PORNOGRAPHY REVISITED: WHERE TO DRAW THE LINE

Manhattan newsstands are so crowded with displays of Call Girl, Gay Party, Ball and Desire that it is sometimes the New York Times that is sold under the counter. The situation is similar in many big cities. Detroit newsstands even have dildos and whips for sale, bestselling books vie with each other in sexual explicitness and vulgarity and there are no off limits at all in the theater. Around Times Square, exhibitions of simulated intercourse can be seen afternoons and evenings for $5 and up. Skin flicks and their ilk, which used to be limited to a few hundred city theaters, are now shown in about 2,000 moviehouses, many of them in suburbs and small towns, while the criteria by which commercial films are rated are flickering rapidly skinward. What was once R is now GP, and what was X only a year ago is now R. As such ratings and audience thresholds change, so does the borderline of legal obscenity, which is partially defined by "contemporary community standards" that are constantly getting lower.

The national Commission on Obscenity and Pornography recommended--for a variety of reasons--the repeal of dozens of anti-obscenity laws. Judging by the violent reactions that the report provoked, its recommendations are not likely to be widely adopted; on the contrary, signs of a new restrictive mood toward pornography have begun to appear. The publishers of an explicitly illustrated edition of the pornography commission's report itself were indicted by grand juries in Dallas and San Diego. The New York City Criminal Court convicted the editor and publisher of Screw, the nation's No. 1 underground sex tabloid, of publishing obscenity. In San Francisco, where everything conceivable has been seen for several years, the D.A. recently got convictions against three porno film-house proprietors, one of them for showing a movie in which a woman had intercourse with a dog, a stallion and a hog. The Supreme Court split 4 to 4 in a decision on the obscenity of the film / Am Curious (Yellow), which had the effect of upholding the ban on the film in Maryland. Although legal sophisticates realized that this was due to the abstention of Justice William Douglas, some of the more censorious nevertheless took heart.

Meanwhile, a new round of discussion has opened, much of it in favor of some sort of censorship.

QUESTION 1: DOES PORNOGRAPHY REALLY DO ANYONE ANY HARM?

The liberal position, of course, is that "no girl has ever been seduced by a book." That statement is erroneous, according to Poet-Librarian Felix Pollak--or at least he hopes it is: "For the saying doesn't do the cause of literature any good, or the intellectual cause in general. If one denies the power of the word to do evil, one denies the power of the word to do good. In effect, one denies the power of the word. I prefer the healthy fear and awe of the written and spoken word, evidenced by censorious zealots, to the wishy-washy neutralism of the liberalist anti-censors."

But how can one prove the evil effects of words or pictures? Never had there been such a concerted effort to answer this question as was made by the pornography commission with its $2,000,000 budget. In one study that became notorious, measuring devices were attached to 23 penises while the owners were exposed day after day to erotica. The resulting data proved only what one might suspect: that men can become satiated. According to the majority report, pornography cannot be proved to cause crime, sexual deviancy or severe emotional disturbances. This is a conclusion somewhat at odds with that reached by the national Commission on the Causes and Prevention of Violence, whose behavioral studies indicated that exposure to violence does cause harm. The violence commission therefore recommended more restraint, while the pornography commission recommended less.

A dispassionate look at the tangle is provided by Harvard Government Professor James Q. Wilson in the quarterly The Public Interest. Wilson found the obscenity studies "unexceptionable within their limited framework." But, he said, "one cannot simulate in the laboratory the existence or nonexistence of a lifelong exposure to or preoccupation with obscenity, any more than one can simulate a lifelong exposure to racist or radical opinions." His major thesis is that proof of harm is largely beside the point. Even if behavioral studies could not prove that individual Negroes are harmed by being denied access to public facilities, reasons Wilson, he would still want them to have that access. Violence and obscenity are moral issues, he believes, and judgments about them must rest on political and philosophical, not utilitarian considerations.

QUESTION 2: DOES PORNOGRAPHY HAVE A DELETERIOUS EFFECT UPON THE MORAL CLIMATE AS A WHOLE AND ON VALUES GENERALLY?

