The catalogue of Rutledge Hill Press, a small publishing house located in Nashville, Tennessee, is a modest but evocative eight-page booklet which serves as a useful reminder that the publishing business in America is a good deal more democratic than is often supposed. “Founded in 1982 to publish quality books of Southern interest,” reads the back page, “Rutledge Hill Press is quickly becoming one of the country’s leading regional presses.” Twenty-nine different titles are listed in the current catalogue, ranging from Georgia Trivia to Chosen Exile: The Life and Times of Septima Sexta Middleton Rutledge, American Cultural Pioneer. The house’s all-time top seller is a volume called The Original Tennessee Homecoming Cookbook.
This record, however, is about to be broken by Rutledge Hill’s latest offering, a chunky 571-page paperback bound in fire-engine red, stamped with a blue eagle, and bearing the nondescript title Final Report of the Attorney General’s Commission on Pornography.1 This book, the trade edition of the Meese Commission’s 1986 report on pornography, is now in its second edition, with sales of 65,000 at last count. Since the average nonfiction book sells anywhere from 2,000 to 18,000 copies, with the latter considered a very good sale, the performance of Final Report of the Attorney General’s Commission on Pornography is quite respectable.
The achievement of Rutledge Hill Press in distributing the report becomes even more impressive when one considers that most of these copies have been sold by mail, the chain bookstores having elected for all intents and purposes not to carry the Meese Commission report. (Walden-books ordered a total of 250 copies for its thousand-store chain.) The book is being sold in bulk to a number of fundamentalist religious groups. Cardinals Krol and O’Connor are distributing copies to all the priests and parochial-school principals in their respective archdioceses. The Evangelical Book Club has ordered a special hardbound edition for distribution to its members. Profits from package deals like this add up quickly, and any book which can sell so well without the assistance of the chain bookstores is clearly a gold mine for its publisher.
Rutledge Hill is unquestionably in possession of such a mine—by default. For the major publishers, it seems, were and are simply not interested in the report. This is not a question of exclusivity; the market has hardly been saturated. The Government Printing Office sold only 5,000 copies of the original two-volume version (the official report on the Challenger disaster sold 30,000), and government reports are not copyrighted. Anyone can publish his own edition of Final Report of the Attorney General’s Commission on Pornography for the cost of printing and distribution. No one but Rutledge Hill Press has done so to date. What is going on?
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Part of the answer lies in the remarkably bad press which the Meese Commission report received on the occasion of its initial release last July. Most news stories emphasized the fact that the report contained actual samples of pornography, including several highly explicit synopses of pornographic movies, among them Deep Throat and Debbie Does Dallas, and a 107-page list of over 5,000 pornographic books, movies, and magazines. Some people found the presence of this material in an official government report to be offensive, others merely absurd. But nearly everyone agreed that it was at the very least wildly inappropriate.
Reaction to the report itself was more predictable. The American Civil Liberties Union called it “a national crusade against dirty pictures.” NBC Nightly News carried a story consisting of exactly three sentences on the report proper, plus brief reactions from Edwin Meese and the chairman of the commission and longer comments from three critics, among them Christie Hefner of Playboy. Time brought out a sniggering cover story entitled “Sex Busters.” A dismissive New Republic editorial bore the scornful headline “Big Boobs.” Michael Kinsley, writing in the Wall Street Journal, called the report “wildly funny.” And the inevitable New York Times editorial blamed the commissioners for “relying on questionable evidence and recklessly encouraging censorship” and concluded that the report “outruns its own evidence . . . its cure of censorship is worse than the disease.”
The most detailed presentation of the case against the Meese Commission report on pornography, however, can be found in a paperback book, United States of America vs. Sex: How the Meese Commission Lied about Pornography.2 This book, written by two editors of the popular sex magazine Forum and published in a mass-market edition of 106,000 copies, attempts to expose “the right-wing tilt and the methodological madness” of the commission. One may derive some idea of the book’s overall tone from its opening paragraphs:
On the morning of April 29, 1986, in a government annex building in Washington, D.C., 11 carefully chosen advisers to the United States Justice Department debated the pros and cons of a lesbian-orgy movie.
“Does it make any difference if the camera is five feet away or three inches away from a lady’s vagina?” an ex-sheriff wondered.
