The Pornography Caper
Presidential commissions, as Elizabeth B. Drew once put it in the Atlantic, are often “self-inflicted hotfoots.” The tangled story of the Commission on Obscenity and Pornography serves as a paradigmatic example of the truth of this observation. After documenting that assertion, I shall try to come to grips with the substance of the Report and the data on which it rests. Finally, I want to explore a possible constitutional doctrine that could render moot legislative arguments about what kind of conduct to forbid.
My bias in this essay is that of a lawyer who believes pornography to be a nuisance rather than a menace. Effective legal controls for this nuisance I consider to be a worse nuisance than what they attempt to suppress, which a democratic, open society can ill afford.
The commission owes its existence to the initiative of Senator John McClellan (D., Ark.). He, joined by Senator Karl Mundt (D., S. Dak.) and others, introduced a resolution that found the traffic in obscenity and pornography to be “a matter of national concern.” What John McClellan thinks is a matter of “national concern” clearly becomes just that. He steered his resolution through the Senate Judiciary Committee, through the House, and it became law as P.L. 90-100. This law directed the President to set up an advisory commission whose purpose was: “After a thorough study which shall include a study of the causal relationship of such materials to anti-social behavior, to recommend advisable, appropriate, effective, and constitutional means to deal effectively with such traffic in obscenity and pornography.” The Commission was further directed:
- with the aid of leading constitutional law authorities, to analyze the laws pertaining to the control of obscenity and pornography; and to evaluate and recommend definitions of obscenity and pornography;
- to ascertain the methods employed in the distribution of obscene and pornographic materials and to explore the nature and volume of traffic in such materials;
- to study the effect of obscenity and pornography upon the public, and particularly minors, and its relationship to crime and other antisocial behavior; and
- to recommend such legislative, administrative, or other advisable and appropriate action as the Commission deems necessary to regulate effectively the flow of such traffic, without in any way interfering with constitutional rights.
P.L. 90-100 became law in October 1967 and President Johnson appointed the Commission’s members in January 1968. In July 1968 Congress funded the Commission and extended its tenure to provide two years for its studies.
I have no idea what backstairs maneuvers accompanied the selection of the members. The Commission at its first meeting in July 1968 elected William B. Lockhart as its chairman. Although it is most unusual for a Commission to elect its own chairman, Lockhart was a natural choice. He is dean of the University of Minnesota Law School, and a leading academic authority on obscenity laws. (It may or may not be a coincidence that the White House, on announcing the composition of the Committee in January, stated that Mr. Lockhart would be the chairman.)
The Commission set about its work quietly, eschewing public hearings and proceeding with the help of a carefully selected staff, to commission, carry out, and review the studies that Congress had expected. The first public hint of trouble came in the late fall of 1969 when two members of the Commission—Commissioners Hill and Link—conducted “runaway” public hearings in eight cities, contrary to the Commission’s announced policy. These hearings, whose general tenor was strongly in favor of tightening legal controls, were extensively reported in the press.
As the time for publication of the Report drew close, a number of odd incidents occurred. The first was the publication of what purported to be the Commission’s Report1 which sounded very much like a Birchite document. Many people thought this document a parody. Among lawyers, it was thought to be a hoax perpetrated by law students. Although its provenance is unknown to me, one ought to compare this spurious document with the dissenting views expressed in the genuine report by Commissioners Hill and Link, who had conducted the “runaway” hearings. There is a marked similarity.
Then the text of the Report was prematurely “leaked” to the House Subcommittee on Postal Operations. The leak was made by an unidentified Commission member to Representative Robert Nix (D., Pa.), who on August 11 and 12 conducted hearings before the Subcommittee on the leaked report. The hearings were pretty much given over on the first day to a refutation of the as-yet-unpublished findings of the Commission. The star witness, Professor Victor B. Cline, of the University of Utah—who reappears as the dissenters’ principal expert on the behavioral sciences—said:
This review is limited by the fact that I don’t have most of the original studies which are cited and used as evidence in coming to many of [the Commission’s] conclusions. . . . Despite this, enough details are given and I am acquainted with some of the studies sufficiently to comment on them.
Professor Cline’s sense of grievance is a bit hard to understand, since he was trying to refute an unpublished purloined Report.
