There is, rather suddenly, a resurgence of interest in the legal field that goes by the name "obscenity." Not that it ever lacked for interest. The conjunction of sex and politics is irresistible. But now there is more than interest; there is consternation—on the part of those who fear for our morality, on the part of those who fear the First Amendment will founder on the convictions of Harry Reems and Larry Flynt.
I suggest we abandon the word obscenity. I do not mean that the law should ignore all the many and varied things that legislatures and courts have tried deal with under this rubric. My suggestion rather is that we drop the word and turn our attention to the social interests actually involved. Then, perhaps, some sensible law-making and law enforcement will follow.
The law is verbal art. It depends for its effectiveness on compact, muscular words; overgrown, flabby words are useless in the law, worse than useless—confusing, damaging. "Obscene" as a description of the morally outrageous or the intellectually monstrous continues to be useful (and generally has little to do with sex). "Obscene" for legal purposes should be discarded altogether. It carries an impossible burden of passionate conviction from both sides of the question. And it diverts attention from real issues. The present litigation over what is called obscenity involves serious public concerns which the word obscures and distorts.
Draw back a bit. Exactly eleven years ago a battle against literary censorship came to a close. What had been censored, for three hundred years, was called, in law, obscenity. Obscenity in its traditional sense—impermissible writing about sex, impermissible either because of what it described or because of the words that were used—was at an end. Writers would be able to write as they pleased on the subject of sex, and use whatever language they thought best. They would no longer have to keep a mind's eye on the censor; they could pay full attention to their art and ideas. The field of legal struggle would move to other forms of expression—films, the stage, television, photography.
So much has changed in the last eleven years that one who had not lived through earlier times would find the freedom that writers now enjoy unremarkable. Yet in the few decades just then ended, such works as Dreiser's An American Tragedy, Lillian Smith's Strange Fruit, and Edmund Wilson's Memoirs of Hecate County had been the subjects of successful criminal prosecution. Recently, in contrast, there has been no suppression of books at all. Obscenity prosecutions are now directed at motion pictures and stage performances and magazines (the last not for their words but for their pictures).
The contest concluded in 1966 was essentially between accepted sexual morality (which sought to govern what was expressed as well as what was done) and the guaranties of the First Amendment. The books declared obscene had been attacked and suppressed for a double reason: because, in the view of the ruling group, they induced immoral behavior, and because their open publication was immoral in itself. The very first brief in the very first case of the series that changed the law—the trial of Lady Chatterley—put the question this way: "Should the courts chain creative minds to the dead center of convention at a given moment in time?" Conventional sexual morality was what was meant and understood.
Whether or not you agree with the view of those who sought to preserve morality by limiting speech and writing, obscenity as a legal concept was a fair description of what they objected to. It had been attacked as indefinable, but it was no harder to define, no vaguer, perhaps less vague, than other concepts the law engages every day—"the reasonable person," for example, or "good faith," not to mention "fair trial." Its scope had varied over the years, but that is true of all legal concepts. The important point for present purposes is that however uncertain its boundaries, the legal term "obscenity" served a specific social goal.
The real difficulty—which had not been suggested as a difficulty until the twentieth century was well under way—was that the pursuit of the goal might run afoul of the First Amendment. Among the things settled in the series of cases that culminated in the Fanny Hill decision was that the attempt to enforce these moral standards through anti-obscenity laws must yield to the Amendment.
The First Amendment protects speech and press. Not all speech and press; there are some exceptions—information helpful to an enemy in wartime, for example, or fraudulent statements to induce the purchase of stocks and bonds. (And even speech and press protected by the First Amendment remain subject to some regulation. You may not, without municipal permission, choose to hold a meeting in the middle of a busy street and proclaim your thoughts while traffic waits.) But obscenity is no longer an exception to freedom of speech and press in the traditional meaning of those terms. And it ought not be an exception for speech and press more broadly defined—communication in general.
