All Commentary
Sunday, September 1, 1996

Obscenity: The Case for a Free Market in Free Speech

Government Censorship Makes Children of Us All

Mr. Harris, [email protected], is the news librarian for a major daily newspaper in Alabama.

Despite the unambiguous language of the First Amendment, speech—of all kinds—has been regulated by government—at all levels—throughout the history of the United States. The first federal attempt to circumvent the First Amendment’s prohibition of laws “abridging the freedom of speech, or of the press” was the Sedition Act of 1798, which, among other things, made criminal the utterance or publication of any false, scandalous, and malicious “writing or writings against the government of the United States, or either house of Congress of the United States, or the President . . . , with the intent to defame . . . , or to bring them, or either of them, into contempt or disrepute; . . .” The government’s more recent attempts to control speech have included the Children’s Television Act of 1990,[1] and various content-related provisions of this year’s Telecommunications Act.

Many, if not most, of these speech restrictions have been struck down by the courts—particularly restrictions upon expressly political speech (e.g., the Sedition Act, which the Supreme Court declared unconstitutional in 1964—long after it expired of its own accord). Nonpolitical speech, on the other hand, has had to struggle for respectability.

Works of fiction have been a favorite target of censors. A cursory reading of Anne Haight and Chandler Grannis’s Banned Books: 387 B.C. to 1978 A.D. reveals that such authors as Oscar Wilde, H.G. Wells, and Sinclair Lewis all had works that bore the infamous label “banned in Boston.”[2] Today, cultural traditionalists get upset when the works of such authors are absent from high school curriculum.

The expressed purpose of art censors generally has been to protect public morality. In particular, censors have tended to object to anything with sexual content. Hence, all kinds of literature from Fanny Hill to the works of D.H. Lawrence to Henry Miller’s Tropic of Cancer have come under fire for depicting sexual relations in ways that offend the sensibilities of one group or another.

Eventually, however, a series of Supreme Court rulings began to extend First Amendment protections to most works with strong sexual content. The commonly cited distinction between “indecent” and “obscene” speech had its roots in the 1957 Roth v. United States decision, which declared that obscenity is not constitutionally protected. Along with the 1973 decision in the case of Miller v. California, Roth helped establish the three-prong test presently used to draw the line between protected but indecent speech and allegedly nonprotected obscene speech.

According to the Miller decision, a work is obscene if (1) “the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest . . . ,” (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law,” and (3) “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

While the Miller decision tries to limit the context in which censorship is a constitutionally valid practice, the very standards Miller sets up are largely, if not entirely, subjective. Indeed, the “community standards” argument itself is a half-hearted acknowledgment that artistic value admits no easy, objective criteria. The end result of Miller has been censorship run amok.[3]

The First Amendment

There are, of course, those legal scholars who are unworried by the prospect of “censorship run amok.” Ignoring the text of the Constitution itself and instead relying upon the doctrine of “original intent,” jurists such as the early Robert Bork claim that the First Amendment protects only political speech. All other speech potentially is fair game.

If original intent is a valid form of constitutional interpretation, there is something to be said for the legitimacy of many forms of governmental censorship. After all, in the newly free United States of the time of the Constitutional Convention and the ensuing ratification debates, political matters had been, naturally, first and foremost in the public mind. But is original intent valid?

There is ample evidence to suggest that at least some of America’s founders would have wanted free speech protection extended even to artistic works deemed obscene under the “community standards” of the Colonial era. As Nat Hentoff notes, “James Madison, the principal creator of the First Amendment, and a very studious man, was also known for his considerable reservoir of Rabelaisian anecdotes.” He continues:


In the libraries of many of the framers, as well as those of the other colonists, were such erotic classics of the time—some of them likely to get their sellers busted two centuries later—as John Cleland’s Memoirs of a Woman of Pleasure, Ovid’s Art of Love, the stories of Rabelais, and especially two sexually graphic works by Framer Benjamin Franklin, Advice to a Young Man on Choosing a Mistress and Polly Baker. (Thomas Jefferson wrote approvingly of Polly Baker.)[4]