President Nixon’s sole appointee to the Commission—Charles H. Keating, Jr., a Cincinnati lawyer and founder of Citizens for Decent Literature—had been warning the President for about eleven months “not only that the pornographers will have taken a giant step toward winning the war but that your administration will receive the blame.” The warning was quickly heeded. Ronald Ziegler, the President’s flack, declared to reporters without being asked: The President has views at variance with those of the Report. Thus, before the Report was even submitted to him, the President dissociated himself from it.
The Associated Press also obtained a “leaked” version of the final report, which then became extensively publicized. As the controversy grew hotter, Commissioner Keating, Nixon’s man on the Commission, filed suit to enjoin publication of the Report on the ground that the Commission had denied him sufficient time to prepare a dissent. He obtained a preliminary injunction. But, finally, Keating and Lockhart agreed that Keating could have until September 29 to file his dissent. Since the Report was scheduled to go to the President and Congress on September 30, had it been delayed beyond that date, it might never have been released. Mr. Keating met his deadline and the Government Printing Office printed just enough copies of the whole Report and the various dissents for the officials immediately involved. I have never seen the GPO Report, nor do I have any expectation of seeing it. Private enterprise rapidly filled the breach.2
Just seventeen days after the Commission’s Report was made public, the Senate rejected it. On October 17, the Senate passed a condemnatory resolution introduced by Senator McClellan by a vote of 60 to 5; and President Nixon, in a statement released at the height of the 1970 campaign, denounced the document. There is no good reason to suppose that the President even glanced at the Report. Thus hundreds of thousands of dollars and thousands of man-hours later, the Commission’s work had become a source of personal pain for many of its members and the occasion for national cries of shame.
What did the report say to outrage the Senate and the President at a time when the political wars were at their hottest? Just this: 1) “Extensive empirical investigation . . . provides no evidence that exposure to or use of explicit sexual materials play a significant role in the causation of social or individual harms such as crime, delinquency, sexual or non-sexual deviancy or severe emotional disturbances.” 2) “Public opinion in America does not support the imposition of legal prohibitions upon the right of adults to read or see explicit sexual materials.” 3) “Therefore, the Commission recommends the repeal of [federal, state, and local] legislation” which prevents adults from getting access to what has previously been labeled “obscene.”
The Commission also recommended that the states should enact legislation preventing the exposure of young persons to pictorial erotica—by which textual material is to be excluded—and prohibiting public displays of pictorial erotica. The Commission recommended that Congress legislate against unsolicited mail advertising. In fact, Congress has already done just that.3 But, of course, these modest legislative proposals have not saved the Commission from attack on the repeal proposals just cited.
The Commission’s Report, whose legislative recommendations take up only twenty-eight pages, is based on four reports prepared by panels of the Commission. These include: (a) a report on traffic and distribution of sexually-oriented materials in the United States; (b) a report on the impact of erotica; (c) a report on positive approaches: the development of healthy attitudes toward sexuality; and (d) a report on legal considerations relating to erotica. I shall comment only on the second panel report. All four consume over 400 pages in the Bantam edition. Another 175 pages are taken up primarily by the dissents of three members of the Commission.
Perhaps the best way of discussing the Commission’s findings is to put them in the context of the bitter and venomously personal attacks of the dissenters. They were Morton A. Hill, S.J., president of Morality in Media, New York; the Rev. Winfrey C. Link, administrator of the McKendree Manor Methodist Retirement Home, Hermitage, Tennessee; and the aforementioned Charles H. Keating, Jr., appointed by the President. These several gentlemen—the dissent of Messrs. Hill and Link is concurred in by Mr. Keating, who then voices a disagreement of his own—open their dissent with the statement that: “The Commission’s majority report is a Magna Carta for the pornographer.” They quickly dispose of the Commission’s empirical evidence with the observation that inquiry into effects is beside the point because the central question is whether and to what extent society may establish and maintain moral standards. I should have thought that the question was not that, but rather how society may do that. Precisely, the question is not (as the dissenters seem to think) a moral question but a functional question asking what laws enforced by what sanctions and involving what costs will enable society (meaning our society) to establish and maintain morals. Unfortunately, neither the Report nor the dissent illuminates that question. As I shall presently show, the Report fails just because it does not illuminate that question. However, since it is hard for the dissenters to keep reiterating their central proposition for 175 pages, they first attack the chairman, Dean Lockhart, and the Commission’s General Counsel, Professor Paul Bender, both of whom they identify as members of the American Civil Liberties Union, whose subversive nature apparently (to the dissenters) requires no comment. They attack the Report of the Legal Panel which had summarized the state of the law with respect to obscenity. One would have to be a legal illiterate to accept the dissenters’ attempt to frame a counter-Legal Report, consisting as it does of a mishmash of headnotes, quotations from legal encyclopedias, and excerpts from Supreme Court opinions (interspersed with ominous comments such as “Justice Fortas is no longer on the Court”).
