With the banning of Deep Throat in New York and elsewhere, followed by the new Supreme Court ruling on obscenity guidelines, the tenacious dilemma of censorship once again looms before the public eye. It's sort of like flu epidemics, or like weeds in the garden: every few years, some samples from the then current fringes of social acceptability spring up and are subjected to legal scrutiny. The usual forces line up on opposite sides, like Democrats against Republicans or the Dodgers versus the Giants. Watching the battle between our censors and our civil libertarians has become a national pastime. Little does it matter what works are in dispute; the issues remain remarkably constant. Indeed, over the decades, the questions have become even more refined--or crude, if you prefer--and are now beginning to be asked in their purest forms: it's a lot clearer what's in dispute over Deep Throat than in Ulysses or Lady Chatterly's Lover half a century ago.
But after a series of stunning victories, the civil libertarians are no longer winning. They certainly have pushed the censors into the corner, so that now the issue squarely revolves around what the vast majority of the public (civil libertarians included) would label "pornography," according to Webster's. Out of court, no longer are we asking "is it pornography?" but "why not pornography?" The courtroom is another story, however, since legal precedent supports the censorship of pornography in principle (Roth v. U.S., 1957). In the past, in court, the battle assumed absurdist dimensions: was Deep Throat "educational" in nature? Or did it have "redeeming social value?" The civil libertarians were put (perhaps too willingly) in the virtually ridiculous position of finding social excuses for the pornography in question. This method of defense was doomed to failure, as it did in fact fail with Deep Throat and others.
With their backs against the walls of moral virtue, the censors are prepared for a knock-down-drag-out fight, which I expect will last for years to come. They've no choice, from their viewpoint, for this is the last bastion. It will do civil libertarians no good to cry "But if we censor here, where will it stop? Today, Deep Throat, tomorrow, free expression in the arts." The censors will cry equally plaintively, "But if we don't censor here, where will it stop? Today, Deep Throat, tomorrow, the destruction of our civilization." As befits a subject with sexual connotations, the arguments tend to become impassioned.
For years, the cinema has been a primary hotbed. As a purveyor of mass culture, it is surpassed only by television--which will yet have its time and place as a battleground. In its ability to create the illusion of reality, the cinema surpasses even most live entertainment. It is easily accessible, yet a conscious act of choice must be made to gain access: a viewer must go to a theatre and pay admission. Well-made films are too expensive to allow for individual purchase and ownership on a mass basis--hence, the ongoing necessity of "public exhibition." For all these reasons, the censorship of pornography has found its ultimate challenge in the arena of the movie house--a challenge which therefore must concern me not only as a citizen, but as a film critic.
Although the pornographic films I've seen thus far, both hard and soft core, have been quite boring to me, this need not always be the case. Somewhere between the extremes of Last Tango in Paris and The Devil in Miss Jones lies a vast, as yet untapped potential for quality erotic cinema. However, it is not because of this that I am vigorously on the side of the civil libertarians. Intrinsic to most censorship arguments is the supposition that the putative censors are morally superior to pornography's patrons. It is a form of elitism, as dogmatic and offensive as a religious sect which insists that it alone possesses the sole pathway to the Godhead.
One of the most persuasive spokesmen for the censor's side is Jack Vizzard, who spend a career in the Hollywood Production Code Office, passing judgment on the acceptability of motion pictures, and who wrote about it a few years ago in an entertaining book called See No Evil. Summing up at the end of his book, Vizzard warns that "a tyranny is set up of sordid competition for lowest common denominators, in which writer is set against writer, and creative mind against creative mind in a contest first for the bold, then the shocking, then the sickly fringe, and then, lastly the corrupt. It is degrading to society to be party to a race into the lurid. This is what happened in the case of the late Roman Theatre, and it was symbolic of what was happening to the culture. The stage was, at one and the same time, both the victim and the stimulator of a malaise that denatured a whole people, and made them easy prey of outside forces."
Even ignoring the fact that there are other theories as to the causes of the fall of the Roman Empire, my reaction to this argument is that if our civilization is indeed so tenuous that it could be destroyed by the mere exhibition of pornography, then it is not worth saving. But a far more important issue to me is what underlies Vizzard's reasoning. Axiomatic to his viewpoint is an absolute notion of corruptness of luridness. I deny this axiom, at least for most sexual matters. Whatever my personal reactions to its moral implications, pornography seems to me to be nevertheless one coherent view, among many, of human existence. To ban it is tantamount to banning nonconformist lifestyles.
