, incitement to violence is the big term for threats where, it's one thing to be like shouting vulgarities at somebody. It's another thing to be like, let's all gang up and kill this person and then a whole bunch of people join ya with, you know Swords and stuff. Judah: Sword. Frankie: My brain just went blank. I'm sorry. Judah: Yeah. I mean if you're planning then it like for example if Frankie and I were planning to commit a crime. Frankie: That's called conspiracy. Judah: That's called conspiracy. That speech is not protected. We can't just say whatever we want, whenever we want. That's still that's allowed to be a crime. Okay. Get to the good stuff. Get to the get to the epic quote. Frankie: Alright, continuing. I'm getting there. so the court's applying strict scrutiny because it is the content of the speech that we're looking at. And the states ofjections of the film, obviously, were almost entirely within the love scene at the end of the movie. Sorry, spoiler alert. the Judah: my gosh, you've just destroyed a film from Frankie: Yeah. Judah: what is it, nineteen fifty four that Frankie: Something like that. Judah: I was planning on finding somewhere. Frankie: The the film itself was highly rated, including amongst the best films of the year by two nationally acclaimed critics, and the court decided it was not obscene within the definitions laid out in the previous SCOTA's case law. That is the main opinion. There were a few concurring and dissenting opinions. one of the concurring opinions was from Justice Black, who wrote separately to say that essentially censorship violates the freedom of speech and of the press. Kind of clear in the main body of the opinion, not sure why you had to write separately for that. Justice Stewart wrote separately to express the difficulty in defining the undefinable. he also opines that criminal laws censoring obscenity should be limited to hardcore porn. And then he says that he isn't going to attempt to further define what would be covered, except to say, quote, I know it when I see it. Judah: I know I know it when I see it. I can't tell you what pornography is, but I know it when I see it. Frankie: And this motion picture was not that. Which is like I mean, it's a great line for you to be remembered in the history of SCOTUS. It's not fucking helpful to say, I know it when I see it and this ain't it. Like, okay, so what is? Judah: Wha what is? I mean 'cause there's there could be even films that feature explicit types of sexuality that are downright educational. okay, yeah, so that that is this famous quote about a Frankie: Yep. That's the famous quote. Judah: senity that I know it when I see it, you know, like he's seeing it very regularly. Frankie: Yeah, right. Judah: So I guess when we're coming out to like why are we talking about this case is this is a very famous case Frankie: Mm-hmm. Judah: bolstering free speech protection and freedom of expression protection that we later see in the Hustler magazine case. Frankie: Mm. Judah: Cause that we should you know, we should do that sometime. We're sometime we're gonna do the Hustler magazine case. But as much legalies as we worked in there, specifically you, Frankie, you went you just were like, Hey, lawyer, we're just gonna Frankie: I'm I'm used to teaching law students and baby attorneys. Judah: I taught a law school class, maybe I got good ratings because I talked to them like normal people. So it's saying Frankie: Like normal people They're Judah: hey, even though this featured explicit sexuality, it's not obscenity and it had a genuine artistic purpose. Frankie: Yep, and that's kind of what Justice Greenberg wrote separately to say. the objectionable scene is so, quote, fleeting and fragmentary that a censor's alert would be sufficient. Essentially just what we would call today a content warning. otherwise, you know, Justice Greenberg said that an ill matched marriage has been told time and time again in books, movies, and soap operas, and that the analysis would have been different if they were looking at the apparently more explicit advertising than the movie itself. The advertising used such quotes as When all conventions explode in the most daring love story ever filmed, and as close to authentic amour as possible on the screen, and the frankest love scenes yet seen on film and contains one of the most sensuous love scenes seen in this country. Like those advertisements Closer to obscenity. The like than the Judah: Yeah. Frankie: two second shot of a boob in the movie, not enough. Judah: There's this absolutely incredible German movie called Frankie: Mm-hmm. Judah: And I do recommend this. But they're trailing a child rapist and murderer, but they can't say that explicitly because Frankie: Mm-hmm. Judah: of the restrictions on the film code at the time. And someday we're gonna dig into the Hayes Code, which is one of my favorite topics. nobody wants to talk to me about the Hayes Code. I just wanna