A highly theoretical argument for censorship is made by University of Toronto Government Professor Walter Berns. Democracy, more than any other form of government, requires self-restraint by its citizens, he maintains, and self-restraint can be partially achieved by laws governing public amusements. Pornography makes people shameless, he believes: "Those who are without shame will be unruly and unrulable; having lost the ability to restrain themselves by obeying the rules they collectively give themselves, they will have to be ruled by others." Therefore pornography leads to tyranny, Berns concludes.

Whatever else it does or does not do, pornography makes strange bedfellows. New Left Philosopher Herbert Marcuse is as censorious of it as is Berns. While Berns fears that pornography makes men unrulable, however, Marcuse thinks that it makes them tame. Marcuse objects to sexual permissiveness because he thinks it is a safety valve that keeps people from exploding and breaking up the System. To him, the relaxation of sexual taboos is a sort of capitalist plot. "Desub-limation," as he calls it, is therefore repressive.

Many observers are most concerned about the sadistic component of much current pornography. "No civilization, with the possible exception of the Aztec, could produce an art whose sexual ferocity would rival that of the West," according to Mexican Poet-Diplomat Octavio Paz. In Western pornography, "death spurs pleasures and rules over life. From Sade to the Story of O, eroticism is a funeral chant or a sinister pantomime." Reading about sadism can have a cumulative effect, according to Psychoanalyst Ernest van den Haag. Der Stunner, a Hitlerite journal that mixed anti-Semitism and sex, contributed to the general atmosphere that made it possible to slaughter Jews, Van den Haag believes. Similarly, he says, today's sadistic pornography contributes to a general atmosphere in which sadism becomes generally permissible.

There is, however, the question of what comes first. Maybe pornography circulates freely because public standards have already changed; maybe people read about sadism because they are already sadistic. Political Scientist Wilson Carey McWilliams argues this point well: "Degeneracy becomes socially visible, emerging from underground, only when it has reason to expect a welcome. Certainly this is the case in relation to sexuality. Our verbal sexual morals had become nothing more than cant some time ago. Worse, they were a form of hypocrisy which discouraged respect for law."

QUESTION 3: DOES THE FIRST AMENDMENT, WHICH GUARANTEES FREE SPEECH, PROTECT OBSCENITY?

Not until 115 years after the first federal obscenity law was passed did the Supreme Court address itself directly to the constitutionality of such laws. Then, in the Roth case of 1957, it held them, in general, to be constitutional. "Obscenity is not within the area of constitutionally protected speech or press," the majority decided. And what is obscenity? A three-part test soon evolved: 1) the dominant theme of the material taken as a whole must appeal to a prurient interest in sex; 2) the material must be patently offensive because it affronts contemporary community standards; 3) the material must be utterly without redeeming social value.

Whereas the Roth decision generally upheld anti-obscenity laws, the succeeding interpretations of it usually knocked them down. They have, for the moment at least, virtually abolished literary censorship. A further liberalizing decision was made two years ago in Stanley v. Georgia. The court concluded that obscenity, when it is read or viewed at home, is protected by the Constitution. This decision, it is now argued, implies the right to buy or receive obscenity. In short, decision after decision has opened wider the umbrella of the First Amendment.

However, at the same time, a few cases snapped that umbrella shut again--under specific circumstances. One involved sales to minors. In Ginsberg v. New York, the court held that states may make it a crime to sell "to minors under 17 years of age material defined to be obscene to them whether or not it would be obscene to adults." The court's reasoning was that "the well-being of its children is a subject within the state's constitutional power to regulate." And Ginzburg v. United States makes it possible to prosecute publishers for "pandering to the widespread weakness for titillation by pornography," even if the obscenity of the material being pandered is in doubt.

Thus the law on obscenity is bewildering, even to many lawyers, though some are gamer than others in defending it. "The landmark case of Roth," wrote Earl Warren Jr. recently, "is still valuable, and in fact has gained viability with each succeeding interpretation, even though it now bears little resemblance to what we originally thought it to be."

