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.