The Legal Panel Report is uninspired. It is a straight-faced but hopeless attempt to give some intellectual coherence to the Supreme Court’s lucubrations on the subject. As I shall suggest below, this effort was misguided. Yet the Panel Report is as game an effort to summarize the bewildering state of constitutional law on obscenity as I have seen in print.
The most controversial portion of the Commission’s Report is unquestionably the Panel Report on the “Impact of Erotica.” Of the six members of this Panel only one (Dean Lockhart, sitting ex officio) was not a behavioral scientist.4 Although the dissenters had opened their attack by claiming that empirical studies were irrelevant, they here enlisted the support of Professor Cline to mount what is their most effective engagement against the Report. To me, it is odd that this Panel Report neglected to deal with the “aesthetic objections” to erotica (the Report’s own term). Students of literature like George Steiner have dwelt on the pernicious effects of erotica not only on readers but also on the creators of what passes for “literature.”5 The gist of the “aesthetic” objection is that pornography corrupts taste, primarily the taste of those who seek to supply what the consumer wants. While I believe that writers like Steiner are profoundly right, it is hard to see what remedy laws can provide for the evils they discern. The Panel Report would have been strengthened had this been pointed out.
The “behavioral scientists” reached two conclusions from their empirical evidence: 1) Public-opinion does not support legal efforts to prevent adult Americans from reading or seeing whatever they like; 2) it cannot be demonstrated that pornography causes crime or delinquency. Their conclusions are based on a review of the empirical literature, on analysis of crime statistics, and on research commissioned by the Panel.6
The Panel commissioned a very elaborate attitudinal study. This particular document comes down to the facts that (a) only 2 per cent of their interviewees spontaneously mentioned the prevalence of erotica as an important national problem, and that (b) most Americans think that erotica has undesirable effects on people’s behavior, but that (c) when this attitude is more carefully examined it appears that with respect to the respondents’ own experience, socially desirable or neutral effects of exposure to erotica predominate. To give two examples of the variation between people’s perception of the effects of erotica and their own experience the study reports as follows:
|Effect||% who say it has effect||Effect on respondent||Effect on someone known to respondent||Effect on one known|
|Provide info re sex||61%||24%||15%||22%|
|Lead to a breakdown to morals||56%||1%||13%||38%|
They further report that 51 per cent of their sample would “be inclined to favor the availability” of erotica if it were “clearly demonstrated” that such material had no harmful effects while 79 per cent would oppose availability if it were shown that harmful effects occurred. Fifty-one per cent is a pretty slim majority, particularly considering the quoted qualifications.
Finally, the authors of the Panel Report state that people who identify harmful results are more likely to have seen less erotic material recently, to be less educated, older, and more conservative than . . . whom? Than their “counterparts,” we are told, whoever that may be. The complete study, including the ten volumes of Technical Reports, may supplement these data. Yet it is, at best, very poor strategy for a report to be as dogmatic and unsupported as this one appears to be. The attitudinal study that the Panel commissioned is a pretty damp firecracker.
Obviously, the empirical studies of effects are far more important than the public-opinion studies, since the latter fall if the former are weak. Citing Masters’s and Johnson’s Human Sexual Response as demonstrating that it is possible to measure human sexual arousal, the Panel Report moves on to an examination of behavioral responses to erotica. The Panel Report relies exclusively (with one exception) on second-hand studies. By second-hand I mean both people’s asserted recollections of their previous exposure to erotica and their own statements about their arousal when experimentally exposed to erotica. These second-hand studies, which owe nothing to Masters and Johnson, are simply hearsay which the Panel analyzes for many tedious pages. The Commission appears to have sponsored only one study that may justly be called “experimental.” That study sparked a controversy that made headlines.
