The Social Costs of Pornography: A Collection of Papers
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The content and interlocking character of the three lines of regulatory authority is reflected in Justice Antonin Scalia’s cogent argument in favor of the law. While the dissent “confidently asserts . . . that the purpose of restricting nudity in public places in general is to protect non-consenting parties from offense,” he notes that,
there is no basis for thinking that our society has ever shared that Thoreauvian “you may do what you like so long as it does not injure someone else” beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd. . . . In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. . . . [T]here is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate “morality.”15
The fourth entangling alliance is a variant of the third, covering the very particular injustice of child pornography. The law’s treatment of kiddie porn is quite different from its handling of the adult variety, in two ways. First, the Supreme Court in Osborne v. Ohio (1990) held that neither the First Amendment nor any other constitutional provision precluded criminalizing the possession of “child pornography” anywhere.16 So, the Stanley case still protects someone’s possession of adult-themed obscenity at home, but our laws about child pornography extend all the way to possession in one’s abode, even to the hard drive of one’s personal computer.
Second, child pornography need not be “obscene” according to the prevailing grown-ups’ test; it is illegal even if it only includes images of children that, were they portrayals of adults, would be protected by the First Amendment.
The Court’s stated reason for this large authority to combat child pornography has nothing to do with public morality, even though there is a strong social consensus that child pornography is morally degenerate and should be banned for that reason alone.17 The reason proffered by the Osborne Court was to protect the “victims of child pornography.” These “victims” were not children in general, whom, one could reasonably argue, were put at greater risk of being viewed as objects of sexual desire and satisfaction. Nor were they the sometimes hapless and invariably diminished consumers (usually adults) of child pornography. The Court’s “victims” were exclusively the children depicted in the materials. The stated reason for the sweeping Osborne authority was the “hope to destroy a market for the exploitative use of children” in making kiddie porn.18
This rationale was recently confirmed by seven members of the Court. In U.S. v. Williams, decided in June 2008, they wrote that “[c]hild pornography harms and debases the most defenseless of our citizens.”19 That case made explicit a certain implication of Osborne: only material “depicting actual children engaged in sexually explicit conduct” counts as “child pornography.” Only that material—and not sexually explicit material with adult actors who look like children or life-like “virtual” children—involves the exploitation of society’s “defenseless.” The state’s authority to combat “child pornography” has nothing to do with sexual perversion or lust or age-inappropriate attractions, or even the possible stimulation of sexual predators to act. The rationale would apply equally to a total ban on possession of snuff movies, which have nothing to do with sexual immorality. Osborne is about child labor practices.
II. INHERITED CONSTITUTIONAL DOCTRINE
There is a fifth line of authority for the legal regulation of pornography entangled with public morality. This one has moral underpinnings, but is not itself a principle of political morality, public policy, or even an aspect of the common good. It is a matter of following authority, of judicial adherence to the rules laid down.
In 1957 the Supreme Court, in the case of Roth v. United States, looked back at the constitutional tradition. The Court observed that there are “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem.”20 “Obscenity” was one such category: “Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”21 The Court then articulated a test for what counts as obscenity. That test persists, in slightly modified form, to this day.
Roth and Butler v. Michigan, both decided on the same day, departed from the ancient doctrine laid down in 1868 by the King’s Bench in Regina v. Hicklin. In that famous English decision, Lord Chief Justice Cockburn defined the test of “obscenity” as “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”22 As the Supreme Court phrased it in the Roth case, Hicklin “allowed material to be judged by the effect of an isolated excerpt upon particularly susceptible persons.”23
This standard was judged in Roth to be “unconstitutionally restrictive of the freedoms of speech and press” because it “might well encompass material legitimately treating with sex.”24 In Butler, Justice Felix Frankfurter, writing for the Court, described the state’s use of Hicklin as “quarantining the general reading public against books not too rugged for grown men and women.”25 The challenged law, Frankfurter said, reduces “the adult population of Michigan to reading only what is fit for children. . . . Surely this is to burn the house to roast the pig.”26
Fair enough. It appears (to me, at least) that the Court in 1957 was guided, not by any desire to free up smut peddlers, but to save passably good literature from the heavy hand of blue-nosed censors. Through the mid-1960s, the justices were animated by that intention, supplemented by the conscious desire to protect materials that dealt, even in a frank and visually explicit but non-pornographic way, with sex. Then, in 1966, in Memoirs v. Massachusetts, the Court made what Roth declared to be a reason obscenity lacked constitutional protection—it was “utterly without redeeming social value”27—part of the test for obscenity. The case, which concerned the eighteenth-century novel Fanny Hill, thus burdened public authorities with proving an almost impossible negative.
