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.