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The First Amendment and The New Anti-Pornography Statutes

Published online by Cambridge University Press:  12 May 2020

Joel B. Grossman
Joel B. Grossman*
Affiliation:
University of Wisconsin
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Extract

This essay seeks, in a very preliminary way, to explore the constitutional ramifications of a new wave of laws designed to combat pornography. Pornography is not new, of course; and neither are laws designed to curtail it. It has long been prohibited by federal and state statutes. The first state obscenity law was passed in Vermont in 1821, and the first federal statute, which prohibited the importation of obscene materials such as “French post cards,” was enacted in 1842. As early as 1931, in Near v. Minnesota, the Supreme Court announced that obscenity was not entitled to constitutional protection under the First Amendment.

What has changed is the economics of the sex industry, the demography of its constituency, and the nature of the materials themselves. Pornography today is flourishing as never before; by some estimates it is a $7 billion industry.

Type
Research Article
Information
News for Teachers of Political Science , Volume 45 , Spring 1985 , pp. 16 - 21
Copyright
Copyright © American Political Science Association 1985

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References

Notes

1. Near v. Minnesota, 283 U.S. 697 (1931).

2. Jean Bethke Elshtain, “The New Porn Wars,” New Republic, June 25, 1984, pp. 15-20.

3. Tribe, Laurence, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978), p. 668Google Scholar.

4. American Booksellers Association v. Hudnut, 598 F. Supp. 1316 (1984).

5. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

6. Roth v. United States, 354 U.S. 476 (1957).

7. Manual Enterprises v. Day, 370 U.S. 478 (1962).

8. Jacobellis v. Ohio, 378 U.S. 184 (1964); Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413 (1966).

9. Stanley v. Georgia, 394 U.S. 557 (1969).

10. New York Times v. Sullivan, 376 U.S. 254 (1964).

11. Brandenburg v. Ohio, 395 U.S. 444 (1969).

12. Tinker v. Des Moines School District, 393 U.S. 503 (1969).

13. Ginsberg v. New York, 390 U.S. 629 (1968).

14. Redrup v. New York, 386 U.S. 767 (1967).

15. Ginzburg v. United States, 383 U.S. 463 (1966).

16. See boxed essay. Pornography and the Public.

17. Miller v. California, 413 U.S. 15 (1973).

18. Tribe, Op. Cit., Note 3, p. 661.

19. Jenkins v. Georgia, 418 U.S. 153 (1974).

20. For example, see Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968). Of course violence is a very important factor in determining whether other types of speech can be limited or punished. The threat of immediate and direct violence is at the core of the doctrine of “fighting words“; and one may be punished for the direct advocacy of violent overthrow of the government.

21. Leventhal, H., “An Empirical Inquiry into the Effect of Miller v. California on the Control of Obscenity,” 52 New York Law Review (1977), 810–935Google Scholar.

22. Bork, Robert, “Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal (1971), 1–35Google Scholar. Cf. Jamie Kalven, “Reagan's Next Justice? Robert Bork and the Constitution,” The Nation, October 1, 1983, pp. 262-267.

23. Berns, Walter, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976)Google Scholar, Chapter Five.

24. Canavan, Francis, “Freedom of Speech and Press: For What Purpose?” in McDowell, (ed.), Taking the Constitution Seriously (Dubuque, Iowa: Kendall-Hunt, 1981), pp. 305–342Google Scholar.

25. Cf. Dworkin, Andrea, Pornography: Men Possessing Women (New York: Putnam, 1981)Google Scholar.

26. Hudnut, Op. Cit., Note 4.

27. Chaplinsky, Op. Cit., Note 5.

28. Redrup, Op. Cit., Note 14.

29. New York v. Ferber, 458 U.S. 747 (1982).

30. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

31. Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976).

32. Beauharnais v. Illinois, 343 U.S. 250 (1952); see also Arkes, Hadley, “Civility and the Restriction of Speech: The Discovery and Defamation of Groups,” in Kurland, (ed.), Free Speech and Association (Chicago; University of Chicago Press, 1975)Google Scholar.

