3.3 Is the Supreme Court Right?
We cannot ignore our own obligations not to recommend what we believe to be unconstitutional. Numerous people, in both oral and written evidence, have urged upon us the view that the Supreme Court's approach is a mistaken interpretation of the First Amendment. They have argued that we should conclude that any criminal prosecution based on the distribution[39] to consenting adults of sexually explicit material, no matter how offensive to some, and no matter how hard-core, and no matter how devoid of literary, artistic, political, or scientific value, is impermissible under the First Amendment.
We have taken these arguments seriously. In light of the facts that the Supreme Court did not in Roth or since unanimously conclude that obscenity is outside of the coverage of the First Amendment, and that its 1973 rulings were all decided by a scant 5-4 majority on this issue, there is no doubt that the issue was debatable within the Supreme Court, and thus could hardly be without difficulty. Moreover, we recognize that the bulk of scholarly commentary is of the opinion that the Supreme Court's resolution of and basic approach to the First Amendment issues is incorrect.[40] With dissent existing even within the Supreme Court, and with disagreement with the Supreme Court majority's approach predominant among legal scholars, we could hardly ignore the possibility that the Supreme Court might be wrong on this issue, and that we would wish to find protected that which the Supreme Court found unprotected.
There are both less and more plausible challenges to the Supreme Court's approach to obscenity. Among the least plausible, and usually more rhetorical device than serious argument, is the view that the First Amendment is in some way an "absolute," protecting, quite simply, all speech. Even Justices Black and Douglas, commonly taken to be "absolutists," would hardly have protected all spoken or written acts under the First Amendment, and on closer inspection all those accused of or confessing to "absolutism" would at the very least apply their absolutism to a range of spoken or written acts smaller than the universe of all spoken, written or pictorial acts. This is not to deny that under the views of many, including Black and Douglas, what is now considered obscene should be within the universe of what is absolutely protected. But "absolutism" in unadulterated form seems largely a strawman, and we see no need to use it as a way of avoiding difficult questions.
Much more plausible is the view not that the First Amendment protects all spoken, written, or pictorial acts, but that all spoken, written, or pictorial acts are at least in some way covered, even if not ultimately protected, by the First Amendment. That is, even if the government may regulate some such acts, it may never do so unless it has a reason substantially better than the reasons that normally are sufficient to justify governmental action. Whether this heightened standard of justification is described as a "clear and present danger," or "compelling interest," or some standard less stringent than those, the view is still that regulating any spoken, written, or pictorial acts requires a particularly good reason. And when applied to the regulation of obscenity, so the argument goes, the reasons supplied and the empirical evidence offered remain too speculative to meet this especially high burden of justification.
Other views accept the fact that not all spoken, written, or pictorial acts need meet this especially high burden of justification. Only those acts that in some way relate to the purposes or principles of the First Amendment are covered, but, it is argued, even the hardest-core pornographic item is within he First Amendment's coverage. To some this is because both the distribution and use of such items are significant aspects of self-expression. And while not all acts of self-expression are covered by the First Amendment, acts of self-expression that take the form of books, magazines, and films are, according to the argument, so covered. These, it is argued, are the traditional media of communication, and when those media are used to express a different world view, or even merely to achieve sexual satisfaction, they remain the kinds of things towards which the First Amendment is directed. As a result, regulation of the process by which an alternative sexual vision is communicated, or regulation of the process by which people use the traditional media of communication to experience and to understand a different sexual vision, is as much a part of the First Amendment as communicating and experiencing different visions about, for example, politics or morals. A variant on this last argument, which takes obscenity to be within a range of First Amendment coverage admittedly smaller than the universe of communicative acts, looks not so much to the act or to the communication but instead to the government's reasons for regulating. If, so the argument goes, government's action in restricting is based on its reaction to a particular point of view, then the action is impermissible. Because it is the purpose of the First Amendment to allow all points of view to be expressed, an attempt by government to treat one point of view less favorably than another is unconstitutional for that reason alone, no matter how dangerous, offensive, or otherwise reprehensible the disfavored point of view may be.
