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PORNOGRAPHY AND THE LAW

By E rnest van den Haag The Meese Commission report on pojnogr@phy was released las ear and is now old hat. Perhaps this is a good time to examine with some detachment 'de question on which it sought to shed light: Should we continue to outlaw pomograFhy.while , in effect, tolerating it? Should we legalize it? Or should we find a method of out Ming it effectively? For those who wish to legalize pornogra hy the answer, is simple. Whether or not pornography is distasteful or morally ha=, it affects 'only those who buy it. The government is not in charge of their morals. It is part of one's freedom to make choices that are harmful to oneself or disapproved by others. Those offended by pornography can readily refrain. There is no need for the law to protect them; no o ne compels them to see X-rated movies or buy pornographic magazines. Legitimate questions about advertising, public visibility, and access by phildren are marginal and could be solved by such measures as plain wrappers and inconspicuous signs. Ridicule by "Civil Libertarians.' Surely the people who want to legalize pornography are right if, as they contend, pornography does no harm to those who do not volunteer to buy it. Ibis is the question the Meese Commission addressed. The Commission has been ridicule d by all the usual "civil libertarians." However, if one actually looks at its report, one finds that the Commission did quite reasonable work in trying to answer the question it focused on: Does pornography lead to crime? If it does, obviously it harms pe r sons who did not volunteer for the harm. They are entitled to protectionprovided that protection is consistent with constitutional principles. The Commission decided that pornography, particularly sado-masochistic pornography, stimulates, to say the least , sex crimes. One can argue- about this. There is a chicken and Fgg problem. Does the pros pective rapist consume ornography because he independently is a prospective rapist, or is it the p@mography whic9 causes, or stimulates, a disposition to rape that d i d not pre-exist or was minor! Which comes first? However, there seems to be little doubt that a disposition to commit sex crimes may be strengthened or activated by pornography, which appears to legitimize them and to weaken internal restraints. Changing S exual Mores. The general evidence strongly suggests that crime can be stimulated by communications, ideas and sensations aroused by movies or books. Few sayings are as silly as the dictum attributed to Jimmy Walker (the late New York mayor) to the effect t hat "No girl has ever been seduced by a book." Books do not seduce directly any more than whiskey does. But they help. After all, even if one discounts the "sexual revolution," one cannot deny that sexual mores have changed over time, owing not to changes in biology, but to changed ideas and sentiments that infect people and lead them

Ernest van den Haag is a Distinguished Scholar at The Heritage Foundation and John M. Olin Professor of Jurisprudence and Public Policy at Fordham University.

He spoke at The Heritage Foundation on January 15, 1987.

ISSN 0272-1155. Copyright 1987 by The Heritage Foundation.

to action. Books such as the Bible or D iml influence people's actions because of the ideas they expound. Pornography, which is bereft of ideas, infl uences people because of the sensations and attitudes it stimulates. It is consumed for the sake of these sensations as drugs are and may influence actions analogously. But pornograph is not the only thing that may lead to sex crime, and certainly it does so only sometimes. ]Vany people consume it without being led to crime. Others become criminals without pornogr@phy. Further, alcohol too may lead to crime, or TV violence-indeed myriad things. We cannot outlaw everything, not even every communication, tha t sometimes leads to crime. Why then outlaw pornography*! Exploits Sex. If the Meese Commission conclusion-let's prohibit pornography because it may lead to crime-does not quite follow from its evidence, the idea of some feminists, that pornography is a ma l e conspiracy ag in t females to exploit them, and foster, or help, violence against them, is even less well founded. Pomography exploits sex, not females. The criminal effects are not intended, let alone conspired for. Women are accidental. Pornographers w ould be just as willing to present pictures of males as of females if there were a market for them. There isn't, except for male homosexuals, who indeed are catered to by pornographers. Most females--be it for cu tural, psycholo cal, or biological reasons - do not seem to want to consume po aphy. Actua males, who spend good money for the stuff, are more, not less, exploite than the fema s who earn it. At any rate, I can!t see exploitation (a cloudy concept to be n with, meaning not much more than "I don't li k e it"), since both buyers and sellers volu eer and both have alternatives. They do what they want to Po; they are not compelled to do it. Exploitation without compulsion is hard to figure out. O.K, forget about the feminists. Why should we punish the sale of pornogr@PhY9 (Nobody @dvocates prior restraint, censorship, which is a pseudo-issue.) The Meese Commission reason, that it may lead to crime, is not sufficient. Are there other reasons? I believe there are. The social damage porno&raphy does is greater , yet more diffuse than indicated by individual crimes. Just as chemical pollution may erode stones, statues, and buildings, so pornography erodes civility and our social institutions. Avoiding Art and Humanity. By definition, pornograph demidividualizes a n d dehumanizes sexual acts. By elindinating the contexts it reyulces males and females simply to bearers of impersonal sensations of pleasure and pain. This dehumanization eliminates the empathy that restrains us ultimately from sadism and non-consensual a c ts. The cliche-language and the stereotyped situations of characters not characterized, except sexually, are defining characteristics of pornography. The pornographer avoids distraction Erom the masturbatory fantasy by avoiding art and humanity. Art may " c ancel lust" (as Santayana thought) or sublimate it. The pornographer desublimates it. Those who resort to pornographic fantasies habitually are people who are ungratified by others (for endogenous or external reasons). They seek gratification in using oth ers, in inflicting pain (sometimes in suffering it), at least in their fantasy. In this respect, The Stoa of 0 which, itself pornographic, also depicts the rather self-defeating outcome of -pornographic fantasy, is paradigmatic.