talk about the Hays Code. Frankie: Well, now you have a podcast and you can talk to anybody who will listen. Judah: About like the history of why violence and explicit violence is far more acceptable in American media than sexuality. Frankie: Mm-hmm. Judah: We can expect that the average, American adult is going to engage in sexual behaviors at some point during their lifetime. most people will. And that's okay, and we don't want people chopping somebody's head off. Frankie: Right. we're like actually biologically wired on the most part to have sex. We're less biologically wired to kill each other. Judah: Kill someone. Not s so like asexual people are real and they are valid. on the most part, Frankie: Yep. Yep. That's why I said on the most j generally. Judah: and that's asexuality is a perfectly normal part of the sexuality spectrum. Frankie: Mm-hmm. Judah: But most people engage in consensual sexual behavior over the course of their lifetime, and that's okay, but we really shouldn't, you know, shoot somebody. Frankie: Mm-hmm. Judah: so why is violence More okay and far more accepted than sexuality or healthy depictions of sexuality. There was what film was it? I think it was Boys Don't Cry, Frankie: Mm-hmm. Judah: which is a very violent film. Frankie: Yes. Judah: And is great. Kimberly Pierce directed that, starring Hilary Swank. It's intense, it's a movie that I only ever wanted to watch one time. but there was this to get it from an X rating to an R rating, there was a scene where one character engages in oral sex with another character and as they were coming up one character like was wiping his mouth off Frankie: Mm-hmm. Judah: from the oral quirtis and the sensors are like, Nope, can't wipe your mouth off Frankie: Too much. Judah: But at the end and this is you know, factual, it features people getting murdered. Frankie: Right. Judah: And like, yep, that's fine. Okay, so we're gonna we're gonna move ahead to similar era. We're Frankie: Mm. Judah: gonna talk about McCarthyism and separately talk about Joseph McCarthy. So when you think about McCarthyism, what's another what what comes to mind for you? Frankie: Red scare. Judah: The Red Scare and what was happening in the government. Frankie: Well we were Is that Cold War times with the Russians or am I thinking a little bit too er late in Judah: You're you're too early. Frankie: mm? Judah: So what what a lot of people think of, what I thought of was the House Frankie: Space race. Space race. Judah: Un American Activities Committee. Frankie: That's because you're a nerd. Judah: Yeah, except for that was not Joseph McCarthy. So McCarthyism came forward later as this broad sweeping term for this red scare and activities by the government to persecute communists and people believed to be communists in the United States. And that that action was through the House Un American Activities Committee. But that committee was started in nineteen thirty-seven, ten years before Joseph McCarthy made it to the American Senate. And it was originally started as both investigating fascism and communism. And Joseph McCarthy, his era of prominence is really restricted from nineteen fifty to nineteen fifty-four, whereas the House Un American Activities Committee was in some form in existence its predecessor from about nineteen seventeen to about nineteen seventy-five. And these Senate hearings where they're dragging people in front of the Senate and saying, Hey, are you a communist? Give us, you know, communist names, actually criminally convicting people Frankie: Mm-hmm. Judah: of contempt of court, was going long before Joseph McCarthy and long after. There was really three different iterations of the same thing. And He comes to prominence in nineteen fifty and he drastically and dramatically leaves American favor in nineteen fifty four. And then he dies Frankie: Yeah. Judah: three years later. Frankie: Yeah. Judah: I'm not gonna say he's a good guy. He's an absolute trash gremlin. Joseph McCarthy was not a good person, pretty well start to finish. So let's talk about just the Red Scare. So the first red scare in the United States happens about 1917 when the Russian revolt comes about. There is some reaction to that, but we don't see the extreme levels of reaction. There's propaganda, like pro-capitalist propaganda in the United States, and there's also activities by communists and anarchists in the United States. There's a really very interesting case about two anarchists, Sacco and Vanzetti, that I'm gonna Frankie: Yes. Judah: take apart and set aside for a different time. Because Sacco and Vanzetti is a very, very interesting case. so we have this existing kind of vague and nemulous kind of anti-communist sentiment. We have World War II where the United States is pretty well aligned with Russia. And then pretty quickly after that, tensions are rising. I was talking about the House H U A C. I'm just gonna abbreviate it to that. So this really came into