Prohibiting Pornography -- A Moral Imperative

Morality in Media ^ | 1984 | Paul J. McGeady

[Tailgunner Joe]

Obscenity is not encompassed within the phrases "freedom of speech" or "freedom of the press." There is no constitutional protection for obscenity, federal or state. Since this is so, Congress and the state legislative bodies may adopt laws to proscribe and punish those who manufacture, distribute, exhibit, or advertise obscene materials. Since no inroads are made by such legislation on protected speech, it is not necessary to look for a "clear and present danger"; nor even is it required to find a "compelling" or "substantial" federal or state interest to justify such laws. Unless the one challenging such laws can show that they are "irrational" under the due process clauses of the Fifth or Fourteenth Amendments, they will be upheld. Of course, passage of such laws is an exercise in police power, and under our concept of "ordered liberty," laws find their philosophical underpinnings in the protection of the health, safety, welfare or morals of the people. Under the principle of majority rule, therefore, laws with such underpinnings, those which are not irrational, may be passed by a simple majority of the legislature. To those who say "I don't like such laws" or "You are forcing me to comply with moral standards other than my own," we say, "You are living in a democratic republic where majority rule is the law. If you don't like it, short of revolution, your democratic response is to either change the Constitution or prevail upon the legislatures to repeal the obscenity laws -- but don't try to obsfucate the law by making false claims that such regulation is unconstitutional."

I. Protecting a Heritage of Laws for Decency: A Constitutional Imperative

The inherent danger to "public morality" (or "collective morality" -- a term used by Dallin H. Oaks, President of Brigham Young University) of obscene publications and the necessity to proscribe the same by legislation has been recognized from the time of Aristotle who said:

"The legislator ought to banish from the state, as he would any other evil, all unseemly talk. The indecent remark, lightly dropped, results in conduct of like kind. Especially, therefore, it must also forbid pictures or literature of the same kind."

Our common law tradition from England always considered obscenity a proscribable utterance. Sir William Blackstone, the compiler of that tradition, said:

"Every free man has an undoubted right to lay whatever sentiments he pleases before the public . . . but if he publishes what is illegal, he must take the consequence of his own temerity . . . [It is necessary] to punish . . . offensive writings . . . for the preservation of peace and good order."

Obscenity has always similarly been considered proscribable in the United States. Following Blackstone and the English common law, we have applied the punishment after the fact on the purveyor of obscenity.

In 1682 a bill was introduced and enacted as a General Law of the province of East New Jersey providing punishment for those who uttered "obscene words." This was followed by a similar law in West New Jersey in 1683. As early as 1712 the province of Massachusetts adopted a law against publishing "filthy or obscene" pamphlets.

In other states, in our early history, obscenity was looked upon as a common law crime. In 1808, Connecticut indicted an individual for the display of "an indecent picture or sign." In 1815 Pennsylvania courts upheld an indictment for exhibiting an obscene picture for money as a common law offense, the court stating that "neither is there any doubt that the publication of an obscene book is indictable." The presiding Judge Yeates noted:

"Where the offense charged is destructive of morality in general . . . it is punishable at common law. The destruction of morality renders the power of government invalid, for government is no more than public order. It weakens the bands by which society is kept together. The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures . . . must necessarily be attended with the most injurious consequences. We find that in 1770 in the case of King v. Wilkes, that the defendant was convicted for an obscene "Essay on Women."

In 1821, Massachusetts courts convicted one Holmes of the misdemeanor of publishing an obscene book. In 1824, Vermont passed an obscenity statute. In 1842, the Congress of the United States prohibited the importation of obscene materials. In 1865, the predecessor of the present federal mail statute was passed. In 1897, Congress adopted a criminal statute against interstate transportation of obscenity and in 1929 prohibited the broadcasting of obscenity.

Since no one seriously thought that the First Amendment protected objectionable material of this sort, there were no direct First Amendment challeges. It was not until 1957 that the issue was seriously presented to the United States Supreme Court in the Roth-Alberts case. In Roth, Justice Brennan speaking for the majority of the Court said:

"It is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. . . . At the time of the adoption of the First Amendment . . . obscenity . . . was outside the protection intended for speech and press. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection . . . is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all forty-eight states and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene. We hold that obscenity is not within the area of constitutionally protected speech or press."