Now, here is the regnant “test” for obscenity as it was articulated in the 1973 decision Miller v. California: only those works are obscene, “which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”28 Miller expressly limited the “obscenity” to “works which depict or describe sexual conduct” (emphasis added). It also revised the third part of the Roth test, as it had been modified in the Memoirs case.
Roth, Miller, and their progeny set a boundary between “free expression” and prohibitable “obscenity.” Beyond that boundary, no public official may go.29 Within the universe populated by works that satisfy the Miller test, public officials may regulate. And since 1957 the Supreme Court has consistently, though with the notable exception of Stanley v. Georgia, stood by this boundary line.
It is important to note that the Miller standard by itself does not call for, much less ensure, that any “obscene” act or work will be prosecuted or legally hampered in any other way. Not any lawmaker or executive official—federal, state, or local—is required by Roth, Miller, or any other case or constitutional provision to clamp down on even the grossest immorality. One might say that persons and the people have a natural, moral right to live in a decent society. But that right is not constitutionally enforceable. In other words, the constitutional standard I have described here distinguishes material which public officials may, but do not have to, prohibit. My judgment is that, if the legacy of our constitutional tradition was not that obscenity lacked First Amendment protection, it is doubtful that the Court at any time since 1957 wo
uld have minted such a doctrine. I say so largely because the Court in fifty years since has not produced a cogent moral justification for it; that is, the Court has not articulated, much less defended, any claim about what is wrong with obscenity.
The Burger Court in 1973 took a strong stand, to be sure, against reducing public morality to the four entangling strands described in Part I of this essay. The 1973 cases express well what public morality really is. In them the Court no doubt meant to permit communities (towns, cities, and states) that wanted to rid themselves of obscenity to do so. The Court rulings since 1957 are nonetheless suffused with high hosannas to the inestimable role that “freedom of expression” plays in the good life of man and in a democracy. There isn’t any corresponding testimony to the moral harm that obscenity visits upon its consumers, harm that does not discriminate between willing and unwilling users. There isn’t any parallel witness to the inestimable role that a decent regard for public morality plays in the good life of the human person, and of that person’s democracy.
III. PUBLIC MORALITY AND CULTURE
The four lines of lawmaking authority described in Part I are all sound, valid, and true. All have an important role to play in regulating pornography. But public morality is more than the sum of these four parts. And without any concept of what is wrong with obscene material, this important authority is severely hampered. This whole complex of ideas is missing a central element: a sound concept of “public morality.”
Public morality is an overarching collective or common good, maintainable by public authority. It is a centripetal force that depends for its meaning and justification upon no one’s unwilling participation or upon anyone’s insulted sensibilities. Everyone may justly be made to conform to its legally stipulated requirements; no one may rightly claim to not owe any obligation to society’s shared moral ecology.
As Alexander Bickel, one of America’s greatest constitutional scholars, wrote, in words adopted by the Supreme Court in 1973: “Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which in truth, we cannot), what is commonly heard and done intrudes upon us all, want it or not.”30 Or as Justice Scalia wrote in the 1991 Kitty Kat Lounge case: “[O]ur society prohibits, and all human societies have prohibited, certain activities, not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral.”
Neither Bickel nor the Burger Court justices who relied upon him, nor Justice Scalia used the word culture. But that is exactly what they were all talking about. Culture is a human production. It consists of what people do and say, congealed over time into a stable set of social practices. Culture is the collective and settled projection of meaning, including what it means to be a decent human being, and how a decent human being conducts himself or herself, sexually speaking. Culture nonetheless confronts each one of us as a massive objective reality, a formative influence we cannot escape, and that we cannot call into being according to our lights.
We possess, as it were, a common life that contributes in ways known and yet to be understood to my identity and to yours. Our personalities and our characters are not reducible to those features or traits that we acquire in voluntary transactions. We are not the authors of all that we think and believe. “To each his own thing” is an intrinsically naïve and empirically unavailable proposal by which to settle the meaning and scope of public morality. We are all, to some significant extent, the products of our culture.
The civil law plays an important, but secondary, role in making this inescapably common force a wholesome one.31 A sound understanding of public morality does not involve straightforward moral paternalism, even where restrictive laws are enforced against persons who dissent from the law’s moral judgments. Paternalism is coercion of an individual for the sake of that individual’s moral improvement. Public morality involves the maintenance of a morally wholesome public realm. Just as in order to stabilize prices, Congress forbids farmers to grow certain crops even for home consumption, so too might the law prohibit private possession of all pornographic material to suppress that market. That may have the effect, by helping to break someone’s habitual use of it, but that benefit is, or at least it should be, a welcome side effect of laws justified on other grounds.
