The End of Obscenity

Forget about obscenity, writes Jeffrey Rosen in the New Atlantis, the new journal published by the Ethics and Public Policy Center. Already back in 1973, the Supreme Court was caving when it adopted (in Miller v. California) an impossible-to-maintain distinction between hard-core and soft-core pornography, with the latter limited to adults. The idea of judging by “community standards” was short-lived. Ten years after Miller, a federal court ruled that “detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation” are not obscene “in light of community standards prevailing in New York City.” Not if the measure is what was then the X-rated Times Square area, which has in recent years been turned into a “family friendly environment.” But those court rulings were in the days before the Internet. Rosen, who is the New Republic’s regular on legal matters, cites data from a number of studies. For instance, one fourth of search engine requests every day are for pornographic material. Far below, one notes, the number of requests that fall into the broad category of “religion.” So Chesterton’s nation with the soul of a church has not closed down its whorehouses. What else is new?

Men make up 65 percent of visitors to porn sites, reports Rosen. No surprise there. Then there is this: “Moreover, 15 percent of teens (ages twelve to seventeen) and 25 percent of older boys (ages fifteen to seventeen) have lied about their age to access an Internet site, according to the Pew research center.” Only 15 and 25 percent? That strikes me as encouragingly low for boys in those hyper-hormonal years, considering that lying involves nothing more than pushing a button and nobody will know (except, apparently, the people at Pew). Rosen cites international data: 40 percent of adults in Spain, 25 percent in Britain, and 19 percent in Sweden, have visited what he calls “an adult site,” meaning, of course, an adolescent site, all pornography being adolescent. He concludes from this that “there is no country in which consumption of hard-core pornography could plausibly be said to be ‘patently offensive’ to the average person by applying contemporary community standards.”

I suppose it depends on the meaning of “average.” If 75 percent of adults in Britain have not visited porn sites, despite their ready availability in the privacy of one’s home, might not that have a bearing on what is average? I expect that more than 20 percent of Americans have gotten drunk at some time, which hardly means that they, never mind all those who haven’t, think that drunkenness is not patently offensive. That a minority of a population gets drunk from time to time or furtively—and possibly with feelings of shame and guilt—watch pornography is hardly the measure of “community standards.” Unless, of course, the majority of the Supreme Court is doing the measuring. At this point, Rosen reaches more solid ground. It is not, he notes, the standards of the American people that matter but the opinion of the Court. There probably is nothing to be done about obscenity or pornography if the last word is the Court’s ruling on sexual autonomy in Lawrence v. Texas, which established a constitutional right to sodomy.

The Sweet Mystery Again

In that decision, Justice Anthony Kennedy, writing for the majority, repeated the “sweet mystery of life” rule that was first announced in Casey v. Planned Parenthood (1992) in upholding the unlimited abortion license: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Ah yes, those are no doubt the solemn questions pondered by a middle-aged sex addict visiting a site titled “Hot Dudes Do Dixie Chicks.” Rosen correctly observes: “Now that moral disapprobation is not considered a constitutionally rational reason for restricting behavior, no definition of obscenity that relied on communal disapproval could easily pass constitutional scrutiny, unless one could demonstrate a clear harm to others.” He thinks that John Stuart Mill’s “harm principle” may still forbid child pornography. I expect he underestimates the influence of experts willing and eager to testify that it’s good for the kiddies. He entertains the possibility that the next thing to be decriminalized is incest between consenting adults, at least if they are “using birth control.” The legal requirement that brothers and sisters, or fathers and daughters, use contraception may strike one as a flagrant violation of their constitutional right to define for themselves the “the mystery of human life.”

The editors of the New Atlantic paired Rosen’s article with an essay by David Hart, “The Pornography Culture.” Hart is perhaps a bit too vain about not being a lawyer, but it does help him to view the Supreme Court’s rulings on pornography with something suspiciously like common sense. “It is difficult for me to grasp,” writes Hart, “why the Court works upon the premise that whatever means are employed to protect children from Internet pornography should involve the barest minimum imposition possible upon the free expression of pornographers.” He fails to appreciate that the Court has long since decided that pornographers have a constitutional right to do what they do, but there are still inhibitions about their doing it with children or aiming their product at children. We are not yet prepared for the unbounded flight of the liberty affirmed in the “sweet mystery of life” doctrine.

As for the harm principle, Hart again indulges in dangerous flirtation with common sense. “The damage that pornography can do—to minds or cultures—is not by any means negligible. Especially in our modern age of passive entertainment, saturated as we are by an unending storm of noises and images and barren prattle, portrayals of violence or of sexual degradation possess a remarkable power to permeate, shape, and deprave the imagination; and the imagination is, after all, the wellspring of desire, of personality, of character. Anyone who would claim that constant or even regular exposure to pornography does not affect a person at the profoundest level of consciousness is either singularly stupid or singularly degenerate.” Here Hart betrays his insouciant indifference to jurisprudential precedent, quite ignoring the fact that the Court has long since made the discovery that one man’s stupidity is another’s genius, and that one man’s degeneracy is another’s poetry. Hart goes so far as to say that our courts, reflecting our culture, are confusing liberty with license.