“Can such a film depict truly loving, mutual, and consensual sex?” a jittery law professor asked.
The seven men and four women soon moved on to other pressing topics.
“I’ve got a couple of questions about bestiality,” said a former aide to Richard Nixon. . . .
After ten months on the job, the Attorney General’s Commission on Pornography—the F Troop of the Erogenous Zone—was still wandering in the briar patch of the bizarre during its climactic deliberations.
According to the authors of United States of America vs. Sex, an earlier government report, that of the 1970 Presidential Commission on Obscenity and Pornography, which recommended that the sale of pornography to consenting adults be legalized, had led to a backlash among right-wing ideologues, radical feminists, and religious fundamentalists. Ronald Reagan, acting at the behest of these groups and making use of the twin pretexts of child pornography and a growing body of research literature purporting to demonstrate the psychologically harmful effects of violent pornography, called for the Justice Department to charter a new commission whose specific brief, the authors claim, would be “to reverse history by overturning the not-guilty verdict of 1970.”
Rather than assembling a balanced panel of authorities from “the sex and civil-liberties establishments,” the Justice Department “talked, instead, to priests, child-abuse experts, evangelists, and criminologists” in order to assemble an “all-white, middle-aged, upper-class, and presumably heterosexual citizens’ council” chaired by one Henry E. Hudson, Commonwealth Attorney of Arlington County, Virginia, “a superstar among a tiny band of smut-busting commissars dotting the nation” and “an erotic illiterate” who had “never read Ulysses, Lolita, or Lady Chatterley’s Lover.” A group, in short, on which “Ed Meese could bet his badge” and which came through with flying colors:
Current obscenity laws permit suppression of material simply because it is offensive. The Meese Commission wanted to go further by showing that dirty pictures are demonstrably harmful, and it relied on anecdotes, not science, to make the case. . . . The Justice Department invited the commissioners to a hanging. An army of vice cops, zealous D.A.’s, worked-up clergymen, man-hating feminists, and anonymous “victims” brought the rope.
Thus, United States of America vs. Sex. As it turned out, however, even the Attorney General was a bit skittish at his commission’s findings. When presented with the report last July 9, he said that he had not yet had the time to read it and would offer his response in “two to four weeks.” A full three months later, Meese finally got around to endorsing the commission’s 92 recommendations, calling for pornography peddlers to be “pursued with a vengeance and prosecuted to the hilt.” These remarks received scanty press coverage, and no further comment on the report has been heard from the Justice Department since last October.
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All things considered, it is not hard to see why nobody much wanted to bring out a trade edition of the report. Still, Michael J. McManus, a syndicated religion columnist who covered the Meese Commission’s hearings, canvassed “every major publisher in New York.” No one was interested, although one house told McManus that if he could guarantee an advance sale of 100,000 copies, it would bring out a trade edition. McManus produced the commitments, but the publisher backed down. When the Boston Globe subsequently contacted seven major houses that had been approached by McManus and asked why they had decided against a trade edition, five of the seven declined to comment. A spokesman for Howard Kaminsky of Random House told the Globe that Kaminsky thought the report “was too large and had already found its audience” through sales of the official edition. And a spokesman for Bantam Books later succumbed to a fit of candor and told the New York Times: “We felt we would not be terribly comfortable promulgating that report, since many people here and in the industry have reservations about it.”
Lawrence M. Stone, president of Rutledge Hill Press, felt otherwise. “The report has been widely praised and condemned,” he says, “but very few people actually know what it says. We thought it deserved to be read and debated.” A good point, given the all-too-obvious fact that while the Final Report of the Attorney General’s Commission on Pornography has already been extensively debated, it has hardly been read at all. The only reporters other than Michael McManus who covered the hearings in any depth were sent by Playboy, Penthouse, and Forum. Everyone else shrugged off the commission and its work until the release of the report, which ran to 1,960 pages in the original. Most reporters and other observers, as we have seen, focused on trivial details in an attempt to avoid grappling with the unwieldy whole. Even United States of America vs. Sex, which was rushed into print two months after the release of the report, is based chiefly on Forum’s continuing coverage of the commission hearings rather than on a detailed look at the report itself.
