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.

[Mockingbird For Short]

Yep, my first porn started landing in my inbox right after I joined a Yahoo! group several years ago. I think Yahoo! must've given its members' email addys at that time to a third party.

[asgardshill]

Prison sentences and fines can eventually put the pornographers out of business.

Hey, if it worked for drug dealers ...

[danteinferno]

Hmm, this is actually a big issue for some. I agree, porn is addictive, destructive, and dangerous, however it should be someone's choice. Listen, its not hurting someone, like abortion. Its not soliciting women in the worst sense, like prostitution. Porn is BAD, and I strongly urge anyone addicted do it to stop, before you become a slave to it, however "The best kind of government is the government that governs the least." Lets not waste our time and money on an issue that is so trivial compared to other pressing matters.

God Bless
Andrew

[tacticalogic]

The liberal interpretation of "commerce among the several states" originated with FDR, and is often referred to as the "New Deal Commerce Clause". It represents a radical departure from the original intent of the Commerce Clause, and amounts to an usurpation of state powers based on nothing more than sophistry and creative semantics.

If you're doing research, look at the case of Wickard v. Filburn for what is considered the landmark case, and look at the Court Packing Bill for some background on how it came to pass. You might also want to read some of the opinions of Clarence Thomas on the subject, as sell as the writings of the founders with regard to the commerce clause, and commerce "among the several states". I can provide links if you wish.

As far as the question of the similarity an resultant jurisdiction and authority, AFAIK there are no federal laws against indecent exposure, it is considered a matter of state jurisdiction.

[CSM]

"Anyone who thinks the Christian Right is anything like the Taliban displays a great ignorance of the severity of the terrorist threat we face."

I can think of many instances throughout history that the actions of the Christians were very smilar to the actions of today's Islamofascists. To deny history is to be doomed to repeat it.

I have a propposal for you Joe, how about we eliminate all tax shelters for all religeons and then make them compete for their governmental connections like any other element of society......Would you accept that?

[robertpaulsen]

"The liberal interpretation of "commerce among the several states" originated with FDR, and is often referred to as the "New Deal Commerce Clause"."

Oh baloney. You're just repeating what you've heard. Do some research for yourself, for once.

Congress was regulating commerce within the states as early as 1914, 20 years before FDR. I can provide you with a link to the Shreveport Rate Cases if you wish.

[tacticalogic]

Congress was regulating commerce within the states as early as 1914, 20 years before FDR. I can provide you with a link to the Shreveport Rate Cases if you wish.

We've been there and done that, RP. The Shreveport case was about Congress preventing what amounted to an unfair tariff on interstated commerce by manipulating the rail rates. They were regulating the railroads as "instruments of interstate commerce", not the commerce itself. Your assertion that Wickard doesn't cover any ground that Shreveport didn't doesn't hold up.

[tacticalogic]

Oh baloney. You're just repeating what you've heard. Do some research for yourself, for once.

Every time I start doing my own research, and find out what the founders had to say about the Commerce Clause, and "commerce among the several states", I find more and more evidence that you're wrong. Are you sure you want me doing any more?

[robertpaulsen]

"not the commerce itself."

What???

Paying money to ship goods is commerce. What do you think it is, barter?

Congress constitutionally regulated that intrastate commerce because it had a substantial effect on interstate commerce. 20 years before FDR.

[tacticalogic]

Paying money to ship goods is commerce. What do you think it is, barter?

It wasn't a matter of paying the rates or shipping the goods, but of the basis for the rate structure. They could have been in compliance by adjusting their interstate rates, and leaving the intrastate rates alone. The only reason they couldn't is that they were using higher interstate rates to subsidize their intrastate operations, and their status as an "instrument of interstate commerce" is what made this a valid exercise in regulation of interstate commerce.

[Paloma_55]

1) "Libertarian" is not a synonym for unbeliever

OK.. that was a very subtle attempt at humor.. While not all libertarians are unbelievers, I find quite a few are. I think it has to do with many libertarians' rejection of an authority above their own. Many libertarians believe that what they do is their own business and nobody else's. I agree with this basic point, but also believe that God has a say in what I do, and my neighbor has a say when my actions negatively impact his (or society's) ability to peacefully coexist.

You also seem to suppose that proving pornography is immoral means it should be prohibited. But this presupposes a great deal, that should be argued for rather than assumed, about the proper function of the government.

My argument shall be extended from "It is immoral because God says it is " to "It is immoral because it infringes upon the well being of society" and that is where government should step in.

Like I said earlier, what someone chooses to read, draw, photograph in their own bedroom, etc... Is none of my/our business. When they offer it for sale, they are now impacting others in our society and I believe government has just as much right/responsibility to limit that behavior as it does to stop you from pouring motor oil in a creek.

Pornography is pollution to the mind. If someone wants to pour motor oil in their drinking water, fine.. but not in everyone else's.

And while some people like the taste of motor oil in their drinking water, society as a whole has a responsibility to prevent general distribution of such into the supply. Let them taint their own supply.. boy that analogy is getting stinky.. but it is valid.