fruition into itself, more what we know in 1937 because of fascism. And so it changes from a previous iteration to this committee that's investigating fascism and communism, kind of America's enemies. Because of what we just talked about, and weirdly your case linked in very well, it is and has always been hypothetically legal to be a communist or a fascist in the United States of America. Frankie: Yeah, free speech. Judah: However, not functionally, has not been functionally legal. Frankie: No, because well we see what the fascists are doing today, and then back then there was essentially theory that if you are a communist then you are automatically a Russian spy. Judah: Automatically a Russian spy. Poor Owen Latimer. You don't see this committee come into prominence till immediately after World War II. And it kind of loses its anti-fascist element and just goes full anti-communist. A few things are happening at the time we're seeing China turning communist in nineteen forty nine Frankie: Mm-hmm. Judah: and Ethel and Julius Rosenberg. Frankie: Yeah. Judah: Coming to light in 1949. They super did. But in 1947, Frankie: They got sandbagged. Judah: there's this famous at the time, I don't know if it's like school kid famous today, case of the Hollywood 10. Ten prominent Hollywood directors and screenwriters brought before the House on American Activities Committee who refuse to testify. They're called In front of this committee, there's ten of them. They refuse to testify, period, not under their fifth amendment protections, but under their first amendment protections. Now on court or in shows you'll see people saying, I'm taking the fifth. I plead the fifth. Frankie: if anybody watched Senate hearings this morning, Dr. Anthony Fauci took the fifth for every single question. Which, you know, under advice of counsel, sometimes that's a thing you gotta do. But Judah: Yeah. And and bless his heart. So what that means is I have a right to not say in court or in a hearing things that might incriminate me or might get me in trouble. Frankie: Even if there's nothing to hide, you're just concerned that the other people in the room are going to twist what you said. Judah: Correct. But these ten people did not plead the fifth or take the fifth. They took the first, saying you can't drag me in here to ask if I'm a communist or to try and get me in trouble for being a communist, because being a communist is perfectly legal in the United States. Frankie: Mm-hmm. Judah: And those ten people were all given congressional contempt of court. And sent to jail for between six months and a year, and then put on the now famous Hollywood Blacklist. I'm gonna take a pause here. So that's 1949. Six of the ten people sent to jail for this are what kind of people? Frankie Huey. Frankie: Jews. Judah: They are Jews. How did you as a Jewish person know that six of the ten people are Jewish? Frankie: I mean I've written a paper on the Rosenbergs, but Judah: Okay. so that's already in like American consciousness. We have this big pushdown into Hollywood and this investigation and then we have Frankie: Well, and just like side note historical issues with Jews, right? There used to be people who were fleeing from pogroms and from the Holocaust that were Jewish that got turned away because the quotas got full. and also there's just the underlying anti Semitism that's kind of baked into our country. the conspiracy theories that like the Jews control all the money and everything, which goes way back to ancient times when Catholics weren't allowed to charge interest, so the Jews started banking and stuff like that. it is baked in to this country's psyche that there's something wrong with the Jewish population. Judah: okay, so we're gonna take a pause and go on a side quest, because we both have ADHD. So a lot of my mom's family immigrated and their last name was originally Clouch, which is Ashkenazi name. Frankie: Yes. Judah: No, it was originally Glentz. Sorry, it's originally Glens. That's an Oshkenazi name. Frankie: That makes more sense, yep. Judah: Yeah, it was Glens. So all their last names were Glens. my like great great grandfather's name was Hieronymus Glensh. And Hieronymous is, in my opinion, the perfect first name. And then they changed their last name to Clouch. Frankie: Mm-hmm. Judah: all about the same time and it was in the early thirties. And that was during a rise of anti Semitism in the United States. Frankie: Mm. Judah: Okay, so six of the ten people are Jews. And we see this thread of anti Semitism from the start to the finish. It's not just because Jewish people are historically and today overrepresented in leftist working movements. Frankie: It's almost like we come from a repressed community and want freedom. Judah: That's wild. How could you say that? but to say like sixty percent of these people who sent to jail are are Jewish is wild. Frankie: It's ridiculously disproportionate. I think the United States population