The experiment, conducted at the University of North Carolina so outraged Congressman Nix that he devoted the second day of his hearings to raking the principal investigator—James L. Howard, assistant professor of psychiatry at the University of North Carolina Medical School—over the coals (at one point he gratuitously observed that had Dr. Howard not volunteered to testify, he would have been subpoenaed). Twenty-three male students had volunteered to participate in this experiment. While I cannot share Congressman Nix’s sense of outrage, I tend to view the experiment as trivial and of doubtful relevance. By hooking up the subjects’ penises to measuring devices (it is not reported whose ingenuity was responsible for devising the hardware, or perhaps, software)7 the principal investigator succeeded in demonstrating that over a three-week period the subjects became satiated with erotica. After a short layoff, their interest returned. Consequently, the study concluded triumphantly that the hypothesized satiation effect was confirmed, as anyone could have told the experimenters. This seems to me a good example of how rigor and triviality are related in empirical behavioral work. One may well conclude that, if the controversy had been foreseen, the Panel would probably not have commissioned this experiment. One may also wonder whether not commissioning it would have been a defeat for “behavioral science.”
The culminating section of the Panel Report on Effects is entitled “Erotica and Antisocial and Criminal Behavior.” This is where the behavioral approach stands or falls: as the Report plainly concedes, people’s attitudes toward erotica depend on whether a harmful effect can be shown to exist. The Report claims that the existing research “provides no substantial basis for the belief that erotic materials constitute a primary or significant cause of the development of character defects or that they operate as a significant determinative factor in causing crime or delinquency.”
As I have previously said, the Panel Report is based on a review of the empirical literature, on an analysis of crime statistics, and on studies that the Panel had commissioned. That remains true of this culminating section of the Panel Report. It is terribly difficult to prove a negative. Burying the reader in a cloud of studies and in statistical analysis only compounds the difficulty. The statistical analysis is flawed because the Panel forgot to define “delinquency.” If delinquency includes conduct that would not be criminal in an adult—like being a wayward child, or a child in need of correction—which the concept usually does include, then I fail to see how any amount of statistical analysis can possibly demonstrate anything whatever about the connection between X (which is undefined) and Y (exposure to erotica).
The studies, of which one comparing a group of convicted rapists with a matched group of non-sex offenders is typical,8 tend to demonstrate almost nothing except that such studies prove nothing. We are told that this study shows:
All subjects were asked at what age they first saw each of fifteen erotic depictions, and mean ages of first exposure were computed for each of the two groups and each of the types of erotica. The data in Table 36 show that the mean age of first exposure of the rapists was one-half a year or more later than that of the matched nonsex offenders in reference to eight of the fifteen items and one-half a year or more earlier in reference to two. The biggest difference between the groups for which nonsex offenders had a mean age of first exposure of 14.95, and rapists a mean age of first exposure of 18.19. Rapists were also found to have a generally later mean age of first exposure to erotica than a nonmatched sample of college students and a lower age than a nonmatched sample of members of men’s clubs.
Who needs it?
After 140 pages of examining “the data,” the Panel Report on the Impact of Erotica finally sputters out with the observation that:
. . . [I]t is obviously not possible, and never would be possible, to state that never on any occasion, under any conditions, did any erotic material ever contribute in any way to the likelihood of any individual committing a sex crime. Indeed, no such statement could be made about any kind of nonerotic material.
Thanks a lot, fellows.
While the behavioral studies, which are the heart of the Effects Panel’s case, prove almost nothing, the dissenters devote many pages to picking holes in the data which likewise prove almost nothing. They muster much material to support their assertion that erotica does cause criminal behavior. This material is worthless: it consists almost exclusively of anecdotal reports by police. While the proponents of the majority position have not succeeded in proving their case, the dissenters may have inadvertently strengthened the case by resorting to halftruths, distortions, and, to paraphrase the old story about statistics, “damned lies.” The most clearly disgusting passage in the entire report comes when Mr. Keating in his separate dissent prints the names and addresses of the leading distributors of pornography.9 Mr. Keating is plainly guilty of aiding and abetting the distribution of pornography.
