Let's Put Pornography
Back in the Closet
Free speech is one of the great foundations on which our democracy rests. I am old enough to remember the Hollywood
Ten, the screenwriters who went to jail in the late 1940's because they refused to testify before a congressional committee about their political affiliations. They tried to use the First Amendment as a defense, but
they went to jail because in those days there were few civil liberties lawyers around who cared to champion the First Amendment right to free speech, when the speech concerned the Communist Party.
The Hollywood Ten were correct in claiming the First Amendment. Its high purpose is the protection of unpopular ideas
and political dissent. In the dark, cold days of the 1950's, few civil libertarians were willing to declare themselves First Amendment absolutists. But in the brighter, though frantic, days of the ,1960's, the
principle of protecting unpopular political speech was gradually strengthened.
It is fair to say now that the battle has largely been won. Even the American Nazi Party has found itself the
beneficiary of the dedicated, tireless work of the American Civil Liberties Union. But -- and please notice the quotation marks coming up -- "To equate the free and robust exchange of ideas and political debate with
commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a misuse of the great guarantees of free speech and
free press ."
I didn't say that, although I wish I had, for I think the words are thrilling. Chief
Justice Warren Burger said it in 1973, in the United States Supreme Court's majority opinion in Miller v. California. During the same decades that the right to political free speech was being strengthened in
the courts, the nation's obscenity laws also were undergoing extensive revision.
It's amazing to recall that in 1934 the question of whether James Joyce's Ulysses should be
banned as pornographic actually went before the Court. The battle to protect Ulysses as a work of literature with redeeming social value was won. In later decades, Henry Miller's Tropic books, Lady
Chatterley's Lover and the Memoirs of Fanny Hill also were adjudged not obscene. These decisions have been important to me. As the author of Against Our Will, a study of the history of rape that
does contain explicit sexual material, I shudder to think how my book would have fared if James Joyce, D. H. Lawrence and Henry Miller hadn't gone before me.
I am not a fan of Chatterley. or the Tropic books, I should quickly mention. They
are not to my literary taste, nor do I think they represent female sexuality with any degree of accuracy. But I would hardly suggest that we ban them. Such a suggestion wouldn't get very far anyway. The battle
to protect these books is ancient history. Time does march on, quite methodically. What, then, is unlawfully obscene, and what does the First Amendment have to do with it?
In the Miller case of 1973 (not Henry Miller, by the way, but a porn distributor who sent unsolicited stuff through
the mails), the Court came up with new guidelines that it hoped would strengthen obscenity laws by giving more power to the states. What it did in actuality was throw everything into confusion. It set up a
three-part test by which materials can be adjudged obscene. The materials are obscene if they depict patently offensive, hardcore Sexual conduct; lack serious scientific, literary, artistic or political value; and
appeal to the prurient interest of an average personas measured by contemporary community standards.
"Patently offensive," "prurient interest" and "hardcore" are indeed words to conjure with. "Contemporary community
standards" are what we're trying to redefine. The feminist objection to pornography is not based on prurience, which the dictionary defines as lustful, itching desire. We are not opposed to sex and desire, with or
without the itch, and we certainly believe that explicit sexual material has its place in literature, art, science and education. Here we part company rather swiftly with oldline conservatives who don't want sex
education in the high schools, for example.
No, the feminist objection to pornography is based on our belief that pornography represents hatred of women, that
pornography's intent is to humiliate, degrade and dehumanize the female body for the purpose of erotic stimulation and pleasure. We are unalterably opposed to the presentation of the female body being stripped,
bound, raped, tortured, mutilated and murdered in the name of commercial entertainment and free speech.
These images, which are standard pornographic fare, hive nothing to do with the hallowed right of political dissent.
They have everything to do with the creation of a cultural climate in which a rapist feels he is merely giving in to a normal urge and a woman is encouraged to believe that sexual masochism is healthy, liberated
fun. Justice Potter Stewart once said about hardcore pornography, "You know it when you see it," and that certainly used to be true. In the good old days, pornography looked awful. It was cheap and sleazy,
and there was no mistaking it for art.
Nowadays, since the porn industry has become a multimilliondollar business, visual technology has been employed in
its service. Pornographic movies are skillfully filmed and edited, pornographic still shots using the newest tenets of good design artfully grace the covers of Hustler, Penthouse and Playboy, and the
publicand the courtsare sadly confused.
The Supreme Court neglected to define "hardcore" in the Miller decision. This was a mistake. If "hardcore" refers
only to explicit sexual intercourse, then that isn't good enough. When women or children or menno matter how artfullyare shown tortured or terrorized in the service of sex, that's obscene. And "patently offensive,"
I would hope, to our "contemporary community standards."
Justice William 0. Douglas wrote in his dissent to the Miller case that no one is "compelled to look." This is hardly
true. To buy a paper at the comer newsstand is to subject oneself to a forcible immersion in pornography, to be demeaned by an array of dehumanized, choppedup parts of the female anatomy, packaged like cuts of meat
at the supermarket. I happen to like my body and I work hard at the gym to keep it in good shape, but I am embarrassed for my body and for the bodies of all women when I see the fragmented parts of us so
frivolously, and so flagrantly, displayed.
Some constitutional theorists (Justice Douglas was one) have maintained that any obscenity law is a serious
abridgment of free speech. Others (and Justice Earl Warren was one) have maintained that the First Amendment was never intended to protect obscenity. We live quite compatibly with a host of free speech abridgements.
There are restraints against false and misleading advertising or statements shouting "fire" without cause in a crowded movie theater, etc.that do not threaten; but strengthen, our societal values.
Restrictions on the public display of pornography belong in this category.
The distinction between permission to publish and permission to display publicly is an
essential one and one which I think consonant with First Amendment principles. Justice Burger's words which I quoted above support this without question. We are not saying "Smash the presses" or
"Ban the bad ones," but simply "Get the stuff out of our sight." Let the legislatures decide -- using realistic and humane contemporary community standards -- what can be displayed and what
cannot. The courts, after all, will be the final arbiters.