is maybe like eight ish percent Jewish, something like that. Some relatively small number. So to have sixty percent of a group going to jail be Jewish is wildly disproportionate. Judah: Fascinating, like there was a studio head response to this, a famous letter sent to Congress and published opposing this type of action and fifteen major Hollywood players of Studio Heads signed on to that and ten of the fifteen people who opposed what the HUAC was doing Frankie: I was way off. Two point four percent of the United States population is Jewish. Judah: Okay, so ten of the fifteen people who are responding and opposing this publicly, even risking their careers and their well-being, major Hollywood players, Jewish. Frankie: Yes. Judah: Okay. So you have that, then you have what is still described in our textbooks as the fall of China, but when China became a communist state, Frankie: Mm. Judah: and immediately after that, you have Ethel and Julius Rosenberg, who are Frankie: Mm-hmm. Judah: accused of spying And passing atomic secrets from the US atomic program to the Soviets who are executed, who are the only two people in the United States executed because of Soviet espionage, Frankie: Essentially treason, yeah. Judah: essentially treason. The evidence is very flimsy, maybe we'll we'll Frankie: It is so flimsy. Judah: it's just the brother in law. Frankie: Something like Judah: We'll talk about that we should talk about the Rosenberg someday too. that's another that Frankie: Mm-hmm. Whole thing. Judah: but the United States is feeling a lot of tension, and this is also when you start to see the origins of the American Christian like theological ideas about Christians in power and a Christian government, these you know, in God we trust on the On the money and the Frankie: Mm-hmm. Judah: Pledge of Allegiance under God. because they're trying to differentiate themselves. So originally it's like this differentiation from the godless Frankie: Less communists. Judah: stop communists. Alright. Then in 1950, he'd been in office since 1947. Along comes Joseph McCarthy. Joseph McCarthy is an all-around Turdberg. Frankie: Mm-hmm. Judah: He was born in relatively average white American dude's circumstances, went to law school, was not liked by his legal community, but was elected judge. Had a failed stab at the Senate, went to war, comes back, gets elected judge again, and then defeats in Wisconsin, a very progressive and seemed like all around good dude. Maybe prob probably racist, we're just saying probably racist, and goes to the Senate. He had already lied about his military record. he should have been convicted of war profiteering. He accused Frankie: Jesus Christ. Judah: Yeah. I mean he he lied in his first circuit court judge election. he was just everywhere, he's just dealing him out. Frankie: Hm. Judah: And the community that knows him also, it's just like they don't like him. So the Frankie: Yeah. Judah: legal community before he's elected, anything like this guy is a asshole. Frankie: Mm-hmm. Judah: So he gets elected to the Senate, but in nineteen fifty, everything's coming to a peak, and then Senator Joseph McCarthy makes this big speech in Wisconsin saying that he knows about over two hundred communists in the federal government and being an opportunistic shyster, I bet is also kind of surprised when that catches on. And becomes very popular. He later says, no, it's only 57 people. So we have the H Frankie: Yep. Just kidding. Judah: we have the HUAC already going on, already dragging people in front of it, destroying careers with very little evidence. there were investigations later that showed that a lot of people had absolutely no affiliation with. Frankie: Yeah, it was all like made up. Judah: Mostly made up. And it coincides with the lavender scare. So it's like where communist kind of also became a code word for queer. A lot of queer people drug in. But he's announced and then he expands the scope of this paranoia and this investigation. Kind of gets his own subcommittee. And the people on the committee don't like him. But he has this smaller and less publicized Reign of terror, where this absolute narcissistic dillweed finally has the power and the prestige and the esteem that he wants and he's got all this national attention and is seen as an American hero. Kind of protecting people and he's taken it to the next level. And there are too many lies for me to really reference during this time Frankie: It's so many. Judah: period. But we can say from this speech in nineteen fifty to nineteen fifty four, the reign of Joseph McCarthy and his entrance into the popular American imagination. And he falls very, very rapidly out of favor Frankie: Mm-hmm. Judah: with the American people in nineteen fifty four, when he's conducting hearings specifically into the US Armed forces or the army. And the Frankie: Fuck with the army. Judah: he takes it too far. they're also televised. So people get to