Pornography, the Rule of Law, and constitutional mythology.

• Author: Tubbs, David L.

1. Instability in the law of obscenity II. Triumph of a Liberal Narrative III. Justifications for regulation A. Promoting Human Dignity B. Protecting the Private Realm of Life C. Affirming Human Responsibility IV. A Pivotal Ruling V. A Compendium of Myths A. Myth #1: There Is an Easy Solution to the Problem of Sparing Minors and Unconsenting Adults Exposure to Pornography B. Myth #2: The Framers Opposed All Restrictions on Freedom of Expression C. Myth #3: The Supreme Court Continues to Recognize the "Compelling" Public Interest in the Psychological Well-Being of Youths D. Myth #4: Regulatory "Burdens" on the Freedom of Speech Are Constitutionally Indistinguishable from Flat Prohibitions E. Myth #5: Laws Establishing a Minimum Age to View Pornography Are Indefensible F. Myth #6: Self-Censorship Is Always Bad VI. Conclusion I. INSTABILITY IN THE LAW OF OBSCENITY

   In the judicial branch of government, a chief benefit of adherence to "the rule of law" is predictability with respect to future developments. (1) The rule of law encompasses more than one concept, but its role in helping to predict legal developments in the near future is widely acknowledged. (2) The phrases "helping to predict" and "in the near future" should be stressed. No one believes that scrupulous adherence to the rule of law leads to unfailingly correct predictions about rulings in particular cases or reliable predictions about legal developments far into the future.

   In the United States, the predictability that is being described here is linked to the law's respect for precedent. Because stare decisis requires judges to decide similar cases similarly, it creates expectations among judges, attorneys, and scholars. (3) Those expectations lead to arguments being formulated in anticipation of future cases and controversies.

   Because it allows persons to order their lives in certain ways and limits judicial arbitrariness, the rule of law has moral dimensions. There is something good or desirable about promoting conditions that give people some predictive power about the judiciary's actions and rulings, as well as actions that may follow them in the legislative and executive branches. Some of the moral dimensions are captured in Lon Fuller's account of the principal elements of the rule of law. (4) They are also seen in Robert P. George's defense of Fuller's position in the latter's famous debate with H.L.A. Hart. (5)

   Fuller identifies eight elements essential to the idea of legality and the rule of law. (6) In his account, a bona fide legal system will exhibit the following: (1) the prospectivity and nonretroactivity of legal rules; (2) the promulgation of the rules; (3) their clarity; (4) their coherence with one another; (5) their constancy over time; (6) their generality of application; (7) the absence of impediments to compliance with the rules by those subject to them; and (8) the congruence between the rules and official actions. (7)

   Assessing the debate between Fuller and Hart, Professor George agrees with Fuller that a state's faithfulness to the rule of law is typically a matter of degree. (8) The eight elements identified above will sometimes be found in bad or even unjust legal systems. (9) Nonetheless, in some circumstances these elements allow observers to say that one state hews more closely to the rule of law than does another.

   If Fuller and George are correct, fidelity to the rule of law in constitutional jurisprudence involves very high stakes because of the "architectonic" character of constitutional law. (10) For those political communities with a written constitution, the document significantly defines or "constitutes" the community. One would therefore hope that the predictability associated with the rule of law can be detected in many areas of constitutional law today. (11)

   In at least one area, however, the predictability and relative stability associated with adherence to the rule of law is absent. One could perhaps go further and even argue that there is radical instability hiding behind an artifice or Potemkin village of stability. Yet that appearance of stability has led many persons to believe that the essential questions in this area of constitutional law have been satisfactorily answered and that the rule of law is being followed.

