OBSCENITY

Obscenity laws embarrass ALEXIS DE TOCQUEVILLE'S claim that there is "hardly a political question in the United States which does not sooner or later turn into a judicial one." It is not merely that the obscenity question became a serious judicial issue rather much later than sooner. It is that the richness of the questions involved have been lost in their translation to the judicial forum.

Obscenity laws implicate great questions of political theory including the characteristics of human nature, the relationship between law and morals, and the appropriate role of the state in a democratic society. But these questions were barely addressed when the Court first seriously considered a constitutional challenge to obscenity laws in the 1957 cases of ROTH V. UNITED STATES and Alberts v. California.

The briefs presented the Court with profoundly different visions of FIRST AMENDMENT law. Roth argued that no speech including obscenity could be prohibited without meeting the CLEAR AND PRESENT DANGER test, that a danger of lustful thoughts was not the type of evil with which a legislature could be legitimately concerned, and that no danger of antisocial conduct had been shown. On the other hand, the government urged the Court to adopt a balancing test that prominently featured a consideration of the value of the speech involved. The government tendered an illustrative hierarchy of nineteen speech categories with political, religious, economic, and scientific speech at the top; entertainment, music, and humor in the middle; and libel, obscenity, profanity, and commercial PORNOGRAPHY at the bottom. The government's position was that the strength of public interest needed to justify speech regulation diminished as one moved down the hierarchy and increased as one moved up.

In response to these opposing contentions, the Court took a middle course. Relying on cases like BEAUHARNAIS V. ILLINOIS (1952), the Court seemed to embrace what HARRY KALVEN, JR. , later called the TWOLEVEL THEORY of the First Amendment. Under this theory, some speech is beneath the protection of the First Amendment; only that speech within the amendment's protection is measured by the clear and present danger test. Thus some speech is at the bottom of a two-level hierarchy, and the Roth Court sought to explain why obscenity deserved basement-level nonprotection.

History, tradition, and consensus were the staple of the Court's argument. Justice WILLIAM J. BRENNAN explained that all "ideas having even the slightest redeeming social importance" deserve full First Amendment protection. But, he said, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Then he pointed to the consensus of fifty nations, forty-eight states, and twenty obscenity laws passed by the Congress from 1842 to 1956. Finally, relying on an OBITER DICTUM from CHAPLINSKY V. NEW HAMPSHIRE (1942), the Court explained that obscene utterances "are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

From the perspective of liberal, conservative, or feminist values, the Court's reliance on the Chaplinsky quotation amounts to a cryptic resolution of fundamental political questions. Liberals would advance several objections. Some would suggest that the Court underestimates the contribution to truth made by sexually oriented material. David Richards, for example, has suggested that

pornography can be seen as the unique medium of a vision of sexuality … a view of sensual delight in the erotic celebration of the body, a concept of easy freedom without consequences, a fantasy of timelessly repetitive indulgence. In opposition to the Victorian view that narrowly defines proper sexual function in a rigid way that is analogous to ideas of excremental regularity and moderation, pornography builds a model of plastic variety and joyful excess in sexuality. In opposition to the sorrowing Catholic dismissal of sexuality as an unfortunate and spiritually superficial concomitant of propagation, pornography affords the alternative idea of the independent status of sexuality as a profound and shattering ecstasy [1974, p. 81].

Even some liberals might find these characterizations overwrought as applied to Samuel Roth's publications, such as Wild Passion and Wanton by Night. Nonetheless, many of them would argue that even if such publications have no merit in the MARKETPLACE OF IDEAS, individuals should be able to decide for themselves what they want to read. Many would argue along with JOHN STUART MILL that "[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Such a principle is thought to advance the moral nature of humanity, for what distinguishes human beings from animals is the capacity to make autonomous moral judgments. From this perspective, the Roth opinion misunderstands the necessity for individual moral judgments and diminishes liberty in the name of order without a proper showing of harm.

Conservatives typically agree that humans are distinguished from animals by their capacity to make rational moral judgments. They believe, however, that liberals overestimate human rational capacity and underestimate the importance of the state in promoting a virtuous citizenry. Moreover, they insist that liberals do not sufficiently appreciate the morally corrosive effects of obscenity. From their perspective, obscenity emphasizes the base animality of our nature, reduces the spirituality of humanity to mere bodily functions, and debases civilization by transforming the private into the public. As Irving Kristol put it, "When sex is a public spectacle, a human relationship has been debased into a mere animal connection."

Feminists typically make no objection to erotic material and make no sharp separation between reason and passion. Their principal objection is to the kind of sexually oriented material that encourages male sexual excitement in the domination of women. From their perspective, a multibillion dollar industry promotes antifemale propaganda encouraging males to get, as Susan Brownmiller put it, a "sense of power from viewing females as anonymous, panting playthings, adult toys, dehumanized objects to be used, abused, broken and discarded." From the feminist perspective, the Roth opinion's reference to the interests in order and morality obscures the interest in equality for women. From the conservative perspective, the opinion is underdeveloped. From the liberal perspective, it is wrongheaded.