Public morality presupposes that the state is competent to make sound moral judgments about sexual conduct, and to act on the basis of those judgments. The relevant moral judgment is that pornography morally harms the people who consume it because (a further moral judgment) lustful feelings that are unconnected to any morally upright relationship are subversive of good character. These judgments could of course be mistaken. But they do not depend for their validity upon any consumer’s agreement with it, at least no more than do the validity of the state’s judgments that prostitution and drug use are wrong and for that reason made crimes, regardless of consumer preferences.
But this public morality is fragile. It depends upon there being an objective right and wrong, which judgment would have to be nested within a larger web of moral judgments. The problem is that our constitutional law is now tilted toward a minority-veto: If material has any serious value to anyone it is immune to legal regulation. One standing threat to any adequate state power to protect public morality is therefore the unavailability of such objective moral judgments. The threat is real. Our constitutional law has flirted with a perilous moral subjectivism for several decades; indeed, Stanley nearly consummated the affair.
Let me start with an avant-garde expression of this acidic agent. It is an excerpt from Justice Douglas’ dissenting opinion in the Ginzburg case (1966), in which the Supreme Court affirmed the conviction of a New York publisher for “pandering” Eros magazine.32 The important point of law established there is that, in the case of a publication hovering on the border of obscenity, the fact that it was marketed as sure to titillate (“pandered”), could tip the scales of judgment against it.
In Ginzburg, Douglas took an extreme view of what democracy entails and advocated what sociologists call a “bottom up” theory of obscenity; in short, he was an egalitarian on steroids. But reader be warned: Do not scoff or giggle and be done with it. For Douglas’ oration is not a period piece. It is not a daguerreotype of the Age of Aquarius. It is not the curious product of Justice Douglas’ (admittedly) fertile imagination. (He famously loved the ladies.) It is instead a colorful anticipation of what has become a constitutional principle. He began by noting that “Some of the tracts for which these publishers go to prison concern normal sex, some homosexuality, some the masochistic yearning that is probably present in everyone and dominant in some.” Masochism, he continued,
is a desire to be punished or subdued. In the broad frame of reference, the desire may be expressed in the longing to be whipped and lashed, bound and gagged, and cruelly treated. Why is it unlawful to cater to the needs of this group? They are, to be sure, somewhat off beat, nonconformist, and odd. But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like “rock and roll.” Some are “normal,” some are masochistic, some deviant in other respects, such as the homosexual.
Why, Douglas asked, are these groups to be denied the freedom of the press and expression everyone else enjoys and denied the freedom to communicate in symbolisms important to them?
When the Court today speaks of “social value,” does it mean a “value” to the majority? Why is not a minority “value” cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the “written word” forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the “normal” community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be “utterly without redeeming social importance”? “Redeeming” to w
hom? “Importance” to whom?33
Douglas gave voice to a profound moral subjectivism: At least when it comes to sexual satisfaction, whatever works for the individual is perforce morally acceptable for that individual. There is neither “right” nor “wrong” beyond individual preference, at least so long as one does not conscript an unwilling other into one’s sexual fantasy. From the viewpoint of public authority, there isn’t any practical difference between holding that morality is individuated and saying that (unless a non-consenting party enters the picture) there isn’t any morality at all. This nihilism is a standing mortal threat to legal regulation of pornography for the sake of public morality.
How so?
Moral subjectivism is a mortal threat because it grossly inflates the scope and presumptive legitimacy of “expression.” As Douglas suggests, “freedom of expression” extends effortlessly to whatever individuals and non-government groups want to say or otherwise “express” through spoken or written word, by other communicative conduct, and by symbolic representations (art). Thus a gyrating pole dancer who aims to excite customers enough to part with their money is an “artist.”
This sort of subjectivism is a mortal threat also because it explodes the concept of public morality. Where there isn’t any negative, objective moral judgment that a sexual act (sadomasochism, for example) is wrong, an aspiring legal regulator could not judge any work genuinely harmful. Without such judgments, a proposed morals law is nothing more than the imposition of a majority’s preferences upon an unfairly maligned minority, which simply prefers different but equally valid things. Because an objective moral judgment isn’t possible, there isn’t any possibility of a genuine common good to which all members of society could, in justice, be made to contribute. There can only be—as Douglas suggests—aggregations (larger and smaller) of individuals who happen to share the same interest or taste, some for marriage, and some for bondage.