see, even though processed through press release, rather than just what's written about him, they get to see him and his bullying behavior. Yeah. Frankie: And this was one of the first televised Senate committee, like the televising of these things had just started Judah: Yes. Frankie: and so it was people's first look into the guts of government and it was not a good Judah: Not a good look. The chief counsel of the United States Army was a lawyer named Joseph Welch, and during these hearings he says to McCarthy, Have you no sense of decency, sir? And as Americans are seeing what McCarthy is really like, that latches into the American thought about him. And shortly thereafter, in March of nineteen fifty four, famed broadcast journalist and investigative journalist Edward R. Murrow Frankie: Mm-hmm. Judah: broadcasts a piece examining McCarthy's method. So as as quickly as he rose, he fell. So he made this speech in Wisconsin. I actually don't have in my notes about when in 1950, but in early in 1954, so we have about a three-year period, boom, he falls down. And then in December of nineteen fifty-four, the Senate votes 67 to 22 to censure McCarthy for his conduct, quote, contrary to Senate traditions. He lost his committee influence. He was shunned by his colleagues and by the press. And less than three years later he dies of complications related to alcoholism. Now the HUAC continues in some form, not as big, but it continues through the sixties and seventies during the Vietnam War era, there was a couple of famous activists who were brought in that would dress up as Santa Claus or as people from the Revolutionary War. And it really turned the popular American imagination against what the HUAC was doing, period. They changed Frankie: Mm-hmm. Judah: their name and then were officially abolished in nineteen seventy-five. But this big scare and this overreaching attempt to criminalize what should have been perfectly legal the entire time lasts really in the American imagination from about nineteen forty six to about nineteen fifty four. And over three Frankie: Yeah. And and Judah: thousand people were brought in front of the HUAC. Frankie: Which is ridiculous 'cause it was all just him grabbing at something to have his fifteen minutes. there was little to know there, actually there behind his allegations, which is even clear from being like, I know two hundred people, and then being like just kidding it's fifty seven. Judah: I saw a really great short so where I got my information is PBS documentary McCarthy. a few articles, the Middle Tennessee Freedom of Speech Association. But also there's a really moving short on PBS that was separate from the documentary about academic named Owen Lattimore, who was a scholar about China and Central Asia focusing on Mongolia. He never Earned a college degree, but was a professor, wrote some really influential papers, and in 1950 McCarthy accused him of being a top Soviet spy because of his associations with Central Asia. And he went through years of Senate hearings and brutality and getting drugged through the press. And he was exonerated eventually. if you have a moment, go to PBS and look him up, it's about five and a half minutes, but a really moving short piece on his experience being railroaded and then eventually, moving to the United Kingdom. Frankie: Yeah, we can link that in the show notes. Judah: That was very interesting, especially since this person who is a self made intellect, advanced a lot of our philosophical discussions around the way human societies evolve, grow, decline, and interact with other societies Frankie: Mm. Judah: completely completely innocent after a very, very, very rigorous and thorough investigation of espionage. Frankie: Well and this whole thing, like all of these accusations, all of these Senate hearings, this was like the definition of a witch hunt. Judah: yeah. Frankie: Right? we hear that term thrown around quite a bit in a less witch hunty situation today, cause, you know, evidence it actually exists. But back then it was literally like I heard my sister said that her husband said that this person's a communist. Judah: And people would Yeah. Frankie: And that was that was enough to bring somebody into question. Judah: And people would get out of trouble by naming other names. So it was this Frankie: Yeah. Judah: perpetuating cycle that became an obsession and all of these people are really publicized. there's a really great Agatha Christie book called Ordeal by Innocence. And just that idea of the ordeal by innocence is is very true. Plus Frankie: Mm-hmm. And you're having to prove yourself innocent as opposed to having the state prove you guilty, which is how it's supposed to go if it were actually criminal charges, which there wouldn't be, because it's not illegal Judah: Yeah. It was legal. Frankie: to say you're a communist or to be a communist. Judah: Or be a communist or advocate for communism. However, the people that