33. Much of this evidence comes from experimental research by social psychologists, in particular the work of Ed Donnerstein and his colleagues at the University of Wisconsin, Madison, and Neil Malamuth of the University of Manitoba. Most of the subjects for this research were male college students. In brief summary, the results indicate that prolonged exposure to filmed sexual violence resulted in diminished sensitivity to such violence, increased acceptance of aggression, increased belief in rape myths, and fantasies of sexual aggression. Some subjects reported an increased propensity toward aggressive behavior. It must be emphasized that all of these reported effects were attitudinal and not behavioral. Exposure to non-violent — so-called “ordinary” — pornography did not produce the same results. Donnerstein found that some of the most brutal and graphic forms of violence against women were not in X-rated films, but R-rated films shown in theaters and on cable television. See, for example, Malamuth, Neil and Donnerstein, Ed (eds.), Pornography and Sexual Aggression (New York: Academic Press, 1984)Google Scholar; Malamuth, and Donnerstein, , “The Effects of Aggressive-Pornographic Mass Media Stimuli,” 15 Advances in Experimental Social Psychology (1982), 104–135Google Scholar; Linz, Daniel, Donnerstein, Ed and Penrod, Steven, “The Effect of Long Term Exposure to Filmed Violence Against Women,” (Unpublished paper, 1984)CrossRefGoogle Scholar; and Donnerstein, Ed, “Erotica and Human Aggression,” 2 Human Aggression (1983), 141.Google Scholar

34. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

35. New York Times v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697(1931).

36. Freedman v. Maryland, 380 U.S. 51 (1965).

37. Grayned v. City of Rockford, 408 U.S. 104 (1972).

38. Keyishian v. Board of Regents, 385 U.S. 589 (1967).

39. Jacobellis, Op. Cit., Note 8.

40. See Bryden, David, “Between Two Constitutions: Feminism and Pornography,” 2 Constitutional Commentary (1985), 147–180Google Scholar.

41. Tribe, Op. Cit., Note 3, pp. 669-670.

42. Marcuse, Herbert, “Repressive Tolerance,” in A Critique of Pure Tolerance (Boston: Beacon Press, 1968)Google Scholar.

43. Cf. Berlin, Isaiah, “Two Concepts of Liberty,” in Four Essays on Liberty (New York: Oxford University Press, 1969)Google Scholar. The feminist approach also raises the issue of group vs. individual rights, and the various contexts in which that issue arises, e.g. affirmative action, group libel.

44. Cohen v. California, 403 U.S. 15 (1971).

45. Canavan, Op. Cit, Note 24.

46. Haiman, Franklyn, Speech and Law in a Free Society, (Chicago: University of Chicago Press, 1981)Google Scholar, Chapter 18 and passim. See also Dorsen, Norman and Gora, Joel, “The Burger Court and Freedom of Speech,” in Blasi, (ed.), The Burger Court: The Counterrevolution That Wasn't (New Haven: Yale University Press, 1983)Google Scholar.

47. Downs, Donald, Nazis in Skokie: Freedom, Community, and the First Amendment (South Bend, Ind.: University of Notre Dame Press, 1985)Google Scholar.

48. Downs himself comes a bit closer to this position in a forthcoming article in which he argues that in such cases the burden of proof to demonstrate harm should be on the plaintiff or on the government. “Skokie Revisted: Hate Groups, Speech, and the First Amendment,” 60 Notre Dame Law Review (forthcoming).

49. From the ACLU brief in Hudnut, Op. Cit., Note 4.

50. Haiman, Op. Cit., Note 46.

51. Paris Adult Theatre, Op. Cit., Note 34.

52. O'Brien, Kathy, quoted in Nat Hentoff, “Anti-Pornography Law Outfoxes the Constitution,” The [Madison] Capital Times, September 19, 1984, p. 14Google Scholar. See also Blakely, Mary Kay, “Is One Woman's Sexuality Another Woman's Pornography?“ MS, April, 1985, pp. 37–47, 120-123.Google Scholar