by Неизвестный
I counseled against scoffing at Douglas’ essay. The reason is that events made him a prophet. I am not here referring to the bacchanal turn of our culture since 1966, which he may have anticipated and which he surely welcomed. I refer to our constitutional law, where an acidic nihilism has come (probably to Douglas’ surprise, if there are indeed surprises in the hereafter) to define “freedom of expression.” This development was succinctly captured in the June 2008 child pornography case, U.S. v. Williams, by dissenting Justices Souter and Ginsburg: “True, what will be lost is short on merit, but intrinsic value is not the reason for protecting unpopular expression.”34 The judgment that some “expression” qualifies for constitutional protection does not include a moral evaluative criterion of any kind.
IV. A LEGAL STRATEGY FOR REGULATING PORNOGRAPHY
It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action, or by an injunction, or by some or all of these remedies in combination, is a matter within the legislature’s range of choice. If New York chooses to subject persons who disseminate obscene “literature” to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies.35
— Kingsley Books, Inc., v. Brown
Kingsley Books, decided the same day as Roth, is still good law: Legal regulation of pornography is not limited to what can be accomplished by and through criminal prosecution. This is good news, because one can now expect scant return on criminal prosecutions. The reasons they are nearly obsolete have little to do with the legal changes we’ve examined and almost everything to do with technological and cultural developments over the last decade, especially the internet. Legal regulation of pornography today must chart a distinctive course. In brief conclusion, I shall describe the legal situation today, and then suggest three steps to develop more creative and effective civil policies to regulate pornography.
The legal rules governing prosecutions have undergone little relevant change since 1957. Police officers’ access to evidence (such as porn DVDs and the like) is limited, as it always has been, by restrictive rules governing search and seizure; for example, by the Fourth Amendment’s requirement of judicial approval of warrants based upon probable cause, which often required judges to view a purloined copy of the suspect film or book before signing the warrant. Convictions have always depended upon the unanimous verdict of twelve jurors on evidence beyond a reasonable doubt. The constitutional doctrines of vagueness (rooted in Due Process) and overbreadth (a First Amendment test) have long placed the burden of clearly distinguishing obscenity from mere pornography on the State, not on the defendant. There are and always have been a very limited number of public prosecutors. They long have had a monopoly on initiating criminal cases, and many other pressing demands upon their attention. Never did they mount a numerically impressive number of criminal cases against pornographers.
One possible change that has only made such prosecutions even more difficult is that, given the widespread and largely shameless use of pornography today, jurors may hesitate now as they never did before to return guilty verdicts against even those who sell obscene materials, so long as the material was traded between consenting adult users. (Child pornography cases are another matter.) But this is simply to say that cultural changes can affect jurors’ decisions. Jury nullification would be further encouraged by the use of enforcement techniques that intruded upon the home, or that interfered with the lawful use of the internet. But this is simply to say that evolving notions of privacy and technological change can affect criminal trials.
On the demand side, it has been the case for forty years that at-home consumers of material that meets the Miller test for “obscenity” cannot be prosecuted. That is the legacy of the Stanley case (1969). This odd decision did not, however, extinguish “demand-side” prosecutions altogether. In 1969, pornography consumers could not be couch potatoes. They had to go to a disreputable theater or, at least, to a stag party to see a porn-film. They had to find a seedy bookstore in Times Square to acquire the latest skin magazine. Even where there weren’t any police lurking, exposure and shame were constant menaces. (Recall the scene in Woody Allen’s Bananas, where an embarrassed Fielding Melish used Time and Newsweek to conceal his copy of Orgasm from the other customers.) Now would-be consumers can find everything they want at home, on the internet or even Facebook. Stanley is thus a real roadblock to demand-side prosecutions: One’s home may now be one’s porn-castle.
On the supply side, police authorities (including postal inspectors and customs officials) could until relatively recently target certain specific areas and persons for supply-side prosecution, and have an appreciable impact upon supply if they succeeded. (Indeed, to an extent few yet appreciate, this country’s porn industry was, until the 1980s, very much controlled by organized crime families.) Bookstores, movie theaters, and warehouses could all be closed down; materials from overseas distributors could be stopped at customs. Now it is all quite different. There aren’t any choke points of entry to be watched, consortiums of powerful producers or distributors to break up, few places of public amusement to padlock. Instead, entry costs for production are minimal—anyone can post an obscene video on a website. Overseas distributors of internet porn are beyond the reach of our law.
The takeaway from all these considerations is this: Public authority is not any time soon going to attempt to prosecute more than a tiny fraction of the vast universe of obscenity cases, not nearly enough for the occasional conviction to deter other users.