The degree to which the Meese Commission’s report has gone unread is reminiscent of the way in which Justices William O. Douglas and Hugo L. Black used to handle the Warren Court’s regular screenings of stag films which had been submitted as evidence in obscenity cases. Having previously arrived at the conclusion that such films were constitutionally protected, regardless of their content, the Justices declined to attend. Similarly, anyone who feels that the issue of free speech was settled for all time when Congress ratified the First Amendment need not read a word of the Final Report of the Attorney General’s Commission on Pornography. For such a person, the case is already closed. Anyone with a less doctrinaire view, though, would do well to give careful consideration to the many interesting things the Meese Commission report has to say about the problem of obscenity—and the even more interesting things about which the report is silent.
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The natural starting point for the Meese Commission was the work of its predecessor, the 1970 President’s Commission on Obscenity and Pornography. To be sure, the commissioners claim that their efforts were not intended to be “reactive to the work of others sixteen years earlier.” The earlier pornography commission, they say, “provided much important information for us,” but since then “there have been numerous changes in the social, political, legal, cultural, and religious portrait of the United States, and many of these changes have undeniably involved both sexuality and the public portrayal of sexuality.”
The first of these changes was brought about by the Warren Court. The 1970 pornography report was written at the end of a lengthy series of decisions dealing with free speech and obscenity which began with Roth v. United States in 1957, the decision that inaugurated active Supreme Court scrutiny of obscenity, and ended with Memoirs v. Massachusetts in 1966, in which the Court ruled that pornography had to be “utterly without redeeming social value” in order to be subject to regulation under the obscenity laws.3 The effect of these decisions was to create a climate in which, in the words of the Meese Commission report, “obscenity regulation became essentially dormant, with a consequent proliferation of the open availability of quite explicit materials.”
Given the newly permissive attitude of the courts toward the regulation of obscenity, the report of the 1970 commission, which asserted that pornography was harmless, served to liberalize national attitudes not only toward “hard-core” pornography but also toward the presentation of explicit sexual material in movies, on television, and in magazines like Playboy. Such subsequent court decisions as Miller v. California, which reversed the “utterly-without-redeeming-social-value” test in favor of a more restrictive test based on “community standards,” had no significant effect on the availability of obscene material, the authorities having decided after Memoirs that it was simply not worth their while to try to prosecute pornographers.
As the climate of tolerance softened, technological changes, particularly the growing availability of cable television and videocassette recorders, made it more feasible to distribute pornography on a mass-market basis. The legal impediments to such distribution having been de facto neutralized by Memoirs v. Massachusetts,
in virtually every medium, from books to magazines to newspapers to music to radio to network television to cable television, matters relating to sex are [now] discussed, described, and depicted with a frankness and an explicitness of detail that has accelerated dramatically within a comparatively short period of time.
But what made these developments worthy of the scrutiny of a second panel of experts? The 1970 commission, after all, found no evidence that pornography “plays a significant role in the causation of delinquent or criminal behavior” and thus concluded that the government had no compelling interest in regulating its sale to consenting adults. Nor does the 1986 report specifically contradict these findings. Instead, it claims that “materials . . . available today are more sexually explicit and portray more violence than those available before 1970.” This claim is central to the Meese Commission’s argument that, the findings of the 1970 commission notwithstanding, pornography does do harm, not merely to its consumers but to women as a class.
The staff of the Meese Commission conducted an extensive review of the post-1970 social-science literature dealing with the effects of pornography consumption. With regard to “material featuring actual or unmistakably simulated or unmistakably threatened violence presented in sexually explicit fashion with a predominant focus on the sexually explicit violence”—that is, the kind of pornography for which “the scientific findings and ultimate conclusions of the 1970 commission are least reliable for today, precisely because material of this variety was largely absent from that commission’s inquiries”—the commissioners found that
when clinical and experimental research has focused particularly on sexually violent material, the conclusions have been virtually unanimous. In both clinical and experimental settings, exposure to sexually violent materials has indicated an increase in the likelihood of aggression . . . [and] a causal relationship between exposure to material of this type and aggressive behavior toward women.
The commission also found that “substantial exposure” to nonviolent pornography depicting “degradation, domination, subordination, and humiliation” is likely to
increase the extent to which those exposed will view rape or other forms of sexual violence as less serious than they otherwise would have, will view the victims of rape and other forms of sexual violence as significantly more responsible, and will view the offenders as significantly less responsible.