The predominantly behavioral tone of the Report strikes me as a disservice to the position that the majority espouses. Given the fact that the behavioral sciences have so little to say about the connection between erotica and people’s behavior, a far better ploy, in my judgment, would have been to acknowledge this deficiency and simply to state the recommendations without attempting to justify them as resting on anything but the liberal, humane, and pluralistic values that presumably motivated the majority of the Commission. That course would have given the dissenters much less to snipe at and would have cost the Commission much less in money, time, and, finally, credibility. By relying so heavily and so misguidedly on the behavioral sciences, the Commission’s Report suffers terribly in readability. The effort may have been very costly in all the respects just stated.
The violence of the Presidential and Congressional reaction, provoked by the Report’s behavioral tone, guarantees that it will be consigned to at least temporary oblivion. At this stage in the nation’s history there is no chance whatever that the recommendations of the Commission will be enacted into law. The contrary may very well happen. I would bet that we are quite likely to see a spate of even tougher laws passed against pornography than we now have, fueled at least in part by the controversy over the Report.
That prospect does not dismay me, since there is no reason to suppose that we are willing to support a vigorous campaign of law-enforcement against pornography. Such a campaign would involve costs in money, manpower, and invasions of privacy that we as a society are unwilling to pay. Passing laws costs a great deal. Given the dimensions of our present crime problem, rhetoric (passing tough laws) is the administration’s only weapon.
I think that our present use of the First Amendment as a constitutional means of limiting the effect of anti-pornography laws is misguided. The Supreme Court has got itself into a box; it must either function as a Supreme Board of Censors and read every allegedly dirty book and watch every allegedly dirty movie that is attacked before it or give up the unequal struggle. Potter Stewart’s famous quip that he doesn’t know the meaning of hard-core pornography but that he knows it when he sees it is a perfect illustration of the Court’s dilemma. In the end, if we stick with the First Amendment I would guess that the pressure of their other business will compel the Supreme Court to get out of the obscenity business and leave it to the local boards of censorship. As for reinterpreting the First Amendment, that seems naive. First, the Supreme Court is so heavily mired in its old decisions. (In Roth v. United States, 354 U.S. 476 , the Court held that “obscenity is not within the area of constitutionally protected speech or press.” This decision and its numerous progeny placed the Court in the dilemma to which I have referred. While the Court can distinguish Roth, how can it overrule that decision and still rely on the First Amendment?) Second, the Black-Douglas absolutist position that freedom of speech means just that is indefensible: libel and incitement to commit a crime, to say nothing of conspiracy, demonstrate that “speech is speech” can never mean that the First Amendment protects every form of speech.
In place of the First Amendment, I would suggest that the opponents of anti-pornography laws should rely instead on the doctrine of “substantive due process,” which means simply that legislation which lacks a rational basis does not pass constitutional muster. “Substantive due process” is a doctrine that has been in bad odor for at least thirty-five years. It was used to strike down economic regulatory legislation. Holmes and Brandeis had labeled the doctrine as an effort to read the economic predilections of justices like the Four Horsemen (MacReynolds, Van Devanter, Sutherland, and Butler) into the Constitution. And so it was. The effect of the great authority of Holmes and Brandeis, plus the effects of the changing views of constitutional law that their views induced the law schools to adopt, resulted in the present generation of judges and legal scholars becoming allergic to “substantive due process.”10 The reluctance strikes me as being counter-productive for the liberal spirit in 1971. After all, it is the choice of minorities to be pluralistic rather than economic regulation which is at stake when the state uses the ultimate weapon of the criminal sanction to suppress such things as pornography. The “Brandeis brief” (which Brandeis developed before he took his seat on the Supreme Court) was originally a weapon against “substantive due process.” The Brandeis brief was originally used to marshal economic facts to sustain economic regulatory legislation by demonstrating its rationality, thus undermining the old-fashioned substantive due process. The same technique, I believe, can be used to show that it is irrational to enforce morals legislation that attempts to suppress consensual transactions, like the sale of pornography. By mustering economic facts that demonstrate what a heavy price we pay in money and human resources, costs which could be allocated to more pressing social needs than the chimerical benefits of suppressing pornography, courts may eventually be brought to view morals legislation as irrational and, therefore, unconstitutional.
