Pornography and Politics: the Court, the Constitution, and the Commission
| Author | Richard Funston |
| Published date | 01 December 1971 |
| Date | 01 December 1971 |
| DOI | http://doi.org/10.1177/106591297102400401 |
| Subject Matter | Articles |
635
PORNOGRAPHY
AND
POLITICS:
THE
COURT,
THE
CONSTITUTION,
AND
THE
COMMISSION
RICHARD FUNSTON
San
Diego
State
College
N
RECENT
months
the
reports
of
two
presidential
commissions,
one
on
~
campus
disorders,
another
dealing
with
pornography,
have
occasioned
a
good
deal
of
acrimonious
debate.
Even
before
either
of
the
reports
was
issued,
both
had
been
attacked
(and
defended)
with
fiery
conviction.
This
conviction,
however,
has
produced
much
heat,
but
little
light.
This
has
been
so,
because
the
critics
and
defenders
have
often
been
contending
over
documents
unseen,
inferring
the
commissions’
conclusions
from
rumor,
hearsay,
or
other
omens,
and
because
political
sloganeering
always
badly
confuses
complex
constitutional
issues
which
require
the
considered
judgment
that
is
the
product
of
cool
reason.
This
is
particularly
true
of
the
report
of
the
President’s
Commission
on
Obscenity
and
Pornography.’
The
campus
commission
was
confronted,
at
least
obliquely,
with
problems
of
constitutional
dimensions;
the
pornography
commission
was
from
the
outset
forced
to
address
itself
directly
to
a
constitutional
issue.
While
the
Scranton
commission
was
created
in
response
to
a
series
of
overtly
political
events,
there
can
be
little
doubt
that
the
Lockhart
commission
came
into
existence
as
a
result
of
the
Supreme
Court’s
recent
pronouncements
on
the
subject.
Within
the
past
decade,
the
Court
has
rendered
several
significant
decisions
in
this
area
of
First
Amendment
freedom,
developing
constitutional
doctrines
of
both
interest
and
importance
not
only
for
lawyers
but
also
for
laymen.2
In
light
of the
commis-
sion’s
report,
then,
it
may
be
of
profit
to
reconsider
this
body
of
judge-made
law
and
to
analyze
its
philosophic
and
political
implications.
A
systematic
examination
of
the
obscenity
decisions
reveals
two
central
or
generic
constitutional
issues.3
3
The
first
of these
derives
from
the
imprecision
of
the
term
&dquo;obscenity.&dquo;
In
its
efforts
to
define
the
obscene,
the
Court
has
promul-
1
The
Report
of
the
Commission
on
Obscenity
and
Pornography
(1970).
The
Report
is
also
available
in
an
inexpensive
paperback
edition
published
by
Bantam
Books,
Inc.
2
For
general
discussions
of
obscenity
and
the
law,
see
Alpert,
"Judicial
Censorship
of
Obscene
Literature,"
52
Harv.
L.
Rev.
40
(1937);
Lockhart
and
McClure,
"Literature,
the
Law
of
Obscenity
and
the
Constitution,"
38
Minn.
L.
Rev.
295
(1954);
Symposium,
"Obscenity
and
the
Arts,"
20
Law
and
Contemporary
Problems
531
(1955);
Kalven,
"The
Metaphysics
of
the
Law
of
Obscenity,"
1960
Sup.
Ct.
Rev.
1;
Lockhart
and
McClure,
"Censorship
of
Obscenity:
The
Developing
Constitutional
Standards,"
45
Minn.
L.
Rev.
5
(1960) ;
M.
Ernst
and
A.
Schwartz,
Censorship:
The
Search
for
the
Obscene
(1966);
Gagnon
and
Simon,
"Pornography—Raging
Menace
or
Paper
Tiger?"
in
J.
Gagnon
and
W.
Simon,
eds.,
The
Sexual
Scene
(1970),
p.
137.
3
Others
have
seen
the
problems
as
involving
matters
of
state
procedures
for
enforcing
obscenity
regulation
and
the
difficulties
of
prior
censorship.
See,
e.g.,
D.
Fellman,
The
Censorship
of
Books
(1957);
Nimmer,
"The
Constitutionality
of
Official
Censorship
of
Movies,"
25 U.
Chi.
L.
Rev.
625
(1958);
A.
Kelly
and
W.
Harbison,
The
American
Constitution:
Its
Origins
and
Development
(1970),
pp.
1045-53.
Although
these
prob-
lems
are
both
real
and
difficult,
I
consider
them
to
be
peripheral
to
a
general
discussion
of
obscenity
regulation
per
se.
Therefore,
major
decisions
such
as
Kingsley
Books
v.
Brown,
354
U.S.
436
(1957),
and
Times
Film
Corp.
v.
Chicago,
365
U.S.