1. Depiction of females merely as sexual objects, expressions of hostility or contempt for them, and depictions of sadistic humiliation, are sometimes called "exploitation." If not exploitative, pornography of this sort is certainly antisocial. One may fa vor prohibition for this reason as much as for the sake of women. -2- 1 1 . mo IFYV itecFt Ie gi nt

In a sense, pornographic and finally sadistic literature is anti-human. Were it directed against a specific human group--e.g. Jews or Blacks--the same lib eral ideologues who now oppose ou awing, pornography might advocate prohibiting it. Should we find @ little black or J *sh *rl tortured to death and her death agony taped by her murderers, and should d e murderers imbued with sadistic anti-Semitic or anti - black literature, most liberals would advocate that the circulation of such literature be prohibited. Why should humanity as such be less protected than any of the specific groups that compose it? That the sexualized hate articulated is directed against p eople in general, rather than against only Jews or Negroes, makes it no less dangerous; on the contrary: it makes it as dangerous to more people.

Without Artistic Value. But shouldn't an adult be able to control himself and read or see, without enactipg, w hat he knows to be wrong or, at least, illegal? Perh s he should. But we are not dealing. with a homogeneous group called grown-ups nor ils i possible in the modem American environment to limit anything to adults. Children and adolescents are not supervis e d enou&h. Further, the authority of their supervisors has been diminished too much to make effective supervision possible. As for grown-ups, many are far from the self-restrained healthy type envisaged by democratic theory. They may easily be given a last , or first, push by the materials I would like to see prohibited. Now, if these materials had artistic, indeed any but pornoyraphic value, we would have to weigh the loss against the importance of avoiding their deleterious influence. We may even be ready t o sacrifice some probable victims for the sake of this value. But pornographic "literature" is without literary value. It is printed, but it is not literature. Else it cannot be defined as pornography. Hence there is nothing to be lost by restricting it, and much to be gained.

Affects the Quality of Life. Self-restrained and controlled individuals exist and function in an environment which fosters reasonable conduct. But few such individuals will be created, and they will function less well, in an environm ent where they receive little social support, where sadistic acts are openly held up as models and sadistic fantasies are sold to any purchaser. To be sure, a virtuous man will not commit adultery. But a wise wife will avoid situations where the possibili t y is alluring and the 0 available. Why must society lead its members into temptation and then punislipphoeratuw2eyn they do what they were tempted to do? But more than individual cases are at issue. Pornography affects the quality of our lives. It depreci a tes emotional ties and individual relationships in favor of fungible ones, in which physical pleasure is, in Principle, separated from any emotional or even personal relationships. Yet, without "emotional ties which hold the group together," according to Freud there is "the cessation of all feelings of consideration!' and therewith social disintegration and crime. "Emotional ties" are systematically depreciated by pornography.

Erosion of the Social Bond. Thus pornography undermines the social bond on which human association--from family to nation--must depend. It is this social bond which deters most of us, most of the time, from using our neighbors as we please, without regard to their own preferences. We are taught, and most of us learn, to perceive othe r s as ends in themselves and not merely as means to our pleasure. This learning is the basis of society. Yet it is precarious. We need to be socialized continuousl . Pornography undermines the internal restraints on which society must depend and whic9 the criminal law with its sanctions can reinforce but not create. This seems quite enough to limit pornography (we ti I r t 4

2. This was done by the "Moor murderere in England.

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will never succeed in doing more). No need (or possibili to prove a direct and unavoidable relationshl to . Such a direct causal rViationship is likely occasionally, g erhaps, often. But it is argely beiide the point when compared to the erosion of the social ond.

I prefer to live in a society in which bli tations to do without love in individual relationships, to regress to an infantide feuvelcofmsvexuality, stripped of emotion, are not consistently extended. Such invitations are all too likely to be tempting. We all are vulnerable to regression. After all, each of us developed laboriously and with much social effort from anti-social infants into acceptable adults. Invitations to regression should not be socially endorsed. Wherefore the case for prohibition of obscenity seems to be quite strong regardless of whether pornography can be shown to be among the many causes of crime.