"Suppress," however, means throttle altogether. Even the liberal justices of the present Supreme Court, the dissenters from the Burger view, have allowed that expression can be in certain ways restricted. That is, the citizen who has something be wishes to communicate may not be silenced completely—he can be as obscene about it as he likes—but the flow of his expression can be channeled. These liberal justices have said that the First Amendment is not infringed by anti-obscenity laws that seek to safeguard children or to prevent the infliction unwanted displays on a captive audience.
Another limitation on expression occurs when expression is mixed with action. Consider the poor soul arrested for indecent sure. No doubt he has something to communicate, if it is only "look at me," but what he does is a1so act, and there is no possibility the Supreme Court would preclude the prosecution of the flasher on the theory that he is only invoking First Amendment rights.
The most libertarian of our justices, Hugo Black and William Douglas, carved out and set aside "action brigaded with expression." Even while they were advancing their thesis that the First Amendment must be given an "absolute" construction—that speech and the press must be subject to no restraint whatever—they said that when behavior was involved, a different question was presented. The situation must be analyzed to determine which element, action or expression, can be said to dominate. The control of conduct has never been restricted by the First Amendment. Indeed, the control of conduct is the primary business of government. The prosecution of Harry Reems, actor in Deep Throat, poses an interesting problem. The film was made in Florida, where the actors performed their acts; Reems was prosecuted in Tennessee, a place where the film was shown. Behavior more than expression? In Florida maybe, it seems to me; in Tennessee, no.
It is in these three fields that legitimate problems remain—the protection of children, the unwilling audience, and action mixed with expression. In each instance, however, we would do better to use legal concepts other than obscenity.
When we are dealing with behavior rather than expression, the only question is what kind of behavior we ought to regulate—whether, for instance, any kind of private sex between (or among) consenting adults should be prohibited. The answer does not involve the First Amendment. Laws controlling conduct rather than communication, as we have seen, do not infringe freedom of speech or press.
The most prominent current topic on which this distinction may help arises from municipal efforts to deal with the ugly sore of commercial sex—Boston's delimitation of its "Combat Zone," Detroit's recently upheld dispersal ordinance, New York's attempt to restore the center of Manhattan to something like what it used to be. Prostitution, with its corollary crimes, is present. So are pornographic book stores. So are hard-core films. We tend to treat them as though they all present a single legal problem. They do not. Prostitution is behavior, not expression. Whether it should be licensed, or simply decriminalized, or continue to be prosecuted, is a troubling question, but it has nothing to do with the First Amendment. Prostitution is clearly on the conduct side of the conduct-expression divide.
But films and books and magazines are on the other side, and here the other concepts enter, and another distinction. We must distinguish between the willing audience and the captive audience. You can say or write a show what you please, but only to those who are willing to listen, or read, or view. Tropic of Cancer printed in volume form is one thing; Tropic of Cancer blared out by bullhorn in a public square is quite another. The right to express oneself is not the right to intrude expression on those who do not want it.
Privacy has been recognized as a constitutional right. It is actually a cluster of rights, one of which is the right to be let alone. Exhibition inside theaters is in this sense private; no one is compelled to enter. The same for books and magazines; no one is forced to read them. But once the stuff spills onto the streets—on theater marquees or posters, in storefront windows or newsstand displays—the privacy of those outside is assaulted. The liberty of those who like pornography is not inconsistent with the liberty of those who don't. Neither should be constrained by law&mdashthe one denied the means to gratify his voyeurism, the other forced to share it. If the people wish to forbid public exhibition of certain kinds—exhibition which dismays some of those who are trying to enjoy their clear right to use the streets and sidewalks free of assault—there is no First Amendment reason it ought to stand in the way. It need not be labeled obscenity. What is thrust upon the passerby can be regulated because the citizens feel it is disagreeable or offensive or unhealthy—that is, if there are enough such citizens so that under our democratic processes they constitute a majority.