II. Protecting "Collective Morality" by Preventing Pollution of the Mind: A State's Prerogative

The question of whether it is necessary to show that obscene materials induce criminal acts arises because of the legal theory produced in Schneck v. United States in which Mr. Justice Holmes stated:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater causing a panic . . . The question . . . is whether . . . the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent."

Holmes indicates thatt you cannot constitutionally inhibit "free speech" unless failure to do so is likely to create a clear and present danger of substantive evil. There are people who argue that you can't prove that obscenity produces such an evil; hence, you ought not to legislate against it. The complete answer to such an argument is that obscenity has been determined on many occasions not to be "free speech" (even though it is an utterance) and therefore there is no necessity to prove that antisocial effects will eminate from it.

Notes Justice Brennan in Roth-Alberts at 354 US 486:

"It is insisted that the Constitutional guarantees are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct or will probably induce its recipients to such conduct. But in the light of our holding that obscenity is not free speech . . . it is unnecessary for us or the state court to consider the issues behind the phrase 'clear and present danger'. . . "

Added Justice Harlan in a concurrance at 354 US 501:

"It seems to me clear that it is not irrational in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a state may deem obnoxious to the moral fabric of society. Even assuming that pornography cannot be deemed to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials. The state can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards."

In the 1973 Paris Adult Theater decision, the Supreme Court again gives us an additional constitutional-philosophical rationale for the existence of obscenity law when at 413 US 59 the Court states:

"We hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity . . . 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 Hill-Link Minority Report of the Presidential Commission on Obscenity and Pornography indicates that there is at least an arguable connection between obscene material and crime. . . . Quite apart from sex crimes there remains one problem of large proportions aptly described by Professor Bickel:

'It concerns the tone of society . . . the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently. There we should protect his privacy, but if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us and to impinge on other privacies. Even supposing that each of us can, if he wishes effectively to avert the eye and stop the ear (which in truth he cannot) what is commonly read and heard and seen and done intrudes on us all, want it or not.' "

In Paris Adult Theatre, Chief Justice Burger summed it all up when he said, "There is a right of the nation and of the states to maintain a decent society."

On the same day that Paris Adult Theatre was decided the Supreme Court also decided Kaplan v. California in which it stated:

"States need not wait until behavioral experts or educators can provide empirical data before enacting controls on obscene matter not protected by the Constitution."

Mr. Dallin H. Oaks, the author of a monograph entitled "The Popular Myth of Victimless Crime," took office as President of Brigham Young University in 1971. He had served as Law Clerk to Chief Justice Earl Warren, as a Professor of Law at the University of Chicago, and Executive Director of the American Bar Foundation, and as Assistant State's Attorney in Cook County, Illinois. In that monograph, Mr. Oaks made the following remarks regarding the positive impact of legislating to improve societal civility:

1. "The criminal law also exists for the protection of society at large. The 'standard-setting' function of law can also be overlooked by those who are occupied with whether a particular law can be effectively enforced. Enforcement is an important consideration, but not a dispositive one. Because of its 'teaching' and 'standards setting' role, the law may serve society's interest by authoritatively condemning what it cannot begin to control directly by criminal penalties. This standard-setting function of law is of ever-increasing importance to society in a time when the moral teachings and social controls of our nation's families, schools and churches seem to be progressively less effective.

2. "The repeal of laws also can have an educative effect. If certain activities are classified as crimes, this is understood that the conduct is immoral, bad, unwise, and unacceptable for society and the individual. Consequently, if an elective legislative body removes criminal penalties, many citizens will understand this repeal as an official judgment that the decriminalized behavior is not harmful the individual or to society. Indeed, some may even understand decriminalization as a mark of public approval of the conduct in question. . . . The law is an effective teacher for good or evil.

3. "It is inevitable that the law will codify and teach moral values not shared by some portion of the society -- usually a minority.