Liberals gained some post-Roth hope from the Court's treatment of the obscenity question in STANLEY V. GEORGIA (1969). In Stanley the Court held that the possession of obscenity in the home could not be made a criminal offense without violating the First Amendment. More interesting than the holding, which has since been confined to its facts, was the Court's rationale. The Court insisted that "our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." It denied the state any power "to control the moral content of a person's thoughts." It suggested that the only interests justifying obscenity laws were that obscene material might fall into the hands of children or that it might "intrude upon the sensibilities or privacy of the general public."

Many commentators thought that Stanley would be extended to protect obscene material where precautions had been taken to avoid exposure to children or nonconsenting adults. Indeed such precautions were taken by many theaters, but the Supreme Court (the composition of which had changed significantly since Stanley) reaffirmed Roth and expanded on its rationale in Paris Adult Theatre I v. Slaton (1973).

The Court professed to "hold that there are legislative interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to the juvenile and the passerby. 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." The Court did not suggest that the link between obscenity and sex crimes was anything other than arguable. It did insist that the "States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole … or to jeopardize, in Chief Justice Earl Warren's words, the State's "right … to maintain a decent society."

Several puzzles remain after the Court's explanation is dissected. First, "arguable" connections to crime do not ordinarily suffice to justify restrictions of First Amendment liberties. A merely arguable connection to crime supports restriction only if the speech involved is for some other reason outside FirstAmendment protection. Second, as the Court was later to recognize in YOUNG V. AMERICAN MINI THEATRES, INC. (1976), the reference to quality of life, the tone of commerce in the central cities, and the environment have force with respect to all sexually oriented bookstores and theaters whether or not they display obscene films or sell obscene books. The Court in MILLER V. CALIFORNIA (1973) limited the definition of obscenity to that material which the "average person, applying contemporary community standards" would find that "taken as a whole appeals to the prurient interest" and "depicts and describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and which, "taken as a whole, lacks serious literary, artistic, political, or scientific value." No one has suggested that these restrictions on the definition bear any relationship to the tone of commerce in the cities.

Moreover, if the intrusive character of public display were the issue, mail order sales of obscene material should pass muster under the First Amendment; yet there is no indication that the Court is prepared to protect such traffic. As interpreted in the Paris Adult Theatre opinion, Stanley v. Georgia appears to protect only those obscene books and films created and enjoyed in the home; the right to use in the home amounts to no more than that. There is no right to receive obscene material—even in plain brown wrappers.

Perhaps least convincing is the Court's attempt to harmonize its Paris Adult Theatre holding with liberal thought. It claims to have no quarrel with the court's insistence in Stanley that the state is without power "to control the moral content of a person's thoughts." Because obscene material by the Court's definition lacks any serious literary, artistic, political, or scientific value, control of it is said to be "distinct from a control of reason and the intellect." But this is doubletalk. The power to decide what has serious artistic value is the power to make moral decisions. To decide that material addressing "reason" or the "intellect" is all that is important to human beings is ultimately to make a moral decision about human beings. Implicit in the latter idea, of course, is the belief that the enjoyment of erotic material for its own sake is unworthy of protection. But the view is much more general. The Court supposes that human beings have a rational side and an emotional side, that the emotional side needs to be subordinated and controlled, and that such suppression or control is vital to the moral life. That is why the Court believes that the contribution of obscenity to truth is outweighed by the state's interest in morality. The Court's insistence on the right to maintain a decent society is in fact an insistence on the state's interest in the control of the "moral content of a person's thoughts."

Finally, it is simply dazzling for the Court to suggest that the states are engaged in a "morally neutral" judgment when they decide that obscene material jeopardizes the right to maintain a decent society. When states decide that "a sensitive key relationship of human existence, central to family life, community welfare, and the development of human personality can be debased and distorted by commercial exploitation of sex," they operate as moral guardians, not as moral neutrals. Nonetheless, the Courts' bows to liberal theory in Paris Adult Theatre are revealing, and so are the guarded compromises of the obscenity test adopted in Miller v. California. The bows and compromises reflect, as do the opinions of the four dissenting Justices in Paris Adult Theatre, that America is profoundly divided on the relationship of law to morality and on the meaning of free speech. Since Paris Adult Theatre and Miller, and despite those decisions, the quantity of erotic material has continued to grow. At the same time, feminist opposition to pornography has ripened into a powerful political movement. The Supreme Court's decisions have neither stemmed the tide of commercial pornography nor resolved the divisions of American society on the issue. These political questions will continue to be judicial questions.