43
(1961),
dealing
with
the
constitutionality
of
prior
restraints,
and
Marcus
v.
Search
Warrants,
367
U.S.
717
(1961),
and
Bantam
Books
v.
Sullivan,
372
U.S.
58
(1963),
dealing
with
state
procedures
for
enforcing
obscenity
statutes,
are
beyond
the
scope
of
this
article.
636
gated
several
different
standards.
Briefly,
they
are:
(1)
the
&dquo;social
value&dquo;
test;
(2)
the
American
Law
Institute
test,
i.e.
&dquo;Whether
to
the
average
person,
applying
contemporary
community
standards,
the
dominant
theme
of
the
material
taken
as
a
whole
appeals
to
prurient
interest&dquo; ;4
(3)
the
&dquo;hard-core
pornography&dquo;
test;
and
(4)
the
&dquo;contextual&dquo;
or
&dquo;variable
obscenity&dquo;
test.
The
second
set
of
constitutional
difficulties
involves,
at
least
implicitly,
the
&dquo;clear
and
present
danger&dquo;
doctrine.5
5
Toward
what
evils
is
obscenity
regulation
directed?
a
Analysis
suggests
five
possibilties:
(1)
the
incitement
to
anti-social
sexual
conduct;
(2)
the
stimulation
of
psychological
excitement;
(3)
the
arousal
of
disgust
or
revulsion
toward
normal
sexuality;
(4)
the
advocacy
of
improper
sexual
values
or
mores;
and
(5)
the
impact
of
obscenity
on
character
and,
hence,
slowly
and
remotely
on
conduct.&dquo;
The
Court
first
attempted
to
define
&dquo;obscenity&dquo;
in
Butler
v.
Michigan,
in
which
it
unanimously
invalidated
a
state
statute
prohibiting
the
sale
of
printed
matter
&dquo;tending
to
incite
minors
to
violent
or
depraved
or
immoral
acts.&dquo;
Mr.
Justice
Frankfurter
interpreted
the
statute
as
preventing
the
sale
to
the
general
public
of
literature
which
might
injuriously
affect
the
young.
To
his
mind
this
was
&dquo;burning
down
the
house
to
roast
the
pig.&dquo;
Thus,
by
implication,
Butler
rejected
the
traditional
test
for
obscenity,
i.e.,
the
effect
of
isolated
passages
upon
the
suscep-
tible.9
Adults
became
not
merely
the
preferred
but
the
constitutionally
required
audience
by
which
to
test
the
obscenity
of
materials
distributed
to
the
general
public.
Moreover,
the
state,
being
precluded
from
using
the
impact
on
youth
as
a
standard
for
judging
the
obscenity
of
materials
generally
distributed,
was
equally
inhibited
from
using
the
young
as
a
justification
for
generalized
control
of
obscenity.
The
following
term,
in
Roth
v.
U.S.
and
its
companion
case,
Alberts
v.
Cali-
fornia,
the
Court
explicitly
discarded
the
long-standing
English
definition
of
obscenity,
while
simultaneously
changing
the
constitutionally
required
test
audience
from
&dquo;adults&dquo;
to
the
&dquo;average
adult.&dquo;&dquo;’
Roth
upheld
federal
postal
censorship
of
pornographic
materials,
and
Alberts
sustained
a
California
statute
imposing
criminal
sanctions
upon
the
distribution
of
obscene
literature.
Mr.
Justice
Brennan,
for
the
Court,
began
his
opinion
in
a
manner
clearly
presaging
his
conclusion:
&dquo;The
dispositive
question
is
whether
obscenity
is
utter-
ance
within
the
area
of
protected
speech
and
press.&dquo;
11
The
question
could,
of
course,
be
framed
otherwise.
For
Mr.
Justice
Harlan
the
issue
was
the
constitu-
tional
permissibility
of
censoring
the
materials
actually
before the
Court.
Justices
Black
and
Douglas,
on
the
other
hand,
inquired
as
to
the
constitutionality
of
the
4
Model
Penal
Code §
207.10
(Tent.
Draft
No. 6,
1957).
5
See
Schenk
v.
U.S.,
249
U.S.
47
(1919).
6
For
an
elaboration
of
the
possibility
of
this
evil,
see
Roth
v.
U.S.,
354
U.S.
476,
502
(1957)
(Harlan,
J.,
concurring
in
part
and
dissenting
in
part).
7
352
U.S.
380
(1957).
8
Ibid.,
at
383.
9
Regina
v.
Hicklin,
L.R.
3
Q.B.
360
(1868).
The
famous
test
of
obscenity
as
"pornographic
matter
having
influence
upon
particularly
susceptible
persons"
appears
in
the
opinion
of
Lord
Cockburn
at
371.
10
354
U.S.
476
(1957).
11
Ibid.,
at
481.
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