Privacy is the modern idea that inheres in this situation. An ancient legal idea reinforces it. It is the traditional and useful and sensible idea of nuisance. In New York, 42nd Street constitutes a public nuisance. No need to cogitate and strain over whether the displays are obscene. Let the movies be shown in the theaters, but restrict, if the voters wish, what appears on their marquees. Let the magazines be sold—let the pimps to masturbators think of themselves as publishers—but keep their product off the front of newsstands.1
Finally, child abuse. Although there is disagreement about how their cultural environment affects the emotional development of children, there is consensus that the environment is a powerful factor. (If the reader of this piece has a liberal bent, it may help his thinking on the subject to concentrate not on sex but on violence.) A legislative effort to shield the child from certain representations of sex (or violence) does not, in the view of the justices most concerned with freedom, infringe the First Amendment. Nor does the legislature have to prove that ill effects inevitably flow from what it prohibits. Since the First Amendment is not involved, the only constitutional inhibition is the due process clause, and there the test is not whether the legislature is absolutely right, or even sure of the efficacy of its statute. The test is whether there is a rational basis for its concern, and whether what it tries to do about it is not altogether foolish. The established constitutional formula for testing legislation against the due process clause is that it not be "arbitrary and unreasonable."
It is not arbitrary or unreasonable for the legislature to conclude that inducing children to engage in sexual activity can harm them. Nor is it arbitrary or unreasonable to prohibit the photographing of children who have been induced to do so, or to interdict the publication and sale of magazines in which the photographs appear. The publisher and the seller are principals in the abuse. Without them, it would not occur.
There is also abuse of children in another situation—where the child is audience rather than subject. Here television is the prime subject of concern; children are overexposed to what comes through the tube. It will not do to say the family should exercise control. Pious introductions warning of "mature theme" and advice to exercise "parental guidance" are stupid, unless they are cleverly meant to be self-defeating, and in either event they are revolting. If the children are not watching, the caveat has no purpose; if the children are watching, the caveat is a lure. This is obscenity in its larger, nonlegal sense.
Our habits have come to the point where the family in the home is the captive audience par excellence. Neither the child's own judgment nor, as a practical matter, the authority of parents can make effective choices. A legislative attempt to control the content of television programs that had a reasonable basis in the aim to safeguard children would not violate the Constitution.
Our most liberal justices have pointed out that the world of the child is not the world of the adult, and efforts to limit expression have a special place where children are concerned. (Broadcasters who resist control are making a claim to be free in the sense the right wing often uses—freedom to exploit monopolies.) Here again the standard is not obscenity.
Apart from these three fields, the First Amendment demands that we must put up with a lot of what is disagreeable or even damaging. The point made by feminists—that porno films and magazines demean and exploit women—is a strong one. (It is even stronger than they think: the things they object to demean and exploit all people.) But the First Amendment, I believe, requires that we let the material be produced and published. So long as expression is involved and intrusion is not, and there is no question of child abuse, our arguments should be addressed not to the courts but to the producers and sellers of entertainment. That is not an entirely futile effort. The public can be affected by these arguments, and it is the public after all that makes the selling of entertainment a profitable venture. To the extent that these arguments do hot prevail, we must accept the fact that the freedoms guaranteed by the First Amendment are costly freedoms. Very costly. Worth the cost, I would say.
The First Amendment has lately had to contend with more than its old enemies. The effectiveness of any law—including our fundamental law, the Constitution—depends on the people's perception of it. The prime example of a law destroyed because too many saw it as fatuous was Prohibition. Freedom of the press has trouble enough as an operating concept—as distinguished from an incantation—without having to defend itself from those who like to call themselves its friends.
The voguish furor about anti-obscenity laws diminishes the public perception of the First Amendment in two ways. One is the silliness-—calculated or naivé—of so many who rush to grab and wave the First Amendment banner. Lawyers defend topless bars with phrases out of Areopagitica. Blind to the fact that all constitutional law is a matter of degree, an actor solemnly proclaims: "Today Harry Reems, tomorrow Helen Hayes." Fatheadedness rarely helps a cause.
The other source of debilitation is a sort of constitutional imperialism. Freedom of expression is not our only liberty. It is, to my mind, our most important liberty, the basis of all others. But it is part of an entire structure. It is entitled to no imperium; it must democratically live with other guaranties and rights.
