Last Saturday, President Obama delivered what may have been the first significant presidential speech on gay rights in U.S. history. In it, he made some promises--some of which he can probably keep, some of which he probably can't. Read more...

Senator Patrick Leahy (D-VT) is usually considered solid on civil liberties issues, but nobody has been solid on the PATRIOT Act--with the exception of Senator Russ Feingold (D-WI), the only senator to vote against it when it first came up in 2001.

Last week, the Senate Judiciary Committee voted 11-8 to accept Leahy's USA PATRIOT Act Sunset Extension Act of 2009, rejecting Feingold's JUSTICE Act and leaving most of the PATRIOT Act's controversial provisions in place.

But the bill does make some modest changes, as the ACLU reports:

[T]here were two amendments included in the final bill - both offered by Senator Feingold - that are victories for privacy: The Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL and the government must notify suspects of "sneak and peek" searches within seven days instead of the thirty days currently outlined in the statute. "Sneak and peek" searches allow the government to search a home without notifying the resident immediately.

That said, it's clear that the Democratic Senate isn't much more committed to dealing with issues of government surveillance than the Republican Senate was. It's incrementally better--five Republicans actually voted against the bill because they felt that it gave too much deference to the Fourth Amendment--but this vote demonstrates, as the inevitable passage of Leahy's bill will demonstrate, that neither major party takes our civil liberties as seriously as it should.

Related: More on Feingold's JUSTICE Act

Tomorrow, the Supreme Court will hear opening arguments in United States v. Stevens. At issue, as explained by About.com: Animal Rights guide Doris Lin, is 18 USC Section 48, which reads:

Title 18 USC, § 48. Depiction of animal cruelty

(a) Creation, Sale, or Possession.-- Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.-- Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.-- In this section--
(1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

I would expect the Court to ask two questions: Does this law serve a compelling interest, and does it use the least restrictive means possible to meet that interest?

My suspicion is that the law will meet that standard, but a more interesting question to me is whether animal cruelty videos, marketed for obvious sexual purposes, would qualify as obscene.

I've been following the Roman Polanski situation lately, and in the course of my reading ran across this very wise statement from his late wife Sharon Tate:

I honestly don't understand the big fuss made over nudity and sex in films. It's silly. On TV, the children can watch people murdering each other, which is a very unnatural thing, but they can't watch two people in the very natural process of making love. Now, really, that doesn't make any sense, does it?

The Supreme Court's definition of obscenity has conventionally been limited to content of a sexual matter, while violent content, even violent content intended to appeal to twisted sexual impulses, has not historically been regarded as obscene. But the word "obscene" has to do with the way material is perceived, not sexual content; it comes from the Latin root obscaenus, meaning "ill-omened." And the Supreme Court has historically held that obscene content is not protected speech.

The trouble I see is that if we live in a world where graphically violent content intended and marketed to appeal to sexual sadism is not regarded as obscene, but video of two people having consensual sex is, then it's reasonable to question our priorities. The short-term answer the Supreme Court will most likely provide in the Stevens case is that the law is acceptable because it serves a compelling government interest. But the more long-term question is what content still qualifies as obscene rather than merely indecent, and how (or if) the Court should make a distinction between the two.

The current definition of obscenity, taken from Miller v. California (1972), holds that material that is not of a sexual nature cannot, by definition, be considered obscene--that violent content such as animal torture videos, for example, cannot be considered obscene even if it is created to appeal to a prurient interest. The Miller standard reads as follows:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I find this unsatisfactory for many reasons. I'll suggest new wording in a later blog entry, but first I want to hear from you. In a paragraph or less, tell me: How would you define obscenity?

Related: The First Amendment: Text, Origins, and Meaning

Roman Polanski was finally arrested this weekend in Switzerland, and will face charges for drugging and raping a 13-year-old girl in 1977. Ordinarily I would say "allegedly," but I don't have to in this case; he pled guilty, and has never disputed the charges. (You can read the original grand jury testimony here, but I warn you that it is (a) graphic and (b) depressing.)

Much of the blogosphere is up in arms about the arrest. I'm not, because the fact that he has gotten away with what he did for decades is an example of reverse profiling; instead of being targeted for being poor, brown, and marginalized, he has been protected for being wealthy, fair-skinned, and popular.

And none of the arguments against Polanski's prosecution are particularly convincing from a civil liberties perspective. Yes, the survivor, now 45, has forgiven him. That is her right; nobody should criticize her for it. And this would be the end of the story if this were a civil proceeding, where she would be the plaintiff. But criminal trials are not based strictly on the idea of retribution and compensation, like civil trials are; they're based on restoration and deterrent effect. She should not be forced to participate in the trial, but if there is still a viable case, the criminal justice system is doing its job by prosecuting a sexual predator. One of the benefits of the way our criminal justice system handles domestic violence and sexual assault claims is that it does not force the survivor to stand as accuser. That role is filled by the state, acting in the state's interests, which provides a necessary buffer between the survivor and the assailant. The assailant stands condemned, in the parlance of the court, by "The People."

Another argument, featured in a recent Washington Post column by Anne Applebaum, is that "Polanski did not know [his target's] real age." Well, given that he had asked her mother for permission to conduct a photo shoot, he presumably knew she was a minor. But even if he somehow didn't, assuming her contemporaneous account of the assault is accurate (and, again, this has never been seriously disputed), he drugged her with alcohol and Quaaludes until she was unable to resist, ignored the fact that she verbally asked him to stop, and sexually assaulted her. This would have been horrific even if she were an adult, and it is difficult to see how Polanski could have believed that she was.

We're supposed to sympathize with Polanski because he led a very difficult life. As Applebaum puts it:

Polanski's mother died in Auschwitz. His father survived Mauthausen. He himself survived the Krakow ghetto, and later emigrated from communist Poland. His pregnant wife, Sharon Tate, was murdered in 1969 by the followers of Charles Manson...

That's hard to contemplate. That's hard to absorb. I can't imagine what going through all of that might do to somebody's mind. But we're all products of our biology and our environment. We all have things in our past, or in our makeup, that make up who we are and lead us to do the things we do. No human behavior, no matter how horrible, falls outside of this dynamic. These are explanations; they are not excuses. And the fact that Polanski's explanations are tragic, that any decent person will feel some sympathy for what he has had to go through, does not erase his crime.

Roman Polanski is a convicted sex offender who has lived on the run for over three decades. A less wealthy and influential man might have spent those three decades in prison instead of making films that have been, by most accounts, some of the greatest of the twentieth century. That's a lucky break for the film industry, but a stain on our criminal justice system. He should be extradited to the United States, and he should spend some time in prison. He'll only get a slap on the wrist--that's one of the benefits of being Roman Polanski. But if the concept of equal justice means anything to us, he should at least get that much.

Related: Roman Polanski Arrested in Switzerland