4. "Preservation of the public health, safety and morals is a traditional concern of legislation. This does not justify laws in furtherance of the special morality of a particular group, but it does justify legislation in support of standards of right and wrong of such sufficient general acceptance that they can qualify as 'Collective Morality.' "

III. Propounding Decency in The Future: Obscenity Laws Forevermore

<![if !supportEmptyParas]>The obscenity laws are here to stay no matter how much the ACLU rails against them or tries to force upon us their version of the Constitution. Laws that protect societal decency are being enforced with greater frequency although progress is not always visible. These laws are here because a consensus of the American people want them. This is reflected in all of the polls taken by Messrs. Gallup and Roper and the laws of all the states. The 1970 Report of the Presidential Commission on Obscenity and Pornography -- advocating the abolition of obscenity laws -- came from a stacked commission (the hand-picked Chairman and General Counsel were both active members of the ACLU) whose preconceived conclusions were vigorously rejected by the President and by the Senate via a vote of 60 to 5 (and rejected by the Supreme Court in Miller (1973) and its progeny). The Supreme Court in those decisions quoted wiht approval the Hill-Link Minority Report of that Presidential Commission. The Hill-Link Report condemned the majority report as biased, seriously flawed and lacking in credibility.

There is a right to maintain a decent society. The word "decent" is by nature a moral criterion and those who don't like morality as a justification for governmental action will have to accept the constitutional police power principle that "Consensus Morality" is now, ever was, and always will be a solid legal basis for obscenity legislation.

[Durus]

Child pornography is illegal because it can't be made with knowledgeable consent. That is hardly and artificial difference. That is why it was deemed "inappropriate".

[Antoninus]

Involving "Kiddie-porn" in this argument has long been a conveniant straw-man used by so-called conservatives like yourself (and Falwell/Robertson/FCC) to prop up an argument that you know is destructive to personal liberties in America.

It's not a straw man. It's simply a point that's devastating to your argument--so of course, it's convenient for you to create an artificial separation at the arbitrary age of 18.

The coercive aspect is only involved in the making of child porn. There is no coercive aspect involved in owning or viewing it. I, personally, am in favor of keeping it illegal to own or view. How about you? If so, you are limiting the freedom of many brave patriots to own and view child pornography. Does that make you the moral equivalent of the Taliban?

[Antoninus]

By advocating the banning any media content that was created without duress, fraud, or force then you are infringing on rights.

It's funny that it took us 180 years and the overturning of Supreme Court precedent to figure that out. Sorry, I disagree.

[Antoninus]

Child pornography is illegal because it can't be made with knowledgeable consent. That is hardly and artificial difference.

How does someone miraculously attain "knowledgeable consent" one second after midnight of their 18th birthday? And here I thought the pro-porn crowd didn't believe in miracles?

This is the very definition of "artificial difference."

[Siamese Princess]

You've got it backwards and you know it. It's easy - don't look at porn. There is nobody shoving porn in your face.

Have you actually watched any TV lately??

Every walk past a Victoria's Secret store in a mall or on the street? The giant photos in the window of attractive women in skimpy underwear would have been considered pornographic in the 1950s. It's everywhere.

[Durus]

Is your position that the age of legislation enhances it's constitutionality? What time test do you set? Is 180 years your litmus test? Is any legislation past that point suspect?

When was the first federal statute passed concerning obscenity?

[Durus]

First you argue that the government can, without fail, tell me and everyone else what is and is not good for us to read, view, and listen to and then you tell me that they can't even accuratly determine the age of majority?

18 was the number chosen for various logical and illogical reason. Unless you plan on proposing some sort of required test to determine majority I suggest that 18 is as good a age as any.

[radicalamericannationalist]

1. I submit the community is protecting its rights. This is a form of pollution.

2. The kids are still being with virtual kiddie porn. By making it difficult, if not impossible, for authorities to tell the real from the virtual, it makes the predators' job easier.

[radicalamericannationalist]

The concept of "consent" is itself a moral concept. The Libertarian Party platform calls for the abolition of age limits in sexual commerce.