The First Amendment has serious work to do. Invoked too often and too broadly, it can grow thin and feeble. The restrictions I suggest are minimal, and specific, and—with the anachronistic concept of obscenity discarded—they allow more freedom than the courts have granted up to now. And, I think, they may help to avoid a dangerous dilution of First Amendment guaranties.
People to whom I have broached the idea submitted in this essay have asked about its evolution. What goes on in the mind of a lawyer who once attacked obscenity laws so hard and now suggests legal restrictions on some of the things that are commonly called "obscene"?
A novelist, speaking from the feminist side, reads me an essay she is doing. It mentions "Charles Rembar, the attorney who escorted Lady Chatterley and Fanny Hill to their triumphant American debuts, thereby unwittingly spreading his cloak—-and ours—in the muddy path for a pack of porno hustlers."
Not unwittingly, I say, and then I quote from The End of Obscenity:
The current uses of the new freedom are not all to the good. There is an acne on our culture. Books enter the best-seller lists distinguished only by the fact that once they would have put their publishers in jail. Advertising plays upon concupiscence in ways that range from foolish to fraudulent. Theatre marquees promise surrogate thrills, and the movies themselves, even some of the good ones, include "daring" scenes—"dare" is a child's word—that have no meaning except at the box office. Television commercials peddle sex with an idiot slyness.
Among the lesser detriments of the new freedom is the deterioration of the television situation comedy, an art form that has not been altogether bad and has had, indeed, high moments. It suffers now from a blue-brown flood of double-meaning jokes, stupidities accompanied by high cackles from the studio audience. (How do they gather those people? Or is it only a Moog synthesizer?) On the other hand, among the more important benefits are the intelligent discussions, on television, of subjects that could not be publicly discussed before; it is difficult to remember, but a documentary on birth control could not have been aired some years ago. Also, just possibly, a new and wonderful trend in journalism: It may no longer be feasible to sustain a bad newspaper by loading it with leers; since sex stories are much less shocking today, the old circulation formula may be hard to work.
Do the suggestions I make jeopardize the freedom won eleven years ago? I think not. In fact, in terms of what may be suppressed, they expand it. The freedom was won for the printed word; for other forms of expression, the decisions carried implications of greater liberty than had theretofore been enjoyed, though not as complete as writers would enjoy. In arguing the cases, I said that not all media were the same, and called attention to the points that underlie the approach outlined above—the protection of children, the problem of action mixed with expression, and one's right not to be compelled to constitute an audience. (Don't pluck my sleeve as I am passing by, stop poking your finger on my chest; freedom includes freedom from your assailing my senses—these are fair demands that books don't interfere with.)
All that is new in my position is the proposal that we come to the end of obscenity in another sense and turn our attention to the things society may rightfully care about.
The proposal is made with the thought that it can make the First Amendment stronger.
These paragraphs may raise two questions in the reader's mind. I have stressed, in other writings, that the safeguards of the First Amendment are designed for minority views: there would be no need for the amendment if all we wanted to protect was what the majority deemed acceptable. Hence the references above to "a majority" and to "what the people wish" may seem, if one reads too quickly, rather odd. The answer is that these paragraphs deal with situations to which, if the prescription is followed, the First Amendment does not extend. And I am referring to the kind of thing at which anti-obscenity laws are aimed, not to political speech.
The second question is, How do you do it? How do you provide for the permission to publish and the prohibition of display—the permission to exhibit in closed theaters and the control of what is out on the street? Fifty difficult hypotheticals can be rattled off in fifty minutes. But this is true of almost any statutory regulation. Laws are hard to apply and enforce; this does not mean we should not have them. When, for instance, does merger become monopoly? When does an efficient business arrangement become restraint of trade? The fact that these are large, perplexing questions, which spawn thousands of more perplexing little questions, does not mean we ought not have our antitrust laws. To deal with all the legal questions my proposals might bring in their train would require a legal treatise. This short piece is necessarily elliptical, and I am not trying to draft the statutes. But I believe such statutes can be drawn, and enforced with fair success.