Although the commissioners were unable to agree on whether or not milder types of pornography caused harm, they felt that the harm caused by violent and degrading pornography was sufficient to justify the serious attention of law-enforcement officials and the public at large. The Supreme Court having consistently held that the First Amendment permits the regulation of obscenity by the state, and having enunciated in Miller a clear and coherent test of whether or not pornographic material is obscene, the Meese Commission rejected the recommendations for decriminalization advanced by the 1970 commission and offered instead 92 recommendations aimed at restricting the sale and distribution of obscene material.
Many of these recommendations seek to close various legal loopholes available to pornographers; others exhort federal, state, and local officials to start taking enforcement of the obscenity laws seriously. (“The Attorney General should direct the United States Attorneys to examine the obscenity problem in their respective districts, identify offenders, initiate investigations, and begin prosecuting them without delay.”) And the commissioners also called for one major departure from existing obscenity law. They recommended that legislatures “conduct hearings and consider legislation recognizing a civil remedy for harm attributable to pornography,” arguing that
pornography, when it leads to coerced viewing, contributes to an assault, is defamatory, or is actively trafficked in, constitutes a practice of discrimination on the basis of sex. Any legal protections which currently exist for such practices are inconsistent with contemporary notions of individual equality.
If this reasoning has a familiar ring, it is because the commissioners lifted it from the model anti-pornography ordinance drafted by the radical feminists Andrea Dworkin and Catherine MacKinnon, which asserts that “pornography lowers the social standards of treatment of women as a class,” declares certain types of pornography to be sexually discriminatory per se, and provides women with civil remedies against those who make, distribute, and sell such pornography. While the Dworkin-MacKinnon ordinance was struck down as unconstitutional two years ago, on the grounds that the specified definition of pornography was inadmissibly broad, the commission suggests that it could be redrafted so as to make it consistent with Miller.
This emphasis on Miller is characteristic of the Meese Commission’s recommendations, none of which attempts to “restrict materials not currently subject to restriction under Miller.” The commissioners did not, in other words, try to widen the present constitutional definition of pornography. They found that existing laws are for the most part already flexible enough to permit more than adequate leeway for officials to suppress obscene material. (“At present,” one witness testified, “the city of Cincinnati has no adult bookstores, no X-rated movies, no massage parlors, no adult movies on cable television, and no go-go dancers.” That such a thing should be possible in 1987 is likely to strike a resident of New York as nothing short of miraculous.) Improved enforcement rather than new obscenity legislation, then, is the gravamen of the Meese Commission.
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Improved enforcement—but not censorship. “One of the myths perpetuated by those who have not read the report,” Henry Hudson says, “is that the report is promotive of censorship. A reading of it would indicate the contrary.” Indeed, to read the report in its entirety is to be struck by the degree to which it diverges from the portrait drawn by its critics. The frenzied puritanism so vividly described by the authors of United States of America vs. Sex is simply not present in the cool, bland rhetoric of the Meese Commission’s report.
If censorship is defined as the prior restraint of publication of obscene materials, then the Meese Commission is plainly not advocating censorship. Nevertheless, this is precisely what its critics accuse it of doing, and not merely the elite media and the editors of magazines like Playboy and Forum but also (in the words of United States of America vs. Sex) “several of America’s most accomplished writers.” These writers communicated with the Meese Commission at the urging of a group called the National Coalition Against Censorship. John Updike’s letter is typical:
Since around 1960 . . . American writers have been free to attempt sexual realism—to describe sexual events and transactions between people in as much detail as seems appropriate, in the language that people actually use. Please do not take this freedom from us, or from artists of any kind, or from those therapists and scientists who wish to address in printed form the subject of sexuality. . . . I deplore any abridgment of our First Amendment rights as presently interpreted.
Updike’s last sentence is, of course, the heart of the matter. The First Amendment, which provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” is the wolfbane which opponents of censorship invariably thrust in the face of anyone who dares to suggest that the state has the right to regulate the sale and distribution of pornography. Indeed, the First Amendment is plastered like a secular talisman on the back cover of United States of America vs. Sex, whose authors almost certainly do not realize that the arguments of the Meese Commission actually have more in common with their own position on obscenity law than with the views of, among others, the Framers of the American Constitution.