We have heard witnesses articulate these various views intelligently and forcefully, and we have read more extensive versions of these arguments. They are not implausible by any means, but in the final analysis we remain unpersuaded that the fundamental direction of Roth and Paris is misguided. Indeed, we are confident that it is correct. Although we do not subscribe to the view that only political speech is covered by the First Amendment, we do not believe that a totally expansive approach is reasonable for society or conducive to preserving the particular values embodied in the First Amendment. The special power of the First Amendment ought, in our opinion, to be reserved for the conveying of arguments and information in a way that surpasses some admittedly low threshold of cognitive appeal, whether that appeal be emotive, intellectual, aesthetic, or informational. We have no doubt that this low threshold will be surpassed by a wide range of sexually explicit material conveying unpopular ideas about sex in a manner that is offensive to most people, and we accept that this is properly part of a vision of the First Amendment that is designed substantially to protect unpopular ways of saying unpopular things. But we also have little doubt that most of what we have seen that to us qualifies as hard-core material falls below this minimal threshold of cognitive or similar appeal. Lines are of course not always easy to draw, but we find it difficult to understand how much of the material we have seen can be considered to be even remotely related to an exchange of views in the marketplace of ideas, to an attempt to articulate a point of view, to an attempt to persuade, or to an attempt seriously to convey through literary or artistic means a different vision of humanity or of the world. We do not deny that in a different context and presented in a different way, material as explicit as that which we have seen could be said to contain at least some of all of these characteristics. But we also have no doubt that these goals are remote from the goals of virtually all distributors or users of this material, and we also have no doubt that these values are present in most standard pornographic items to an extraordinarily limited degree.
In light of this, we are of the opinion that not only society at large but the First Amendment itself suffers if the essential appeal of the First Amendment is dissipated on arguments related to material so tenuously associated with any of the purposes or principles of the First Amendment. We believe it necessary that the plausibility of the First Amendment be protected, and we believe it equally necessary for this society to ensure that the First Amendment retains the strength it must have when it is most needed. This strength cannot reside exclusively in the courts, but must reside as well in widespread acceptance of the importance of the First Amendment. We fear that this acceptance is jeopardized when the First Amendment too often becomes the rhetorical device by which the commercial trade in materials directed virtually exclusively at sexual arousal is defended. There is a risk that in that process public willingness to defend and to accept the First Amendment will be lost, and the likely losers will be those who would speak out harshly, provocatively, and often offensively against the prevailing order, including the prevailing order with respect to sex. The manner of presentation and distribution of most standard pornography confirms the view that at bottom the predominant use of such material is as a masturbatory aid. We do not say that there is anything necessarily wrong with that for that reason. But once the predominant use, and the appeal to that predominant use, becomes apparent, what emerges is that much of what this material involves is not so much portrayal of sex, or discussion of sex, but simply sex itself. As sex itself, the arguments for or against restriction are serious, but they are arguments properly removed from the First Amendment questions that surround primarily materials whose overwhelming use is not as a short-term masturbatory aid. Whether the state should, for example, prohibit masturbation in certain establishments that are open to the public is a question that some would wish to debate, but it is certainly not a First Amendment question. Similarly, the extent to which sex itself is and under what circumstances constitutionally protected is again an interesting and important constitutional question, but it is not usefully seen as a First Amendment question.[41]
We recognize, of course, that using a picture of sex as a masturbatory aid is different from the simple act of masturbation, or any other form of sex. The very fact that pictures and words are used compels us to take First Amendment arguments more seriously than would be the case if the debate were about prostitution. Still, when we look at the standard pornographic item in its standard context of distribution and use, we find it difficult to avoid the conclusion that this material is so far removed from any of the central purposes of the First Amendment, and so close to so much of the rest of the sex industry, that including such material within the coverage of the First Amendment seems highly attenuated.
Like any other act, the act of making, distributing, and using pornographic items contains and sends messages. For government to act against some of these items on account of the messages involved may appear as problematic under the First Amendment, but to hold that such governmental action violates the First Amendment is to preclude government from taking action in every case in which government fears that the restricted action will be copied, or proliferate because of its acceptance. Government may prosecute scofflaws because it fears the message that laws ought to be violated, and it may restrict the use of certain products in part because it does not wish the message that the product is desirable to be widely disseminated in perhaps its most effective form. So too with reference to the kind of material with which we deal here. If we are correct in our conclusion that this material is far removed from the cognitive, emotive, aesthetic, informational, persuasive, or intellectual core of the First Amendment, we are satisfied that a governmental desire to restrict the material for the messages its use sends out does not bring the material any closer to the center.
We thus conclude not that obscenity regulation creates no First Amendment concerns, nor even that the Supreme Court's approach is necessarily correct. But we do believe the Supreme Court's approach is most likely correct, and we believe as well that arguments against the Supreme Court's approach are becoming increasingly attenuated as we focus on the kind of material commonly sold in "adults only" establishments in this country. We may be wrong, but most of us can see no good reason at the moment for substituting a less persuasive approach for the Supreme Court's more persuasive one.
