Obscenity—Forget It

An attorney who helped to win landmark decisions against censorship in the 1960s presents some tough but fair-minded means of dealing with the flood of printed and filmed material that abuses the young and assaults our privacy.

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.

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