So far, the attack on morals legislation has had some limited successes11 without the benefit of a Brandeis brief. A variety of constitutional pegs exists: the Religion Clause of the First Amendment,12 the “cruel and unusual punishment” clause of the Eighth Amendment,13 the Ninth Amendment.14 But these ad hoc constitutional pegs are not good enough. The Supreme Court badly needs a unifying theory if the attack is to be truly successful. “Substantive due process” may well be that theory, if the Supreme Court can ever be led to overcome its “allergy” to it. Doctrinal purity—not producing ad hoc, result-oriented decisions—ought to be important to the Supreme Court. Doctrinal purity means essentially intellectual honesty. That seems to me to weigh the scales quite heavily in favor of “substantive due process.”
However the Supreme Court may resolve the “substantive due process” problem, I suspect that it is to courts rather than to legislatures that we must look to begin the process of reforming our substantive criminal law to bring our commitments into balance with our capacities.
1 The Obscenity Report, 130 pp., $5.95, distributed by Stein and Day. The copyright of this volume is held by Stein and Day, and no indication of authorship is ever given. Stein and Day obviously owe us an explanation.
2 The Report of the Commission on Obscenity and Pornography, Bantam Books (paperback), 720 pp., .$1.65; Random House (hardcover edition), $10.00.
3 The Senate, on September 23, 1970, passed a bill providing specific language for labeling sexually-oriented advertising sent through the mails and permitting recipients of such mail to return it unopened at the sender's expense. A similar bill had previously been passed by the House. After the two bills have their language reconciled, the completed bill will be sent to the President for his signature.
4 The Panel chairman, Otto N. Larson, is professor of sociology at the University of Washington; G. William Jones teaches communications at Southern Methodist University; Joseph T. Klapper is director of social research for CBS; Morris A. Lipton teaches psychiatry and is director of research development at the University of North Carolina; Marvin E. Wolfgang is director of the Center of Criminological Research at the University of Pennsylvania.
5 See Steiner, “Night Words: High Pornography and Human Privacy,” reprinted in Hughes (ed.), Perspectives on Pornography. The essays by George P. Elliott and Ernest van den Haag in the same volume are marked by sensitivity to the same values as Steiner's.
6 The studies on which these conclusions rest are contained in the ten-volume Technical Reports of the Commission, available from the Government Printing Office. While I have not yet tried to obtain these volumes, I won't conceal from the reader my conclusion that the game isn't worth the candle. While perusal of the Technical Report volumes might alter this conclusion, I leave to intending Ph.D.'s in sociology the task of examining the “underlying data.”
7 The experiment also measured urinary acid phosphatase, and heart rate. Interest in erotica was measured by observing the time spent by the subjects in examining erotic material. In addition, the subjects each submitted to a variety of psychological tests and to three psychiatric interviews.
8 My assertion that this study is typical should be checked against the Panel Report in the light of my bias that researoh is the opiate of behavioral scientists.
9 Let the interested reader find them himself.
10 The term “allergy” as referring to substantive due process was first used by Justice White, dissenting in Robinson v. California, 370 U.S. 660, 689 (1962) .
11 Stanley v. Georgia, 394 U.S. 557 (1969) (prohibiting making the mere private possession of pornography criminal); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating statute making the prescription of contraceptives illegal); People v. Belous, 80 Cal. Rptr. 354 (1969) (invalidating anti-abortion statute).
12 As Professor Louis Henkin has pointed out in a muchcited article, “Morals and the Constitution: The Sin of Obscenity,” Columbia Law Review, LXIII, 391 (1963), among the constitutional clauses that may be mustered in aid of the battle is the Religion Clause of the First Amendment.
13 See Robinson v. California, 370 U.S. 660 (1962) .
14 Cited, inter alia, in support of the holding in Griswold v. Connecticut, 381 U.S. 479 (1965).