One of the ironies of recent American history is that free-market success has come to an industry that exploits persons and sex in a society dedicated to the preservation of personal worth and privacy. Here is a new kind of slavery that hides behind the skirts of the First and Fifth Amendments and limits itself only by the limitations of the appeal to prurience. Pornography today enlists the services of not just skid row derelicts or seasoned prostitutes but young people. It sells its product not just to lonely old men but to Americans of all kinds and all ages. Pornography is a huge and profitable business that has managed to thwart most attempts to prohibit or curb it.
Consider some figures released by Daily Variety, the show-business bible. In the major U. S. population centers, some two dozen key cities, The Devil in Miss Jones placed fifth among all movies in 1973, earning $7.3 million, and Deep Throat placed eleventh, grossing $4.6 million. The nearest Disney picture, World’s Greatest Athlete, earned only half of Deep Throat’s income. The Devil in Miss Jones and Deep Throat are not ordinary X-rated movies but examples of hard-core pornography that, as one UPI reported put it, “detail just about every sexual exercise known to man and woman.”
In the short time since the passage of the revised Criminal Code in the 1971 Oregon legislative session, pornography has become a multi-million dollar industry in Oregon. In the same period there has been an alarming increase in certain categories of crime such as rape, and a serious penetration of the state by organized crime. The national income figure for the pornography industry staggers the imagination: it is estimated to exceed a billion dollars.
Not even the most liberal champions of the protections of the First and Fifth Amendments were prepared for the flood of pornography and commercialized sex that washed over the land after the Roth-Alberts decision of the Supreme Court (June 24, 1957). The result of that decision was that literary works like Lady Chatterley’s Lover were given constitutional protection despite their explicitly sexual nature. What the Court did not expect was that once a few “respectable” literary works with explicit sex were given constitutional protection, they would become enormously profitable as pornographic merchandise and open the way for a floodtide of hard-core pornography that claimed in one way or another to serve some serious “educational” purpose. There can be no denying the sheer quantity and pervasiveness of sex profiteering in American culture today. It is simply a misrepresentation to attribute the complaints to a resurgence of Puritan prudery. And it is not constitutional rights that are at stake but the quality of American life itself.
The dimensions of the problem are no longer solely moral or religious, however important these dimensions may be. They are political. Unlike the older libertarian whose beliefs appear, for example, in the findings of the federal Commission on Obscenity and Pornography, the new libertarian of the Freudian and Marxist left recognizes the social importance of the sexual revolution. He does not find “liberated” sexual behavior to be a relatively harmless pastime for those who choose to indulge; rather, it is the prerequisite for a “liberated” social order. Like the biblical Christian, he takes sex seriously because he knows that it eventually affects the whole life-style of a people. It is not surprising, therefore, that the Supreme Court reversed its trend towards permissiveness and in 1973 relieved courts and juries of the intolerable burden of, for example, having to prove that obscene material is “utterly without redeeming social value” before banning it.
The simple fact is that the growing opposition to pornography is not an attempt to undermine constitutional guarantees, nor is it an attempt by a religious minority to impose biblical morality upon a majority that rejects it. It is a response to the growth of sex profiteering. The Supreme Court itself clearly reaffirmed that “obscene material (especially hard-core pornography) is unprotected by the First Amendment” (Chief Justice Burger for the majority in Miller v. California, June 21, 1973).
Two troublesome claims effectively thwart attempts to deal with pornography. These claims are that constitutional protections are threatened or that there is no such thing as pornography that isn’t relative to someone’s tastes. Both of these claims are unjustified.
We all do know what hard-core pornography is. For example, we can say that the movie Deep Throat is an example of what people are referring to when they speak of hard-core pornography. To deny that one did know would be to claim an inability to use the English language. Thus Justice Potter could say concerning The Lovers that while he would not attempt a definition of obscenity, “I know it when I see it.” It is simply a mistaken or deliberately evasive move to claim that one cannot know something unless one is able to give a formally adequate definition. That jurists cannot agree upon criteria of judgment does not mean that they don’t know what pornography is. There is no Platonic essence of pornography to be found by the Supreme or any other court and stated in some final and all-encompassing language. Nor need we lose faith in our ability to know because of disagreements over borderline cases or differences in taste. The problem is not that people don’t know what pornography is—that, for example, they might not known that Deep Throat is an obscene movie. The problem is that they wouldn’t necessarily find it “patently offensive.” Indeed it may be the case that they approve of the movie because it is obscene and not the case that it can’t be obscene because they enjoy it or approve of it.
There can be no doubt that many Americans do approve and want hard-core pornography—after all, they spend millions of dollars on it—and that many others are willing to tolerate it for the sake of those who want it. Yet there is evidence that a still greater number of Americans—mostly in smaller communities—want regulation or outright prohibition.