At about the same time that the Bill of Rights was being ratified in the United States, the Marquis de Sade was having his first works banned in France. Clearly, if the Framers intended government to regulate offensive speech, they could have said so. Nevertheless, at the time of the founding, only Puritan Massachusetts had any obscenity statutes at all, and that state’s one law dealt with religious obscenity—i.e., blasphemy—not sexual obscenity.[5]

Ultimately, it is perhaps best to assume that the First Amendment means what it says: Congress (and now, thanks to the Fourteenth Amendment, government in general) may make no law abridging the freedom of speech, or of the press. Still, such a conclusion is merely a legal defense of absolute free speech. It doesn’t touch the issue of what our attitude toward free speech ought to be.

Are there practical and moral reasons for opposition to the censorship of obscenity? The Supreme Court’s decisions in the Roth and Miller cases were partial concessions to the fact that different people have different levels of tolerance when it comes to depictions of sexual acts and situations. Rather than attempt to lay down an objective standard for obscenity, the Court left the authority to judge in the hands of “communities.” Thus, the Court recognized no collective, national standard for obscenity.

Yet local communities are made up of disparate individuals as well. If the Supreme Court should not force its artistic standards upon a diverse citizenry, why should mayors and city councilmen—or perhaps special censorship boards—have the ability to do so?

The community standard rule enshrines in law a purely arbitrary majoritarianism. Thus, one majority in one community (or their elected representatives) can enact one standard, while a majority next door (or across the country) can enact an entirely different standard. The result is a legal practice that violates two cornerstones of justice: the Rule of Law and equality before the law.

While the concepts of a Rule of Law and of equality under the law are different—the Rule of Law is a much richer concept—the first subsumes the second. The Rule of Law in a general sense is violated, as F. A. Hayek notes, whenever arbitrariness enters into the equation. Only when “the rule is laid down in ignorance of the particular case and no man’s will decides the coercion used to enforce it [is] the law . . . not arbitrary.”[6] Yet, because the community standard rationale for censorship proceeds without a prior definition of what is or is not obscene, it cannot help but be arbitrary. Not only do standards change over time, but the enforcement of the community-based censorship rule also will differ depending upon the standards of the individual censors. (In practice, the individual standards in question usually are those of the police who initiate the “bust,” the district attorneys who decide whether or not to prosecute, and the people serving as jurors at the time.)

Not only is the definition of what is obscene arbitrary, but the definition of what makes up the community whose standards supposedly count is arbitrary as well. Is, after all, a community a city or town? Is it a county or parish? Is it a state? The only thing the Supreme Court has made clear is that the community is not the United States—a rather odd notion since the First Amendment is a law of the American community, insofar as the Amendment governs the entire nation.

Equality under the law in a narrow sense fares no better than does the Rule of Law generally. Hayek explains that equality under the law is the best protection of general liberty:

The chief safeguard is that the rules must apply to those who lay them down and those who apply them—that is, to the government as well as the governed—and nobody has the power to grant exceptions. If all that is prohibited and enjoined is prohibited and enjoined for all without exception . . . and if even authority has no special powers except that of enforcing the law, little that anybody may reasonably wish to do is likely to be prohibited.[7]

In short, equality before the law is the surest protection against political tyranny because it subjects the rulers to the law as much as it subjects the ruled. Thus, one can easily see why legal equality is a valued part of the American legal tradition. Yet censorship blatantly violates the principle of legal equality in a way no other type of law enforcement can, for at least the censors themselves must view the material that is allegedly unfit for viewing.

First, Do No Harm

The three-prong test the Supreme Court laid down in its vague attempt to define obscenity includes an exemption protecting some works from censorship. To be obscene, a “work, taken as a whole, [must lack] serious literary, artistic, political or scientific value.” The Supreme Court’s 1987 Pope v. Illinois decision modifies this test somewhat, substituting a “reasonable person” standard for the community standard. “But again,” as Clint Bolick notes, “the Court’s test inevitably will substitute a particular value judgment—whether of a judge, state legislature, jury, or community—for the judgment the First Amendment entrusts to each individual.”[8] Bolick might also add that the reasonable-man test places judges and juries in the absurd position of playing art and literary critics, scientists, and philosophers. Moreover, “reasonable person” remains as ill-defined as does obscenity.

