Rubber & Reason in Pornutopia
Years ago, the Justices gathered in the basement of the Supreme Court on "movie day" to watch such films as I Am Curious (Yellow). During one of those showings, Justice John Marshall Harlan was heard to say, "By Jove. Extraordinary." 76 Borrowing Justice Potter Stewart's line, some law clerks chimed in jocularly: " 'That's it, that's it, I know it when I see it.' " 77 Stewart's famous quip is commonly invoked to emphasize seeing as grounds for denying First Amendment protection to pornography. What is overlooked, however, is the knowing acknowledged in the "I know it when I see it" maxim. From that perspective, the meaning of Justice Stewart's playful quip turns 180 degrees: seeing pornography conveys a message that can be known.
Anthony enters a sex shop on New Orleans' Bourbon Street, walks directly to the erotic clothes rack, and gawks at shiny black rubber skirts and stockings. The rubber speaks to him and he knows it. 78 Is rubber speech? Absurd as this may seem, in the pornographic republic of images, this question must be answered, and answered seriously.
At its coreits hardcorethe pornographic state holds that it is impossible to define the meaning of speech in the text of the First Amendment. The pornographic man, though he may talk 'til the end of time, will never define or even concede the possibility of defining speech. For him, speech is many things; in fact, it is all things. At the very least, it is expression, and most assuredly it includes selfexpression. It may be symbolic or just conduct. It may be ideational or simply emotional. It may be musical or pictorial. It may be intentional or unintentional, communicative or non communicative, public or private, or it may be no more than an image of an image of something once thought real. Speech may even be rubber speaking to Anthony.
In the pornographic state, the very notion of a fundamental right to free speech is an occasion for unabashed dancing in the streets or topless dancing on bar tables. It is a cause for celebration, for waving flags or even burning them. It is a right to turn ideas into images, silence into sound, and even a right to turn nouns into verbs. It is, above all else, a constitutional license to porn the world and everything in it.
Thomas Hobbes, the philosopher of pleasure, reminds us that a refusal to define something reduces talk about it to mere opinion or belief. 79 That is precisely the point in pornotopia. There is no fact (even death?) that cannot be equated with fantasy, and truth resides only in the subjective eye. This refusal to define pornography might lead some to believe that First Amendment freedoms are the same as liberty interests under the Fifth and Fourteenth Amendments. Quite to the contrary. The two may otherwise be difficult to distinguish, but the defenders of pornotopia must label free speech as seminal, indeed as essential to the good life. They may not be able to define speech, but they know it when they see it.