were sent to jail it was contempt of court and the rest of these people, their careers or their lives were devastated Frankie: Ruined. Judah: in this period by a guy who was notoriously guilty of what he accused other people of doing. I read this report of this at the time, 'cause he was also dragging in queer people, especially queer men, Frankie: Mm. Judah: that he was a regular at a gay bar in Washington, DC. And Frankie: Yep. Judah: I was like, we don't want him. We don't want you. Okay, so next week next week, Frankie: Next week. Judah: I would like to talk about the effort to legalize the arcade game of pinball. Frankie: Hmm. That means I need a serious one and I was focused on this. So I may surprise you next week because I have been swamped and have not had a chance to think about what I'm going to do for next week. We can make stuff up as we go. Maybe we'll have Judah: Yeah, let's make stuff up as we go. Okay. Frankie: two fluffy ones next week and I'll do the hearsay one because that's already on my mind. Judah: The pinball story have you heard of this? Pinball being Frankie: I have not. Judah: illegal? Very interesting. Frankie: Speakeasy type stuff or Judah: No, that's I don't want to spoil it for you, but the Frankie: Okay. Judah: effort, hashtag legalize pinball. Frankie: Alright. Well, if we're doing that kind of thing, maybe I'll look into something along those lines as well in Judah: Okay. Frankie: terms of various entertainment not being legal. Perhaps by constitutional Judah: All right. Frankie: amendment, we'll see. Judah: And that was your fresh nightmare, America. Drink Frankie: Yep. Judah: lots of water. Frankie: Drink lots of water. So some news on our publication front, I guess. we now have socials. so we have Facebook, 'cause I'm old. so Dumb Defenses podcast on Judah: Aren't we the same age? Frankie: I'm like three years older than you. Judah: Wait, how old are you? Yeah, you are three years older than me. I'm thirty eight. Frankie: Forty one. So Facebook 'cause I'm old, Dumb Defenses Podcast on there. Instagram at Dumb Defenses Podcast and Blue Sky at Dumb Defenses Pod because I was only allowed eighteen characters. all of our teaser videos will be up on those pages. I apologize to those on Instagram and Blue Sky for the unlabeled dump of prior snips. I was trying to get it done and it didn't make me label them. So sorry about Judah: You know what? Frankie: that. Judah: You know, I'm gonna start a Tumblr and it's gonna be no snips, mostly chaos. Cause Frankie: Ha ha ha. Judah: I mean like we both have like the same neurodiverse neurospicy shit, but you're a lot more organized in your presentation. Frankie: I'm more autistic, you're more ADHD. Judah: So I'm not gonna let Frank touch the tumblr and it's gonna be an onslaught of chaos. Frankie: Have fun with that. Judah: Thank you. Frankie: as always, like, review, share the podcast. We can continue to grow. Email us at dumbdefensespodcast at gmail.com if you have any questions, thoughts, concerns, or a case that you want us to look at or a historical, legal adjacent topic. also, we have decided that once we hit 1000 streams, we will put together a Patreon. Behind which you'll be able to watch us make faces at each other as we tell these stories. Judah: You know what? 'cause we're looking at a hundred. Frankie: we were at one twenty five last I checked. Judah: Okay. So like a thousand streams for one episode. That's a big ask. Frankie: I was thinking a thousand total streams. Judah: No, no, no. One episode. Thousand streams. Frankie: man, guys, share the podcast. You want the videos. Judah: Share the podcast. You don't want the videos. I recently and you'll see this last week, I shaved off my beard and for a whole week I looked like a human thumb. Frank's asking for organized thing. I want you to in your peak chaos moment, if you are panic buying self care items at two o'clock in the morning, I want you to to email me personally at the podcast with whatever you're thinking about. And Frank will send it to me and I will enjoy it and I might read it. But I can anonymize you if you want. So like Frank's asking for organized stuff. I want you to go raccoon mode. And talk to me. Because I live in Raccoon. Thank you. Frankie: one of our younger attorneys was trying to like say hi and be nice to us early today and I was just completely focused on something else and I later messaged him and said, Sorry if it seemed like I was out of it. I have about ten gerbils running around in my head and they're tripping over each other. Judah: I want whatever your brain is eating old pizza out of a dumpster, I want you to talk to me. Frankie: Yeah. Judah: And hi mom. Love you. Say hi to my mom, Frank. Frankie: Hi, Judah's mom. Judah: Okay. Frankie: All right. So, fun stuff coming up next week. Please share if you want to get videos of the podcast eventually. I promise they are entertaining. we will see you next week. Judah: Bye. Frankie: Bye.