Nevertheless, one wonders why artistic (or political, or scientific) merit matters at all. Although people may joke about doing so, no one really advocates censoring a work because it lacks artistic merit. The reason for censorship—allegedly—is to protect an unsuspecting public and its children (and perhaps the mentally incompetent) from harm—principally, moral corruption. Yet a work can have artistic (or other) merit while still being just as likely to corrupt impressionable minds as is any given artless effort. The aforementioned Marquis de Sade probably is unrivaled in his ability to offend unsuspecting sensibilities, yet his works contain philosophical insights (whatever their merit) that influenced artists and intellectuals from Nietzsche to D.H. Lawrence. So, why spare dangerously explicit works just because they have some value in the eyes of an abstract “reasonable man”?

The Supreme Court, however, rejects the idea of censoring messages that, unlike yelling fire in a crowded theater (in the absence of a fire, of course), do not pose a clear and present danger. Indeed, even the rights of the most outrageous proponents of the most dangerous political ideas are seldom if ever questioned.

When certain talk-radio conspiracy theorists came under fire for allegedly provoking last year’s terrorist bombing in Oklahoma City, they were simply criticized. Never were they threatened with censorship.

Only sex—and to a lesser but growing extent, violence—in art is deemed worthy of censorship on the basis of purported harm. This is true even though the demonstrable harm of certain ill-founded political ideas (e.g., Marxism and fascism) has been far greater than any amount of harm ever attributed to sexually explicit material.

Of course, one might object that obscene material can be censored because sex simply is not as important as politics. If government censors unpopular political speech, the result is tyranny without the possibility of dissent. Even if sexual speech is outlawed, however, dissidents can still talk about the political injustice of censorship.

Furthermore, the potential censor might object that sexually explicit materials that contain some educational value are fine, while those that are just “for fun” are not. (Indeed, the Supreme Court’s test recognizes this possibility.) This objection, however, is self-defeating. Sexual explicitness can arouse regardless of context, and if sexual arousal is somehow intrinsically harmful to the public’s moral character, how does context matter? Indeed, if the public outcry over televised condom television commercials and some forms of sex education is any indication, most potential censors are uninterested in purported informational merit.

Finally, one could propose some sort of utilitarian cost/benefit analysis to attempt to determine the trade-offs between the good and the harm brought about by sexually explicit displays. Yet how such a calculus would be performed is hardly clear. The tradeoffs seem impossible to calculate because the requisite data exist only as the subjective evaluations of diverse individuals. The contention, after all, that we ought to perform such an analysis assumes that we can.

Even the question of whether or not any particular sexually obscene depiction is harmful admits no easy answers. Such questions are ultimately moral, and moral inquiries must include all available information.

Making Moral Judgments

How do we, as a society, know what is or is not obscene? First we must know how we know before we can even begin to draw moral distinctions. In the case of obscenity, we must know something about obscenity; we must be able to study examples of materials that others before us have deemed obscene.

The proposition that obscenity is immoral to begin with depends upon an intimate knowledge of obscenity; it depends upon freedom of speech and expression. It is hardly surprising that the anti-pornography works of Catherine MacKinnon and Andrea Dworkin are filled with the very obscenities they condemn. Evidence is needed to present a case: when one U.S. senator fought to enact the Internet indecency provisions of the Telecommunications Bill, he used a blue spiral notebook filled with “indecent” photographs in order to gain the support of his colleagues.

If human beings are to be fully realized moral agents, they must be free to make moral decisions on the basis of all available evidence. To deprive adults of the ability to make their own judgments is to turn the government into a nanny state and reduce adults to the moral equivalents of children.

If obscenity is evil, it can be declared evil without its being made illegal. If obscenity is illegal, however, law-abiding citizens will be unable to make their own judgments. Instead, they will be like the parishioners of medieval churches: illiterate, without their own copy of text to interpret and discuss with others—and forced to rely upon blind faith in authority.