   The area in question involves the public regulation of pornography and the competing requirements of the First Amendment. In the more than forty years since the Supreme Court decided Miller v. California, (12) the nation seems to have had a stable framework for regulating pornography and honoring the constitutional values of freedom of speech and of the press. Miller put forward a three-part test for determining the constitutionality of obscenity prosecutions, and that test--to judge from its longevity and the absence of controversy surrounding it today--surely seems "workable." (13) The Miller test asked (1) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the "prurient interest"; (2) whether the work depicts or describes in a "patently offensive way" sexual conduct defined by the relevant state law(s); and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (14)

   Even if this three-part test appears straightforward, Miller was not and could not have been the last word on the subject of obscenity and the First Amendment. Today, some persons might be inclined to regard Miller as a case that thoroughly answered the central questions in this area of constitutional law. In fact, it did nothing of the sort.

   As one piece of evidence, consider the following: just five years after the Supreme Court decided Miller, it conceded in Pinkus v. United States (15) that Miller failed to discuss some basic matters relating to the application of its three-part test, including the reference point for the first part of the test. (16)

   Miller also fails to provide legal definitions or practical guidelines for two common situations that legislators have historically felt obliged to address--one involving children, the other involving the legal category of "unconsenting adults." (17) More specifically, legislators have recognized the public interest in sparing children and other minors from exposure to pornography and the legitimacy of an adult's asserted interest in being spared from unwanted exposure to pornography in public places and in the home. (18)

   Miller and its companion case Paris Adult Theatre I v. Slaton (19) helped to establish a regulatory framework for pornography viewed by "consenting" adults in a "private" setting, including places outside the home, such as a cinema with admission restricted to adults. (20) Yet as Pinkus suggests, the Miller Court needed to say more about its understanding of "community" because human communities are composed of adults and minors. (21) Even though the litigation in Pinkus raised an important question, the ruling was in at least one way unsatisfactory because Pinkus held that the reference to "community" in the first part of the Miller test does not include children and adolescents (commonly referred to as "minors" when they are taken as a single group). (22)

   One might still defend the rulings in Miller and Pinkus by putting them in a larger context. Five years before deciding Miller, the Supreme Court in Ginsberg v. New York (23) upheld a state law forbidding the sale of pornographic magazines to minors. (24) The Court ruled that the State of New York was permitted to employ "variable" concepts of obscenity, meaning different legal definitions of obscenity for minors and adults. (25)

   Reading Miller and Pinkus with Ginsberg in mind, one should conclude that that the obscenity standard put forth in Miller applies only to adults who are viewing pornography of their own accord and in a private setting. Further support for this interpretation comes from FCC v. Pacifica Foundation, (26) decided five years after Miller. Here the Court ruled that the Federal Communications Commission could have subjected Pacifica Foundation to penalties because of a "patently offensive" radio broadcast aired in the middle of the day (when children were presumably part of the audience), involving indecent words referring to sexual or excretory acts or sexual organs, and audible in both public and private spaces. (27) Pacifica did not involve visual images, but it has been cited in cases involving pornographic films as a way of affirming the legitimacy of a state's interest in sparing minors and unconsenting adults from exposure to pornography that may not be obscene. (28)

   The regulatory framework just sketched--based on the rulings in Ginsberg, Miller, Pinkus, and Pacifica--might strike many persons as "workable" and potentially stable over the long term. Over time, such regulations have been enacted to meet the following purposes: (1) to deny minors access to different kinds of pornography or at least limit their access and exposure to them; (29) (2) to spare unconsenting adults exposure to indecent and obscene pornography (whether they are at home or in public); (30) (3) to keep indecent and obscene stimuli (and not only visual stimuli) out of public space. (31) The notion of "private space" that is found outside the home generates mental images of places that cannot be breached by minors. Outside these private settings, the scope for governmental regulation of pornography will be much greater, as Ginsberg (32) and Pacifica (33) suggest. (34)

   The regulatory framework being described here would give adults much freedom to indulge in pornography in private places, with scarcely any limits in one's home. Nonetheless, the framework requires broad public understanding about the meaning of phrases such as "in private" or "in a private setting." It also requires a readiness on the part of public officials to maintain, through the enforcement of the...