Vizzard also states, "To stay in existence, for us, means a constant process of fine tuning to find and hold the middle ground between the two polarities of Responsibility and Freedom. These two opposites are the Scylla and Charybdis of democracy. To love one at the expense of the other is to fail, and to be doomed." Fair enough. But I fail to see how the depiction of sexual activity between consenting adults threatens our sense of Responsibility. Vizzard himself even comments, at the beginning of his book, "What kind of god would God be, who would create flesh and blood and then make man spend all his energies trying to contradict them?"
One of the essential ideals, if not practices, of democracy is to protest the rights of minority groups to behave in ways inimical to the majority--providing such expression does not curtail the freedom of others. This is my version of democracy's Scylla and Charybdis: to determine if and when the freedom of one becomes the oppression of another. For example, I would not oppose the censorship of cinema clearly promoting and advocating rape (I expect civil libertarian purists would take issue with me on this.). But cinema depicting sex practices which do not involve coercion belongs, in my viewpoint, in the category of expression of a minority view which does not curtail the freedom of others.
The only argument for censorship which I feel deserves consideration is that uncensored sexual material may lead to a higher incidence of sex-related crimes. However, the bulk of available evidence says this is not the case. The recent Presidential Commission's Report on Pornography concluded that exposure to pornography probably had little or no adverse affects on individuals (some have refused to accept these findings). But more convincing is the fact that in Denmark, where all censorship has been abolished, a remarkable and extensive drop in sexual crimes has been reported. If anything, it would seem therefore that the best way to protect the general public would be to allow outlets for sexual energy, rather than to suppress them.
Many of our species apparently prefer to regard humanity as elevated from the rest of the animal kingdom by virtue of a "soul" or other such mystical paraphernalia. Some, however, see the species as animal in origin, and regard sexuality in the same light. Opponents of pornography who argue that it is bestial in nature, and reduces human activity to the level of animals, are quite correct. This is, perhaps, my reason for being bored with current pornography. But it is beside the point. Pornography is not a popular view, yet it is a coherent one, one which can be argued to even have a philosophy of sorts underlying it. As such, it has the right to be expressed, if we intend to live up the democratic ideals and guarantees of the first amendment to the constitution.
Thus, my advice to civil libertarians as we regroup and prepare for the next battle, is to drop the approach of finding social excuses for pornography, or arguments such as "who will protect us from our protectors?" We must stop apologizing for pornography, stop talking about threats to our freedoms in abstract terms. We should defend pornography specifically on its merits, on the fact that it represents distinct minority views which have every constitutional right to exist. We should challenge the logic of Chief Justice Burger, who wrote in the new Supreme Court decision, "At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit first amendment protection." Any depiction of sexual behavior has, at a minimum, serious pshychological value. There is a definite point of view being expressed in pornography, a view about the potential nature of human sexual conduct. Just because the courts, or even the vast majority of the public, finds such a view "patently offensive" is no argument to deny that view the protection of the first amendment. The first amendment was designed precisely to avoid that kind of tyrannical usurpation of unpopular minority views. The history of ideas is replete with examples of unpopular views which later proved to have value: the views of Jesus, Copernicus, Luther, Diderot, Darwin, Marx and Freud, to name just a few, met considerable resistance, not to mention censorship, at their inception. Whether or not there proves to be any value in pornography's view, it is not the business of our courts, in principle, to regulate the flow of ideas--only to protect the individual's right to ignore those ideas. And pornography is an idea, a point of view like any other.
Therefore, the only legitimate constitutional concern for the courts on this matter, as previously suggested, is to determine if and when the freedom of one becomes the oppression of another. The courts have already dealt with that concern, in a more or less reasonable way, by requiring restrictions on advertising and outdoor public displays, and by prohibiting exposure of pornography to juveniles.
In 1969, I wrote an article on The Killing of Sister George, a film which, incredibly enough, was actually banned in Boston. After the article appeared, I received an anonymous poison pen letter with anti-semitic overtones. In that article, I wrote: "The point is that there are certain films that those with conservative tastes ought not to go to. If they do go, in spite of the notices, that is a problem of their personality, not of the film. When will the authorities grow up, and listen to the U.S. Constitution? Adults are old enough to decide for themselves what they want to see or not see. The courts have no business playing parent for the rest of us."
Is the concept of "freedom of expression" going to be another American hypocrisy? The battle lines are drawn.
Emanuel Goldman is a research fellow at the Harvard Medical School and a past editor of The Phoenix and The Boston Review of the Arts.