But these limitations on potential criminal law enforcement are not the death knell for the possibility of reducing pornography through the criminal law. Any conduct defined as a crime is usually thereby morally stigmatized, and—even if the cases are rarely prosecuted—that stigmatization sometimes stimulates social and cultural disapproval. During the last generation the criminal law’s crackdown on drunk driving has, in my judgment, instigated and not just reflected the cultural marginalization of a practice that was not long ago winked at. Viewed as a percentage of real-world occurrences, prosecutions for recreational drug consumption are rare. But the presence of the pertinent criminal laws on the books nonetheless reinforces the social message that doing drugs is bad for you. And these criminal laws make possible the many collateral legal and social sanctions for drug use, such as questions about it on government job applications and the “zero-tolerance” policies of schools.
The law’s contribution to public morality has nonetheless always been secondary to that of cultural authorities and popular mores. The law has an important but subsidiary role in culturally marginalizing pornography. It is time for more creative civil—that is, non-criminal—legal policies designed to do just that.
This new strategy would rely upon a proliferation of non-governmental initiators and initiatives to combat pornography by morally stigmatizing it. These proposed legal tools would not traffic in the strict standards of proof in criminal proceedings, nor would they depend upon police methods of obtaining evidence. They would shift the burden of vagueness—the gray area of uncertain definition at the border of soft- and hard-core pornography—to enforcement targets and away from those seeking to protect public morality. One might compare this allocation of the risk of uncertain application of law to that encountered in cases of alleged sexual harassment. To be sure that they do not incur the costs of a successful action for harassment, many institutions in our society impose a “risk management” perimeter around possibly suspect conduct. Thus the birth of house rules against coarse or suggestive language, and unwanted gestures and the like. Finally, this new strategy does not depend for its success upon any change in the present First Amendment landscape, including the unfortunate and anomalous Stanley holding.
Here are three proposals, broadly described.
First, call upon legislatures to create a new private (civil, not criminal) right of action, called the “negligent exposure of a minor or an unwilling adult to obscene materials.” This civil action would expand and toughen the reach of existing criminal laws against endangering the moral welfare of minors, and perhaps of civil suits to recover for emotional offense to adults. The proposed cause of action would be provable by a preponderance of the evidence and would—because of the inherent difficulty of calculating a money award adequate to making a plaintiff “whole”— have to carry stipulated damages—at least a five-figure award—sufficient to deter such misconduct.
This new legal provision could stipulate further that a “pattern” of such negligence consisting of two or more specific acts or omissions which meet the definition of the civil wrong would result in the kind of catastrophic damages presently recoverable under RICO (Racketeer Influenced and Corrupt Organizations Act). The effect of this new law could be expanded by adapting the British definition of obscenity to serve as a pleading and proof requirement: any material that appeals predominantly to the prurient interest and is patently offensive. That this provisionally obscene matter possessed serious value would be provable by the accused as an affirmative defense. Because we would not be dealing here with a criminal offense, it might be possible to adopt this approach without having to persuade the Supreme Court to change the meaning of Miller.
Second, as an exercise of its spending power, Congress, or a particular state, could make a condition of any money grant that the grantees enact, publish, and enforce policies governing the use of any computers under the recipient’s control, which policies effectively eliminate the use of grantee’s facilities to visit obscene websites, to receive obscene messages and images, and to prevent their use in any other way to connect to obscenity. The recipients would have to impose effective penalties for any violation of these policies. They would be further advised that their workplace is subject to unannounced inspections, and that their policies and procedures will be regularly audited. The penalty for institutional failure to comply would be the revocation of the grant.
Third, individuals who seek government employment for which moral character is especially relevant—say, as a federal prosecutor or a public school teacher—could be required to pledge that they will not knowingly visit an obscene website or download obscene materials during the time they are employed in the charactersensitive job. The long-standing legal definition of obscenity that has never been accorded First Amendment protection could be included within the job description as constituting the forbidden, or no-fly zones. After a while, the requirement could be expanded to include additional positions and an affirmation that one has not visited such a site in, say, the preceding year.
CONTRIBUTORS
Hadley Arkes is the Edward Ney Professor of American Institutions at Amherst College, where he has been on the faculty since 1966. He has published five books with the Princeton University Press—Bureaucracy, the Marshall Plan, and the National Interest (1972), The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994)—and he now has published two books with Cambridge—Natural Rights and the Right to Choose (2002) and Constitutional Illusions and Anchoring Truths: The Touchstone of Natural Law (2010). Professor Arkes has become known to a wider audience through his writings in the Wall Street Journal, the Washington Post, the Weekly Standard, National Review, Crisis, and First Things. Active in the pro-life cause, he was the main advocate, and architect, of the bill that became known as the Born-Alive Infants Protection Act of 2002. Professor Arkes is the founder of the Committee for the American Founding at Amherst, and he served, in 2002–2003, as Visiting Professor of Public and International Affairs in the Woodrow Wilson School of Public and International Affairs, and as Vaughan Fellow in the James Madison Program in American Ideals and Institutions, both at Princeton University.