Libertarians often argue that people ought to be given what they want. Yet when a state legislature overwhelmingly votes to prohibit “activities including but not limited to live public (sex) shows, prostitution and dissemination of obscene materials,” as did the Oregon legislature, it is the pornography industry that organizes a “People Again Censorship” committee and secures the signatures needed to refer the measure to voters. Initially the appeal is to the protections of the First Amendment. If the voters sustain the view of their representatives in the legislature, the pornographers will then turn to the courts to take advantage of labyrinthian legal maneuvers involving matters such as what is specifically prohibited or what are “places of public accommodation.” Eventually the issue will reduce to arguments concerning censorship or definition of the obscene. If it is acknowledged that “obscene material is unprotected by the First Amendment”—to use Chief Justice Burger’s words—then it is argued that it is impossible to establish that any material is obscene because either the Court itself hasn’t adequately defined obscenity, the state law is not specific enough, or the local community standards cannot be identified.
The difficulty in overcoming this situation is illustrated by the fact that the Supreme Court itself in June of this year overruled a Georgia jury that had banned the “borderline” movie Carnal Knowledge on the grounds that its 1973 decisions did not give juries “unbridled discretion to apply local standards …,” and that only works depicting “patently offensive hard-core conduct” failed to enjoy the protection of the First Amendment. Hence the Court acknowledged that local community judgments are no more reliable as standards of judgment than some universal pronouncement of its own. Yet the Court is moving in the direction of curbing hard-core pornography insofar as it is trying to say that the 1973 ruling is about hard-core pornography and not just anything that happens to offend the police or parents of a particular community, such as novels in school libraries that contain four-letter words. I quote from Chief Justice Burger’s 1973 ruling:
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.… Under the holding announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard-core” sexual conduct specifically defined by the regulating state law, as written or construed … [No. 70–73, U.S. Law Week, Vol. 41, pp. 4925–35].
Clearly the Court is moving in a direction that establishes both that hard-core pornography is unprotected and that the American people in their various communities can curb it depending upon how it is “specifically defined by the regulating state law.”
But here the rub comes. Recently a three-judge federal panel in California struck down as unconstitutional California’s obscenity statute on the grounds that it violated Fifth Amendment guarantees of due process because it did not specifically define what types of sexual activity should be prohibited. The panel of judges ordered the community of Buena Park to permit the showing of Deep Throat. And so on an important but purely legal technicality, a particular community’s attempt to curb hard-core pornography was thwarted despite the fact that the Supreme Court has clearly ruled that hard-core is not protected and despite the fact that community tastes were “patently offended.” Perhaps the California statute was badly worded, as the panel claimed, but obviously the municipal judge in Buena Park knew hard-core when he saw it. Not even a jaded inhabitant of downtown San Francisco would have wanted to argue that Deep Throat isn’t hard-core.
The federal panel in Los Angeles that overruled the local judge expressed concern that “there was not fair notice of what California permits or prohibits.” Yet the fact is that if the Supreme Court has not yet been able to come up with a definition that satisfies everyone (including those who have no intention of being satisfied), it is unlikely that any state legislature or local municipality can do much better. Either we allow informed and responsible persons to implement the will of the people or we allow ourselves to be thwarted by paralyzing technicalities. The difficulty of resolving controversial cases is no argument for sidestepping the more clear-cut ones. People must be able to act in behalf of their interests, or else the democratic process will be given over to special-interest groups like the sex profiteers.
Several propositions can be reasonably argued:
1. There are such things as obscenity and pornography if only because we do know what we are talking about when we refer to them even though we may disagree about them or find that we can’t define them. There are, of course, borderline cases. Yet meaningful distinctions can be made between, for example, hard-core and non-hard-core pornography. Chief Justice Burger writes in Miller v. California that the “Court has agreed on concrete guidelines to isolate ‘hard-core’ pornography from expressions protected by the First Amendment.”
2. The difficulties of regulating and prohibiting pornography together with the ever present possibility of giving rise to abuses or violating constitutional protections in no way justifies abandoning the responsibility to regulate or prohibit pornography—any more than the difficulty of enforcing any law with its attending possibilities of abuse justifies failure to enforce it. We do not fear the loss of meat from our tables simply because we regulate its quality in our markets. Past restrictions on pornography did not lead to the loss of First Amendment rights. There is no reason to believe that present measures must necessarily do so. In the Miller v. California ruling (June 21, 1973) Chief Justice Burger argued for the majority that his dissenting colleague’s “doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material” (italics mine). And he argued in the Paris Adult Theater Case (June 21, 1973):
The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions.