[tpaine]

States & communities are VERY capable of 'defending themselves from filth'. Ever seen any porn shops in Utah?
193 tpaine

The State is ringed by porn shops just across every adjoining state line. There are none in the State.
199

_____________________________________

Dinsdale wrote:
Sorry you are flat wrong about 'porn' in Utah.

______________________________________


Sorry, you are flat wrong.

Nothing in your post refutes what I wrote about 'porn' in Utah.

[Durus]

Punishment in general is the duty...I thought I was clear. "Society" doesn't and can't determine how the punishment is carried out. The government decides how it is carried out and yes by banning capital punishment I think that they are absolving themselves of their duty.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The constitution recognizes that there is federal government, state government, and individuals. That's it.

Banning porn doesn't protect the rights of those that don't wish to be exposed to it. You don't have to see porn unless you want to see porn. (with some very rare exception that wouldn't stop even if porn were banned) It's not exactly like chemicals in a public waterway you see. If chemicals were dumped in a public waterway the effected citizens could start a class action lawsuit, or the municipality could start legal action but at no time could the "community" sue to stop such a thing because legally there is no such thing as "community". Funny how that works isn't it? Further if chemical dumping happened on private land (owned by the dumper) only federal law (federal law that didn't exist until the 1980's) would cover it in terms of prosecution. If the dumper dumped chemicals on an individual's land then only that individual would have standing for legal proceedings.

[tpaine]

Like I said earlier, what someone chooses to read, draw, photograph in their own bedroom, etc... Is none of my/our business. When they offer it for sale, they are now impacting others in our society and I believe government has just as much right/responsibility to limit that behavior as it does to stop you from pouring motor oil in a creek.

571 Paloma_55


______________________________________



States & communities are VERY capable of 'defending themselves from filth'. Ever seen any porn shops in Utah?
193 tpaine

[radicalamericannationalist]

1. Your legal analysis ignores organizational standing. Community groups can sue.

2. Read Robert George's work on the effects of porn on community. He is far more eloquent than I.

[Paloma_55]

So if your point is that local governments can deal with pornography on the local level, I agree with you.

When interstate distribution takes place, that is a federal issue.

I am not a "big brother" fan. I believe that there are issues that exceed local authority, and others that are explicitly within the scope of local authorities.

We, as citizens should always work to ensure our representatives are doing what they should, and not exceed their authority.

[Durus]

Individuals in groups can sue but a nebulous group only known as "community" can't sue. Once people realize that any community is only a group of individuals and can posses no rights as it isn't anything but a collection of individuals we will be all set.

I won't argue that porn harms people. That was never my intent. My only point(s) are that communities, as a descriptive term of grouped individuals, processes no rights of it's "own" as it isn't an entity.

People can legally harm themselves all day long as long as they don't harm another doing it. They can do it with porn, booze, cigarettes, bacon, fried food, and well almost anything can be harmful in excess. It is one individual harming another that our government was designed to protect.

[A.J.Armitage]

OK.. that was a very subtle attempt at humor..

The key word there is "attempt".

While not all libertarians are unbelievers, I find quite a few are.

Quite a few conservatives are unbelievers.

I think it has to do with many libertarians' rejection of an authority above their own.

You seem to be saying the unbelief of some libertarians derives from their political views. But this is backward. They're atheists first, then reject authority over them, then become political libertarians. (Even if they do start with the political view and work back, the atheism is logically prior.) Christian libertarians start by accepting God's authority, and then wishing to see all lesser, temporary authorities submit to (and thus not try to take the place of) the great Sovereign of the universe.

My argument shall be extended from "It is immoral because God says it is " to "It is immoral because it infringes upon the well being of society" and that is where government should step in.

Two issues. First, why is it immoral to infringe on the well-being of society? Either you resort back to "God says so", or else it's baseless.

Second, who gets to define the well being of society, and who gets to decide when it's been infringed? The courts? The President? The majority? But the courts still uphold Roe, the President was Bill Clinton for eight years, and the majority of the people, I fear, are unregenerate. So who, and how do you know you can trust them not to decide that the Bible, being homophobic and sexist, infringes on the good of society?

[Melas]

Never join a yahoo group unless the membership is hidden from the public. You can view that setting before you actually join the group.

[robertpaulsen]

"and their status as an "instrument of interstate commerce" is what made this a valid exercise in regulation of interstate commerce."

The court was making the point that Congress has the power not only to regulate commerce, but also the instumentalities of commerce. The court stated:

"It is for Congress to supply the needed correction where the relation between intrastate and interstate rates presents the evil to be corrected, and this it may do completely, by reason of its control over the interstate carrier in all matters having such a close and substantial relation to interstate commerce that it is necessary or appropriate to exercise the control for the effective government of that commerce."

Congress may reach into the states to regulate an intrastate activity if that activity has a close and substantial relation to the regulated interstate commerce.

Again, 20 years before FDR.