Guardians of the Old First Amendment

Incredibly, no less noble a figure than Alexander Meiklejohn played a role in moving American constitutional law away from the old Madisonian utopia and toward the new pornotopia. When, in 1961, he extended his self­governance rationale for First Amendment protection beyond the political debates of the town meeting to literary and artistic expression, ⁸⁰ Meiklejohn opened the gates of free speech in such a way that they might never be closed to pornography. Addressing the governmental regulation of print erotica, Meiklejohn asked: "Shall the government establish a censorship to distinguish between 'good' novels and 'bad' ones? And, more specifically, shall it forbid the publication of novels which portray sexual experiences with a frankness that, to the prevailing conventions of our society, seems 'obscene'?" ⁸¹ He answered with an "unequivocal 'no.' ... [T]he authority of citizens to decide what ... they shall read and see, has not been delegated to any of the subordinate branches of government. It is 'reserved to the people,' each deciding ... whom he will read, what portrayal of the human scene he finds worthy...." ⁸² This self­authority, of course, glides all too readily from speech to art and music, and then to erotica and beyond in the American commercial entertainment culture. In principle (and especially in a democratic pleasure state), Plato well understood the consequences of mingling the political with the artistic; that is why, in the Republic, Plato sent the poets packing. ⁸³ Even the less philosophical Robert Bork balked at the pornographic implications of Meiklejohn's admission:  "[C]onstitutionally, art and pornography are on a par with industry and smoke pollution." ⁸⁴

Mindful of this dilemma, the enemies of pornotopia seek to drive a wedge between the artistic and the pornographic, between the likes of the late Federico Fellini and the lively Larry Flint. The foes of the pornographic state hold firmly to Justice Potter Stewart's belief that hard­core pornography " 'cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment.' " ⁸⁵ The opponents of pornotopia seek to make explicit what is implicit in this argument: speech can and must be defined to exclude erotic excesses. For them, the sine qua non of First Amendment protection is that expression be a communication­­the transmission of a "mental stimulus" that is "designed to appeal to the intellectual process" rather than "to produce a purely physical effect." ⁸⁶ Expression is speech "precisely to the extent that it derives from and appeals to the intellectual end of the intellect­emotion continuum." ⁸⁷

Preeminent among the guardians of the old First Amendment gates are John Finnis, Frederick Schauer, and Joel Feinberg. They conclude that hard­ core pornography is not protected by the First Amendment because it does not satisfy even the threshold requirement of "speech." Pornography is not "communication" because its intended and actual effect­­sexual arousal­­is "perceived as a primarily physical reaction." ⁸⁸ And it is perceived as such by both the purveyor and the user of pornography. "The panderer is participating in the marketplace of prurient interest," we are reminded, "not in the marketplace of ideas." ⁸⁹ As for the pornographic consumer, "[t]he fundamental question is simple: does the reader look for 'titillation' or for 'intellectual content'?" ⁹⁰ Essentially, hard­core pornography is no more than a "masturbatory aid." ⁹¹ "So­called 'filthy pictures' and hard­core pornographic 'tales' are simply devices meant to titillate the sex organs via the mediation of symbols. They are designed exclusively to perform that function and are valued by their users only insofar as they succeed in that limited aim." ⁹² Hence, rubber can never be speech, for "much of what this material involves is not so much portrayal of sex, or discussion of sex, but simply sex itself." ⁹³ Accordingly, "[t]he basis of the exclusion of hard core pornography from the coverage of the Free Speech Principle is not that it has a physical effect, but that it has nothing else." ⁹⁴