Gerard V. Bradley has been Professor of Law at the University of Notre Dame since 1992. He began teaching law in 1983 at the University of Illinois. Prior to that, Professor Bradley was a trial lawyer in the Manhattan District Attorney’s Office. He graduated summa cum laude from Cornell Law School in 1980. At Notre Dame, Professor Bradley is co-director of the Natural Law Institute, and is editor-in-chief (with John Finnis) of The American Journal of Jurisprudence. He is Chair of the Academic Committee of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute (in Princeton, New Jersey), and is a visiting fellow at the Hoover Institution of Stanford University. Professor Bradley served for many years as President of the Fellowship of Catholic Scholars.
Ana J. Bridges is an Assistant Professor of Clinical Psychology at the University of Arkansas. She received her BS from the University of Illinois at Urbana-Champaign, her MS from Illinois State University, and her PhD from the University of Rhode Island. Dr. Bridges also completed her predoctoral training in clinical psychology at the Medical University of South Carolina. She has authored or co-authored more than forty articles, book chapters, and conference presentations in the areas of sexuality, ethnic diversity, and assessment. Dr. Bridges’ research has been funded by agencies such as the Society for the Scientific Study of Sexuality. Recognized for her contributions to the field of sexuality, Dr. Bridges’ research has been featured in publications such as Psychology Today, Guardian UK, Glamour magazine, and The Price of Pleasure, an educational documentary film about the pornography industry.
Norman Doidge is a psychiatrist, psychoanalyst, researcher, and essayist, and serves on the Research Faculty at the Columbia University Center for Psychoanalytic Training and Research, in New York, and in the University of Toronto’s Department of Psychiatry. His book, The Brain That Changes Itself: Stories of Personal Triumph from the Frontiers of Brain Science (New York: Viking Penguin, 2007), has been a #1 best seller in Canada and Australia, and is a New York Times best seller, on the extended list for eleven months. The book is available in over seventy countries, and it is also a documentary film. It was chosen as one of the top science books of 2007 by amazon.com.
K. Doran is a graduate of Harvard and Princeton and is a 2009–2010 Bradley Visiting Fellow at the Witherspoon Institute.
Donna M. Hughes is a professor and holds the Eleanor M. and Oscar M. Carlson Endowed Chair in Women’s Studies at the University of Rhode Island. She is an internationally leading researcher on sex trafficking. Professor Hughes has completed research on the trafficking of women and girls for sexual exploitation in the United States, Russia, the Ukraine, and Korea. She is frequently consulted by governments and nongovernmental organizations on policies related to the trafficking of women and girls for sexual exploitation. Professor Hughes researched and wrote two reports for the Council of Europe on the use of new information technologies for the trafficking of women and girls. She is currently researching sex trafficking in the production of pornography. Professor Hughes has testified before the United States House International Relations Committee, the Senate Foreign Relations Committee, the Moscow Duma, and the Czech Parliament. She is a co-founder of Citizens Against Trafficking. Professor Hughes teaches undergraduate and graduate courses on human trafficking and sexual violence.
Mary Anne Layden is a psychotherapist, Director of Education, and Director of the Sexual Trauma and Psychopathology Program at the Center for Cognitive Therapy in the Department of Psychiatry at the University of Pennsylvania. Dr. Layden specializes in the treatment of victims and perpetrators of sexual violence, sexual addicts, and sex industry members. She has co-authored with Linnea Smith a chapter titled “Adult Survivors of the Child Sexual Exploitation Industry” in Medical, Legal, and Social Science Aspects of Child Sexual Exploitation: A Comprehensive Review of Pornography, Prostitution, and Internet Crimes. Dr. Layden has testified before the United States Congress on five occasions, focused on issues of sexual violence, the sexual exploitation
industry, and the media. She has lectured extensively both in the United States and abroad on cognitive therapy, childhood sexual trauma, sexual addiction, the sexual exploitation industry, and imagery techniques.
Jill C. Manning is a Licensed Marriage and Family Therapist who specializes in clinical work related to pornography and problematic sexual behavior. She has been featured in television programs and documentaries, and on radio talk shows. Dr. Manning has authored numerous book chapters and academic journal articles on the subject of pornography. In 2005, she was selected to be a visiting Social Science Fellow at the Heritage Foundation in Washington, DC, and as a result of her research there, Dr. Manning testified before a Senate Subcommittee on the Harms of Pornography. A native of Calgary, Alberta, Canada, she currently resides in Denver, Colorado, with her husband and daughter.
Pamela Paul is an author and journalist who writes about social and cultural issues, demographic trends, consumer culture, psychology and health, and family. Her first book, The Starter Marriage and the Future of Matrimony, was named one of the best books of 2002 by the Washington Post; her second book, Pornified, was named one of the best books of 2005 by the San Francisco Chronicle. Ms. Paul’s latest book, Parenting, Inc., an investigation of the “parenting” business, was published in April 2008 by Times Books. Her work has appeared in the Economist, the New York Times, Time magazine, the New York Times Book Review, the Washington Post, the National Post, Psychology Today, and other national and international publications.