Recognizing, as Hart does, that “we are already a casually and chronically pornographic society,” one is left wondering what might be done about it. With the Child Online Protection Act, Congress tried to outlaw certain kinds of pornography, while the Supreme Court ruled that the act was not sufficiently solicitous of the rights of legitimate pornographers. That these questions are left to Congress and the Court reveals, says Hart, our supine dependence on the state to impose rules that we are not prepared to impose on ourselves. “We call upon the state to shield us from vice or to set our vices free because we do not have a culture devoted to the good, or dedicated to virtue, or capable of creating a civil society that is hospitable to any freedom more substantial than that of subjective will. This is simply what it is to be modern.” Hart ends with the always pertinent reminder that there is a permanent tension between the biblical tradition and that of liberal democracy. “We belong to a kingdom not of this world; while we are bound to love our country, we are forbidden to regard it as our true home.” To which let all the people of God say, “Amen.”

However: I think it both unnecessary and unwise to resign ourselves to the inevitability of liberal demo-cracy ending up in the cesspool of libertinism. The founders spoke of “ordered liberty,” liberty ordered to moral truth. Perhaps that understanding of liberty cannot be revived, but it certainly will not be revived if we give up on it. In dissenting from Lawrence, Justice Antonin Scalia said it marked the death of laws reflecting a democratically determined sense of morality, of right and wrong. There is a measure of truth in that, but, in the larger picture, all laws reflect a moral judgment about what is right or wrong, fair or unfair, supportive of or opposed to the common good. So long as we are a relatively free society, politics, including law, will be a process of, as Aristotle would instruct us, deliberating how we ought to order our life together. The “ought” in that formulation signals the inescapably moral character of the enterprise. Justice Kennedy’s notion of “the heart of liberty” is a sure formula for the undoing of law itself. It may not stand. Court majorities come and go. The courage of legislators to challenge judicial tyranny waxes and wanes.

I think both John Lofton and Frank Zappa could be accused of being misologists; Lofton because he fears words, and Zappa because he discounts their importance.

That said, I think Zappa’s repetitive dismissal of the importance of words in the beginning of the clip (”They’re just words!”) was more a failed rhetorical device than a accurate account of his position on words or arguments. Also, at about 16 minutes in, he affirms that words are indeed important, but says that much of the brouhaha is about seven specific words that the FCC deemed too vulgar. I imagine he thought words important (otherwise why go on TV to oppose censorship?) but doesn’t want one entity or ideology to decide which words stay and which ones go. Indeed, he expresses worry that we’re sliding into a “fascist theocracy,” one that would conceivably censor Stevie Wonder for referring to astrology in one of his songs (18:50).

Plato’s Phaedo Translated by Eva Bran, Peter Kalkavage and Eric Salem. Focus. 1998.

I think he’s saying they are just words on paper - they don’t become meaningful until the listener takes over and even then it’s at their discretion. The power isn’t in his words specifically, but in the interpretation behind them. He didn’t write these down in a book to be read, he puts them to music to be taken in, worked out by the listener, and enjoyed.

I think that if you are listening to a song, such as Prince’s “Sister”, and thought that it was saying incest is okay - then I think you were already contemplating these thoughts.”

Trenchant.

This is the lesson I take from your comment: If we’re worried about negative outcomes—school violence, incest etc.—of listening to certain music—Marylin Manson, His Purple Majesty, etc.—we’re better off putting our energies into improving the mental health of the listener than into preventing the listener from being tipped over the edge by a song on the radio.

The arguments here and elsewhere seem to revolve around two main ideas: that music makes people do bad things, and music has the ability to promote incest. Interesting. I LOVE music, listen to an extraordinary amount - anywhere from from classical to rap. I pretty much love it all, and so when I hear that because some kid listens to Marilyn Manson and acts out I have to have my music compromised, it makes me angry. It is no longer that intimate relationship between me and the artist(s), it is now a crowded censorship party and just feels dirty.

I had a friend once tell me that Pink Floyd saved his life. When I listen to Pink Floyd it doesn’t seem to have the same affect - mine is more of a calming sensation. But my friend was needing to be saved, in a way he was searching it out. So when he listened to it he heard hope (not trying to get cheesy) in the lyrics, not necessarily the specific lyrics. So Mr. Lofton when Zappa says they are “just words” he’s not necessarily “denigrating the importance of language”. I think he’s saying they are just words on paper - they don’t become meaningful until the listener takes over and even then it’s at their discretion. The power isn’t in his words specifically, but in the interpretation behind them. He didn’t write these down in a book to be read, he puts them to music to be taken in, worked out by the listener, and enjoyed.

I think that if you are listening to a song, such as Prince’s “Sister”, and thought that it was saying incest is okay - then I think you were already contemplating these thoughts. As for it being explicit, sure it is because it goes against what is the social norm. Does that mean it should be banned? I say no. He wrote it for a reason, even if it was just for that moment. People like it, whether it be the beat, the voice, or maybe they can even relate. Who are we to judge or even take that from them?

My point of view (which is scaring me in its conservatism) is that I don’t think the government is the best entity for sorting out what’s ugly and what’s not, what’s acceptable to watch or listen to. I say let cultural norms, markets, families and religions sort that stuff out. They do a much better job. The result is a sort of ‘soft censorship.’

Should speech be censored by the government? Only speech that will result in or is linked to harm (example: the harm to children in the case of child pornography) or that amounts to physical intimidation. Another example: I agree with the U.S. Supreme Court’s ban on cross-burning. It’s speech, sure, but it’s also inextricably linked to terrorism and violence.

Yelling ‘Bomb.’ This would likely cause panic, which could result in injury and death to innocent bystanders. By contrast, if you don’t like Prince’s lyrics, you can change the station (thus performing the most basic act of censorship). No real harm done. If you don’t want your child to listen to it, by all means, censor it!