QUESTION 4: CAN OBSCENITY LAWS BE ENFORCED?

Stanford Law Professor Herbert Packer declares flatly that a vigorous campaign of law enforcement against pornography "would involve costs in money, manpower and invasions of privacy that we as a society are unwilling to pay.". One of the pornography commission's best arguments for repealing many existing laws was that they have not worked. The trouble begins with definitions. Justice Potter Stewart says that he cannot define hard-core pornography, but he knows it when he sees it. This is understandable, but is scarcely a practical basis for criminal indictments.

Nor has the courts' three-part test been much help. How big is the community? A town, a state, the nation? What is prurient interest? What about "utterly without redeeming social importance"? Even if something is of value only to masochists, asks Justice Douglas, how can it be said to be utterly without social importance? Others argue, in effect, that no law is perfect; society must do the best it can. "The Sherman antitrust law forbids monopolies," says Political Scientist Reo Christenson. "What is a monopoly? What is an unfair trade practice? When is guilt proved beyond a reasonable doubt? Those indignant over the lack of specificity in obscenity laws are quite complacent about vagueness in laws they approve."

QUESTION 5: WHAT CAN BE DONE ABOUT PORNOGRAPHY?

Where should the line be drawn against pornography, or should it be drawn at all? Given the narrow scope left by the courts to the legal definition of obscenity, strict laws banning pornographic material from adults will not stand up in court unless the Supreme Court eventually changes its position. In its eyes, the dangers of inhibiting freedom of expression are far greater than those presented by pornography. Beset as we are so suddenly with mountains of pornographic trash and with well-meaning arguments for doing away with it all, it is easy to forget the crimes against political freedom, science and the arts that have been committed in the name of morality. Books by Aristophanes, Defoe, Rousseau and Voltaire have been seized by U.S. customs, and Hemingway, Dreiser and Sinclair Lewis were once banned in Boston. Such past errors certainly do not constitute a conclusive argument against censorship, but they do underline one fact: no apparatus of censorship has ever been devised, or probably can be devised, subtle enough to assure the freedom of the arts or of ideas. Nor does the new freedom necessarily mean that the wave of smut will further engulf the nation. Denmark's experiment in legalizing pornography, for instance, by all accounts has resulted in a decline of the Danes' own interest in it, as well as in the number of reported minor crimes like exhibitionism.

It seems wrong to keep pornography from adults who want it; certainly the attempt is also impractical and wasteful of time, money and effort. But this does not mean that nothing at all should be done. If some have a right to pornography, others have an equal right not to have it foisted on them. The New York State legislature last week passed a law that, if signed by the Governor, ought soon to clamp down on Times Square. This kind of regulation would not put pornography back under the counter but it would at least remove it from the shop windows and posters. As for obscene mail, another unpleasant invasion of privacy, 500,000 orders have already been received by the Post Office to block specific advertising material, and 15,000 requests a week are now coming in to stop all sexually oriented ads, under a new law that went into effect Feb. 1.

Equally important, there are legal, enforceable ways of keeping pornography away from minors --those under 18, 17, or possibly 16, whatever age each community decides--and in fact the pornography commission drafted sample legislation for the states'. Logically, of course, if pornography cannot be proved to be bad for anyone, there is no more reason to protect minors from it than to protect adults. But there are strong emotional and cultural arguments for doing so. In order to be effective, however, new laws must be specific.

Any regulation at all is anathema to some civil libertarians, who have a respectable and logical position. It was easier to agree with them when pornography was young and reasonably clean--for instance, back in 1949, when Judge Curtis Bok inveighed against censorship. "I should prefer that my own three daughters meet the facts of life in my own library than behind a neighbor's barn," he wrote. But with pornography what it is today, parents may wonder whether their daughters are not actually better off behind the barn than in the library or at the movies. Even liberal Americans may want to set firmer limits on what their daughters--and sons--will be able to see and read. This should be possible without otherwise blocking the free traffic of ideas.

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