Pornography Not Protected. Interstate commerce in pornography is already illegal under federal statutes, and intrastate pornography is illegal in most states. As interpreted by the Supreme Court the First Amendment does not protect pornography, definect as that which:

1) taken as whole predominantly appeals to the prurient interest (a morbid interest in sex); and 2) lacks serious literary, scientific, artistic, or political value (i.e. does not predominant ly offer new ideas or aesthetic experiences); and 3) describes sexual conduct 'in Waifs judged to be patently offensive by the standards of the community in which the materia, is sold. These legal criteria are rather porous. For instance, the depiction of intercourse with animals may be legal, since it may not appeal to the prurient interest of the average person. The depiction of excretion may be legal, since it may not appeal to the prurient interest of the average person either. The standards of the loc a l community are vague (and costly to ascertain), unless the jury is taken to mean the community. The court could have been more concrete and specific. Camouflage and Pretense. Further,present law requires that the material at issue be considered "as a who l e" to determine whether it "predominantly" appeals to the prurient interest. This makes perfect sense for, sq, novels, works meant to be taken as a whole, but no sense for periodicals, which, by definition, consist of independent articles or pictures. Why should it not be sufficient if some pictures, or other contributions, to a periodical are obscene, even if the rest consists of non-obscene essays? The non-obscene material usually serves as camouflage or pretense. For a movie, if more than 5 percent of i t s running time is devoted to images which, taken in isolation, would be regarded as obscene, the movie should be so regarded. Traditionally pornography has not been thought to be protected by the First Amendment. The idea that the First Amendment licenses pornographers, though widespread, is quite recent. It has no legal basis. Further the First Amendment prohibits only abridging freedom of speech and of the press. Yet current interpretations have led the courts to conclude that the First Amendment protect s "expression!' (such as nude dancing)

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as well. Although expression, dancing is certainIX not speech, let alone print. Nothmi i .$ in the First Amendment protects speechless expression, such as music or dance, or for that matter, pictures. Thus, in accordance with the First Amendment, legislat u res cannot abridge the communication of information or of ideas. But pornography as defined by the courts is bereft of eith r Ix ' latures, can constitutionally allow jpomography or nude dancing, but they need not. Th e question is not, can we prohibit po rnography? (The answer is yes.) at is in te in each case is only: Is this material obscene according to the legal definition given e9 3

Explicit Visual Depictions. Of course there will be doubtful cases--but no more so than in other areas of the law. Court s exist to decide doubtful cases and can do so in this area as well as in any other. Standards of obscenity vary over time. Yet at any time there are standards discoverable by the courts. There is no great difficulty in discerning them--as lawyers are awa r e, though they often pretend otherwise. Yet, although often professing to be unable to distinguish obscene from non-obscene material, lawyers do not expose their genitals in court. They must have some knowledge of prevailing standards. Depiction of the nu d e body, even in alluring poses, is no longer regarded as offensive. Nor is ex li it prose. Visual epictions that focus on the genitals--rather than to merely p ici include them- are. Detailed and explicit visual depictions of genital actions, including co p ulation, masturbation, and de iction of genital arousal, are prurient and offensive. So are prurient depictions which =e public what traditionally has been private and intimate. Maldng Distinctions. The perception of pornographic qualities in any work dep e nds on literary or aesthetic criticism. Therefore, some argue, it is a matter of opinion. In court, serious critics often behave as though they believed criticism to be a matter of opinion. But why be a critic--and teach in universities--if it involves no more than uttering capricious and arbitrary opinions? If criticism cannot tell pornography from literature, what can it ten us? Of course, critics may disagree; so do other witnesses, including psychiatrists and handwriting experts. The decision is up to t he courts; the literary witnesses only have the obligation to testify truthfully as to what is, or is not, pornography. Some of the critics who claim that they cannot make the distinction do not wish to, because they regard pornography as legitimate; othe r s fear that censorshi f mography may be extended to actual literature. Whatever the merits of such views 16 donp@t see any), they do not justify testifying that the distinction cannot be made. A witness is not entitled to deny that he saw what he did see, simply to save the accused from a punishment he dislikes. A critic who is really incapable of distinguishing pornography from literature certainly has no business being one; a critic who is capable of making the distinction has no business testifying that he is not. 200 Years of Outlawing Obscenity. Oh yes, there is one bugaboo: A' -o ic state," it is feared, may develop from prohibit' the sale of pornography and punis 0..& rs. a__5 V A That argument is not too plausiblf@o begin with, America did not becom e a "police state" although obscenity has been punished for the last 200 years. Not a single instance is known, throughout history, of a police state, or a dictatorship, developing by prohibiting obscenity, or even b censoring it, or by censoring anything else. It is the other way around. Once you have a porice state, censorship follows. A police state cannot continue without it.

3. There are the usual ancillary questions: Was it offered for sale? Was it properly seized? But they need not detain us. efe g dispu above

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But no democracy has ever become a olice state by usi the criminal law to restrain obscenity. The Weimar Republic in ermany.was not replaced by Nazism because it did. It did not. Once Hitler was in p r, he used it to abolish all freedom and to institute censorship.

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