That the state is constitutionally competent to censor obscene material was taken for granted throughout most of this country’s history. “One looks in vain,” as Walter Berns has noted, “for a discussion of the problem of vulgar speech or of obscenity in the records of the Constitutional Convention of 1787 or in The Federalist Papers or in the debates in the First Congress on the First Amendment.” The question of whether or not the First Amendment applies to pornography, in fact, did not even reach the Supreme Court until 1957 and the case of Roth v. United States.
The real significance of Roth is not to be found in its long-superseded “prurient interest” definition of obscenity. It lies in the fact that a previously unquestioned assumption—that obscene material is not protected by the First Amendment—was now felt to require argument before the highest court in the land. Which is why the truly influential opinion in Roth was not the majority opinion of Justice Brennan but the dissent of Justice Douglas. “The First Amendment,” Douglas wrote, “its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.” With this dissent, Douglas introduced into the field of obscenity law the doctrine which has come to be known as “First Amendment absolutism,” the notion that the First Amendment is to be read literally, divorced from any consideration of the intent of its Framers, as estopping the federal government from passing any law abridging freedom of speech or of the press.
Douglas’s reading of the First Amendment was absurd on its face, as dozens of scholars of constitutional law have demonstrated over and over again since 1957. The Framers of the First Amendment never intended that it be interpreted “absolutely.” Moreover, the doctrine of First Amendment absolutism has never commanded a majority on the Supreme Court, which has consistently held, even in Memoirs, that obscene material can legitimately be suppressed by the state. But one well-worded dissent can be more influential than a dozen pedestrian majority opinions. And Justice Douglas’s dissent was not only well-worded but well-timed. For the doctrine of First Amendment absolutism meshed perfectly with increasingly forceful attacks from the American political Center against the regulation of obscene material, and it gave the Center a constitutional hook on which to hang its opposition to obscenity law.
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The consequences of this twin assault on the fundamental premises of obscenity law were baleful. The Supreme Court, whatever its claims to the contrary, has always been responsive to social and political pressure. Given the growing pressure to liberalize obscenity law, it hardly came as a surprise when the Warren Court gradually began to narrow the constitutional grounds on which the state could act against pornography. Constitutional law, after all, is “positive” in much the same way that markets are “efficient.” Once the basic legal and cultural assumptions which restrain the courts from considering the constitutionality of a given issue are seen as vulnerable to attack, the forces of judicial reductionism and caprice are unleashed and all bets are off. In a very real sense, Justice Douglas’s dissent in Roth made possible the Court’s later decision in Memoirs v. Massachusetts.
What is most disturbing about Memoirs is the relative absence of any serious public challenge to the wisdom of the Court’s findings on obscenity law.4 The American public, after all, was by no means convinced of the wisdom of completely deregulating obscene material. But the Supreme Court had already endorsed the general premise that at least some pornography was deserving of First Amendment protection, and the American political Center, desiring to make it possible for readers to buy Ulysses, Lolita, and Lady Chatterley’s Lover over the counter and for novelists like John Updike to publish “realistic” portrayals of sexual behavior, had gladly accepted the far more extreme arguments of Douglas and Black.
Memoirs did not make the problem of obscenity go away. Most people continued to believe that the open distribution of obscene materials was in some indefinable sense socially undesirable. But when the Supreme Court extended the protection of the First Amendment to certain types of pornography, the ability of the state to justify any obscenity laws was irreversibly compromised. And when the 1970 commission announced that pornography was harmless, the Center was left with no grounds whatsoever for controlling the flood of obscenity which subsequently inundated American society.
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The Warren Court “proved” that there was no such thing as obscenity. The 1970 pornography commission “proved” that pornography was not harmful. But while the public largely took both conclusions at face value, it was still not satisfied. Anti-pornography sentiment continued to run high. Thus it was inevitable, given the collapse of the obscenity laws, that a new attack would be mounted on pornography, couched in terms of the only line of argument left standing by the First Amendment absolutists: that the social-science evidence gathered by the 1970 commission was defective and that pornography was harmful after all. This is the line taken by the Meese Commission.
The use of social-science evidence in a legal context is itself yet another pernicious legacy of the Warren Court. In footnote 11 of Brown v. Board of Education, the decision which most completely embodies the modern triumph of judicial activism over judicial restraint, the Supreme Court offered social-science evidence in support of its case against segregated schools. Lower courts have been hastening ever since to buttress their distortions of original intent with “scientific” evidence. It was only natural that this approach would eventually be adapted to the needs of the foes of pornography.