[Durus]

Claiming that a point is devastating to my argument and having it actually be devastating are two very different things.

Again you say that it's an artificial separation when in fact it is a very real separation. Consent vs. non-consent.
Then you go on to argue the straw man...then you switch gears and ask why it's illegal to own or view it. By purchasing or obtaining this illegal material then you are in fact an accessory to the crime. It's the same reason why receiving stolen goods is illegal or driving a getaway car from a bank robbery. I don't advocate overturning these law as they protect the rights of the people.

[Durus]

I don't care what the libertarian party advocates. The "idea" of consent is based on reason not revealed knowledge.

[Durus]

1. Only individuals have rights.

2. "The kids are still being with virtual kiddie porn" I'm not being snide when I say that I don't know what you mean.

I'm am not aware that graphic technology exists to create a simulation so good that it defies an experts examination. When and if this technology exists then we can discuss it further...but I confess it would be a serious problem that our legal system is not prepared to deal with in any meaningful way.

[radicalamericannationalist]

1. I disagree. Capital punishment is a case in point. An aggrieved individual does not have the right to impose it. The community does. Similarly, the community has the right to uphold the moral standard it desires. This is part of the police power that has always belonged to local communities.

2. The technology exists. What they do is take a picture of a legal but young looking person. From there, they can play with the characteristics to make the image even more consistent with a child.

[A.J.Armitage]

The DBM is the Dave Matthews Band.

[radicalamericannationalist]

I get it now. My reference was to a story a couple weeks ago where they were dumping waste from their bus in a river or lake as they were driving by. But they nailed folks on a boat.

[Antoninus]

First you argue that the government can, without fail, tell me and everyone else what is and is not good for us to read, view, and listen to and then you tell me that they can't even accuratly determine the age of majority?

I didn't tell you that. I agree with age of consent laws and favor them. I consider them a last line of defense against the pro-license crowd--who incidentally have been working successfully to lower ages of consent in European countries.

It's usually the pro-porn libertarian types that have the biggest problems with age of consent laws, for the same reason that they problems with anti-porn laws generally. It's the government setting a moral standard which constrains individuals. I've had several libertarians tell me that they were more comfortable with the idea of parents or even the children themselves setting their own age of majority. That position is at least logically consistent for the "government shall make know law enforcing private morality" purists.

You claimed that "knowledgeable consent" is what somehow separated child porn from all the rest. My point was to demonstrate how utterly absurd the notion that an action which is considered God-awful and wrong on 11:59 PM on the night before a child's 18th birthday, is somehow perfectly acceptable one minute later. Such a position is not logically consistent, though it may be legally accepted.

My position is that the action is God-awful on both sides of midnight.

[Tunehead54]

Hey Tony.

I have a feeling that a years worth of posts outlining the freedoms we enjoy and seel to protect would not have a dent on your mindset but here's a question for you. Is this porn?

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I searched google for "beautiful face". Not necessarily my cup of tea but I wouldn't have her shot in a "soccer" stadium for displaying it. If you look at it logically you are only one step away from joining the Islamist nuts denying human beings the right to laugh, love, dance, fly kites, etc.

Our society rightly protects minors from all exploitation. Once you're an adult you make your own choices. Some good, some bad. We are (I am told) made in G-d's image. We have (I have read)a natural (dare I say - "G-d-Given instinct to procreate) - thus men appreciate the feminine form in all her beauty. Thank you Lord. You seem to want to repress all these desires and joys. Why is that? At the very least I would expect a thinking person to differentiate between erotic art and pornography. There is a lot more to be said but I suspect that you and a brick wall are not unlike.

[A.J.Armitage]

So why should I care about my survival?

Considering this is probably the least intelligent question I have ever seen posted on FR (and I've been here more than six years), I'll assume you aren't being serious.

There are plenty of people who don't care about their survival. Suicides. Suicide bombers. Suicide hijackers. People who kill their exes and then off themselves.

Tell me why I ought not be like that.

[Tunehead54]

seel = seek

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Another pretty face (per Google):

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[A.J.Armitage]

I didn't see that. What waste was it? Bong water?