In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to the passerby. Rights and interests “other than those of the advocates are involved.” These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.…
As Chief Justice Warren stated, there is a “right of the nation and of the states to maintain a decent society” [No. 71–73, U.S. Law Week, Vol. 41, pp. 4935–55].
3. The issue of regulating or prohibiting traffic in pornography cannot be resolved by an attempt to limit access to these materials to consenting adults only. Whatever is easily available to adults will be easily available to minors. There is no evidence that “for adults only” has effectively restricted the use of cigarettes, alcoholic beverages, drugs, or anything else if such items are readily available to adults. Those libertarians who are sincerely concerned about keeping pornography out of the hands of minors must simply come to recognize that if we are really concerned about minors, we must be willing to forgo for ourselves what is harmful to them. Whatever may be our real or imagined immunity to the effects of pornography, as Christians we cannot escape Jesus’ warning about our responsibility to children.
4. It is not true that sexual behavior is an isolated ingredient of culture having little to do with the quality of the life of institutions of that culture. Evangelicals can agree with New Left radicals but for different reasons. One leading theorist of the New Left, Herbert Marcuse, argues that sexual perversions, for example, perform a critical function in social change: “The perversions … express rebellion against the institutions which guarantees this order” (Eros and Civilization, page 49; see Paul A. Robinson, The Freudian Left, for an extensive discussion). Liberation from establishment repression requires resexualization of social consciousness, according to counterculture spokesmen. Although these thinkers condemn commercialized pornography as a form of decadent capitalism, they paradoxically applaud its dialectical function in paving the way for a consciousness that will make their goals possible. For the evangelical, on the other hand, commercialized pornography is a sin that kills sex as a transcendent and blessed part of human personal life. Pornography abstracts sex from the whole of life, thereby mechanizing and depersonalizing what it ultimately destroys. It is no wonder that biblical strictures are so uncompromising. There is no way in which commercialized pornography in its present proportions can be justified or taken lightly. Even the author of Lady Chatterley’s Lover acknowledged that it is an “insult to a vital human relationship.”
5. What we see and read does influence our attitudes and behavior: otherwise what grounds would there be for our educational efforts? If some books can be good for us, some can be bad for us. Even if it were undesirable to ban any book, it would not follow that pornographic books are harmless. All we might be able to say is that censoring books of any kind including pornographic books is more harmful than not censoring them. Indeed, this is the libertarian position. One cannot with consistency argue, for example, that television violence can or does affect behavior whereas pornography cannot or does not. Either people are educable or they are not. The inability to correlate exactly one’s exposure to Shakespeare or the Bible with one’s educational development has not stopped people from believing that there is a correlation. No one is ever able quantitatively to correlate exposure to any material with learning or behavior modification. Nor is it reasonable to demand, as is often done in obscenity cases, proof that hard-core pornography leads to undesirable social consequences. On the contrary, it is unreasonable to require such proof in those cases where it may be logically impossible to do so. Circumspect jurists have noted that the correlation can be reasonably assumed despite the conclusions of the Commission on Obscenity and Pornography.
6. Profiteering in pornography is no less reprehensible than profiteering in drugs or war. Profiteering is also banned in good things like pure air or water. The market system could not survive unregulated. The significance of the Court’s Ginzburg decision (March 21, 1966) is its findings that the question of the sales promotion of Ginzburg’s magazine Eros was relevant when, for example, he sought out the town of Intercourse, Pennsylvania, for a franking permit and, denied one there, settled for Middlesex, New Jersey. In his opinion concerning the Paris Adult Theater Case, Chief Justice Burger specifically refers to “the tide of commercialized obscenity” as the primary concern of his findings. It is not the repression of ideas or even the meddling invasion of local libraries that is the present thrust of anti-pornography concern. It is the commercial abuse of sex. In a pluralistic and open society such as ours, we cannot hope to impose by law the standards of a biblical morality, but we can correct gross abuses such as the commercial exploitation of “prurient interest.” And there is widespread public support for this effort.
7. Finally, there is no such thing as a censorless free society. Ours is not a limitless freedom, nor could it be. The only perfect embodiment of freedom is the expression of the indwelling spirit of Christ himself. There is always a context of competing and mutually supporting values where the absence of censorship not only is not absolute but may even represent a relatively minor value. The states that ratified the First Amendment did not regard it as applying to all expressions or forms of expression whatever. The purpose of the First Amendment was to “assure unfettered interchange of ideas” within limits. In this world, freedom thrives where its limits are well delineated. We would not allow a theatrical producer to stage a suicide even if the performance were fully voluntary. Nor would we allow a revival of the Roman games with the tearing of human flesh by lions. There are good reasons for banning public executions. We do censor many things and have done so for many years without bringing down the First Amendment. As Chief Justice Burger observed in the Paris Theater Case, “unlimited play for free will … is not allowed in ours or any other society.”