The use of social-science evidence in the fight against pornography did not originate with the Meese Commission but with radical feminists; it can be dated roughly to the publication in 1980 of the book Take Back the Night: Women on Pornography. Some conservatives, to be sure, had shied away from the feminist critique of pornography, recognizing that to make common cause with feminism in the name of a supposed common good was to venture onto extremely dangerous ideological ground. But others did not hesitate to ally with the radical feminists, who were, after all, the only group in possession of a coherent vocabulary of opposition to pornography. (Liberals and moderates, although by now convinced of the disastrous effects of the liberalization of obscenity law, had long since been silenced by their ill-considered acceptance of First Amendment absolutism.) The Meese Commission, as we have seen, was among the latter group; it made a point of siding with the radical feminists, claiming that pornography both degraded women and encouraged sexual violence in men, and extensively citing social-science evidence to prove its contention.
The problems with this line of attack are manifold. To begin with, it is based on the obnoxious ideology of radical feminism. (“Anything that puts me in bed with Andrea Dworkin,” as one libertarian says, “has got to be wrong.”) Moreover, the legal remedies it implies are transparently unconstitutional, based as they are on the premise that pornography harms women as a class rather than on the constitutionally firmer foundation of discrete and tangible harm to individual litigants. It is highly unlikely that a Supreme Court which earlier this year rejected a constitutional challenge to the death penalty based on a statistical study purporting to show racial bias in Georgia executions would seriously entertain, say, an attempt to widen the scope of Miller based solely on social-science evidence bearing on the supposed harm caused by pornography.
At any rate, those familiar with the standards of “proof” that currently prevail in the social sciences must cringe at the thought that the Supreme Court might seriously weigh the findings of social scientists in arriving at judgments on any subject whatsoever. The social sciences are notoriously soft, and their practitioners are in many cases just as notoriously willing to allow their methodology and interpretations to be shaped by the compelling interests of ideology. In order to recognize this fact, one need only consider the way in which the scholarly debate over bias in mental testing has been perverted by advocates of affirmative action and racial-hiring quotas.
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What we have, then, in the Meese Commission report is a document whose authors are unwilling to risk criticism by appearing to advocate censorship. This is a report which seemingly can find no better reason to condemn pornography than the shaky evidence of social-science research. Most importantly, it is a report undertaken at the express request of an administration which has consistently honored social issues more in the breach than in the observance. Surely nothing could be more characteristic of Ronald Reagan’s handling of controversial issues than for him to choose to address the question of pornography by instructing the Attorney General to appoint a commission to study the problem instead of going directly to the public and explaining why obscenity ought to be banned.
All of which suggests that the critics of the Meese Commission report have in some basic sense missed the point. To charge, for example, that Attorney General Meese “stacked” the commission in order to produce a desired conclusion is absurd. It seems equally likely that the Meese Commission was stacked so as to produce a report that could be filed and forgotten. How else to explain the remarkable diffidence of its condemnation of pornography? As Whittaker Chambers said of Russell Kirk’s The Conservative Mind: “If you were a marine in a landing boat, would you wade up the seabeach at Tarawa for that conservative position?”
A pornography commission “stacked” so as to produce a genuinely conservative result, in any event, would have been composed of other sorts of people than psychologists and social workers and obscure jurists. Such a commission would not have allowed the judicial Left to set its agenda. It would not have relied on social-science evidence to make the case against obscenity. It would not have rooted its arguments against pornography in the shifting, positivistic grounds of current theories of constitutional interpretation. And it would never have gone to such elaborate pains to avoid using the word “censorship.”
Such a commission, by contrast, would have boldly asserted the obligation of the state to censor obscene material. (“If you care for the quality of life in our American democracy,” Irving Kristol has written, “then you have to be for censorship.”) And it would have argued that any interpretation of the Constitution which spreads the mantle of the First Amendment over books like Anal Agony and Hot Cock Nazi Masters (to cite but two titles from the Meese Commission’s long list) not only is historically specious but necessarily weakens the foundations of the good society which the Framers intended to secure. The pornography report such a commission would have submitted to the Attorney General of the United States might well have led to a major rethinking of American cultural attitudes toward obscenity. But that is the pornography report which does not exist.