Saving Children Through Market Forces

Children, unlike adults, are not full moral agents. Rather they are in the process of becoming, principally through parental instruction, such agents. Do not parents have an obvious interest in seeing that their children’s impressionable minds are shielded, at least for a time, from harmful influences?

Parents certainly have a responsibility to try at least to pass on their values. Fortunately, it is quite possible for parents to protect their children without government help—if parents are so inclined.

Cable television companies provide special “lock boxes” that, with the turn of a key, can black out channels parents wish their children not to view. Turn a key, and the problem is solved.

What about record and video stores allowing minors to rent or purchase indecent material? A responsible parent can simply return the offensive material for a refund and then punish the child for having done something wrong. The object of parenting, after all, is to instill values in one’s children, not in store clerks.

In the early 1990s, local authorities brought charges against a comic-book store in Florida for selling a “mature readers” comic, published by an imprint of DC Comics, to a 14-year-old. The child in question, however, was accompanied by his mother—who apparently did not bother to pay any attention to her child’s purchase. The judge ruled in favor of the store owner.

Of course, most parents are more responsible, and responsible parents find the free market quite willing to accommodate their child-rearing decisions. The Internet, for example, is a new and rapidly growing institution. Yet smart entrepreneurs are already latching onto the profit potential to be found in marketing Internet indecency filters.

Television, on the other hand, presents other challenges. The U.S. Congress has proposed the mandatory installation of “V- chips” in all new television sets. Parents could program these chips to block out programming preceded by an electronic trigger signal indicating that a program contains objectionable material. It is difficult to see how such a system would function, however, without the government ultimately deciding which kinds of programs merit what kinds of ratings.

Fortunately, the freer telecommunications becomes, the more non-governmental options parents have. As George Gilder—hardly a defender of “smut”—has noted, the proliferation of television channels will result in less broadcasting and more narrowcasting.[9] Deregulation of the electronic media has caused the number of channels to skyrocket. Where once only three networks tried to reach the lowest common denominator, now hundreds of specialized channels aim at science fiction enthusiasts, history buffs, world travelers, country music fans, people who want their MTV, and people who pray for their EWTN. Channel proliferation means that material parents are likely to find objectionable (programs on, say, MTV or the Playboy Channel), will be confined to a few distinct channels for which parents can either refuse to pay, or that they can block out with existing technology.

And if technology is not enough, individuals can exert pressure on businesses even without the coercive power of government. Firms conscious of the bottom line are in no hurry to offend large numbers of their customers. When the film “Showgirls” was released in the United States, it was absent from a great number of theaters, not because of censorship, but because of public outcry against the film. Theater owners simply did not want the hassle of angry demonstrators.

No system is perfect. Young boys, as always, hide away with dirty magazines irrespective of whether or not there is censorship in force. But the free market—not government censorship—is providing concerned parents with answers. The market treats adults as adults and allows parents to treat children as children. Censorship, however, allows the government to make children of us all.

1.   See my “Children’s Television Shouldn’t Be Regulated,” The Freeman (January 1991), pp. 29-30.

2.   Ann Lyon Haight and Chandler B. Grannis, Banned Books: 387 B.C. to 1978 A.D. Fourth Edition (New York: R.R. Bowker Company, 1978).

3.   Censorship in Alabama, for instance, has gotten so out of hand that in March of this year the state attorney general’s office was forced to dismiss charges against 32 “pornography peddlers” because the office lacked the resources to prosecute all the cases. Some 700 other obscenity cases, in one county alone, were settled for similar reasons.

4.   Nat Hentoff, Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York: Harper Collins, 1992), p. 317.

5.   Laurence Tribe quoted in Hentoff, ibid.

6.   Friedrich A. Hayek, The Constitution of Liberty (Chicago: The University of Chicago Press, 1960), p. 153.

7.   Hayek, op.cit., p. 155.

8.   Clint Bolick, Grassroots Tyranny: The Limits of Federalism (Washington, D.C.: Cato Institute, 1993), pp. 127-128.

9.   George Gilder, Life After Television (New York: Norton, 1992).