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Meanwhile, the pornography report which does exist continues to make its circuitous way into the living rooms of thousands of troubled families, most of them fundamentalists, evangelical Christians, or conservative Catholics. These readers are not interested in the Meese Commission’s careful chronicling of the evolution of obscenity law, hair-splitting qualifications, and endless footnotes. Many of them are frankly revolted by the contents of the report. (Most Christian bookstores will not stock the report because of the explicit material it contains.) But they are reading it all the same, because they are deeply concerned about the spread of pornography, and they are growing angrier by the minute.
The Meese Commission’s scruples about recommending censorship are meaningless to these readers. Censorship, after all, is precisely what they want—and not the “liberal,” nonrepressive censorship of an Irving Kristol, either. They want to see censorship boards exercising prior restraint over the release of movies and the publication of books. Were these readers of the Meese Commission report to have their way, the United States would quickly be returned to a long-forgotten time when it was not possible to buy books like Ulysses, Lolita, and Lady Chatterley’s Lover over the counter.
Anyone who doubts that such a thing could come to pass in our enlightened age should consider the following cautionary tale. The Federal Communications Commission (FCC) has said that it intends to crack down on “obscene” and “indecent” broadcast speech. WBAI-FM, a New York radio station of a decidedly left-wing bent, sent the FCC a letter announcing its intent to broadcast a lengthy series of words and phrases, the mildest of which was “kissing my bottom.” The station invited the FCC’s reaction, which was immediately forthcoming and unhesitatingly negative. Lawyers for WBAI-FM thereupon revealed, no doubt with poorly suppressed glee, that the “obscene” and “indecent” words and phrases in question were all drawn from Molly Bloom’s soliloquy in Ulysses, which the station was planning to air, as it always does, on June 16, known to all Joyce scholars as Bloomsday. One commissioner retorted that even if those words and phrases had come from Ulysses, they were still “stuff you deck someone over. I’m amazed it made it as a classic.”
This kind of talk is alarming. But in the absence of a more sophisticated opposition to the First Amendment absolutism that now dominates legal discussion of the obscenity problem, what real choice is there but to accept the arguments of the extremists, whether of Left or Right? “Democracy,” Walter Berns says, “can live without Mrs. Warren’s Profession, if it must, as well as without Fanny Hill.” If it is necessary to trade Ulysses, Lolita, and Lady Chatterley’s Lover for a world free of Times Squares and child pornography, what principled person would hestitate to choose the latter?
Needless to say, the choice is an invidious one. Reasonable alternatives are possible, even in the difficult area of constitutional interpretation. The unyielding opposition of the American public to the Miranda decision, for example, finally led the Supreme Court to undertake a revaluation of the Warren Court’s positions on questions of criminal law, a revaluation which brought about, to consider only the most immediate example, the recent Supreme Court ruling affirming the constitutionality of preventive detention. The existing situation with respect to pornography is by no means irreversible.
But it is foolish to underestimate the possibility that extremism may prevail in the absence of reasonable alternatives. The United States, lest we forget, once ratified a constitutional amendment banning the sale of alcohol. It might conceivably some day choose to ratify a constitutional amendment banning the sale of literature portraying sexual activity. If Americans want to preserve their right to buy the novels of John Updike at the local Waldenbooks outlet, they must first accept the civic obligation of finding a morally responsible via media between First Amendment absolutism and prior restraint.
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1 With an introduction by Michael J. McManus, 571 pp., $9.95 (paper).
2 By Philip Nobile and Eric Nadler, Minotaur, 370 pp., $3.95 (paper).
3 The Meese Commission report distinguishes between pornographic material, which is “predominantly sexually explicit and intended primarily for the purpose of sexual arousal,” and obscene material, which is pornography that “has been or would likely be found to be obscene in the context of a judicial proceeding employing applicable legal and constitutional standards.”
4 The American Right, of course, was outraged by the Warren Court's obscenity decisions from the very beginning. But this outrage never resulted in a sustained public campaign aimed at the specific question of obscenity law—the kind of campaign that has lately been directed, for instance, at Roe v. Wade. In any event, conservatives have become increasingly divided in recent years over the question of pornography. The influential libertarian wing of the conservative movement, for example, does not believe in the regulation of pornography at all.
