Mapplethorpe v. Madison

If Finnis, Schauer, and Feinberg are genuine about their mission, they must trespass upon more First Amendment ground than they might be willing to admit. After all, how does one distinguish hard­core pornography from art in a culture that knows no definition of art? Robert Mapplethorpe answered playfully: "Pornography is fine with me. If it's good it transcends what it is." ⁹⁵ Evidently, Frederick Schauer agreed: an "artist" is entitled to depict arms stretching into anuses or to represent one person's urinating into another's mouth. ⁹⁶ Can that "speech" be abridged? "Absolutely not. It's not even close," ⁹⁷ Professor Schauer was heard to say. Apparently, Mapplethorpe's art/porn transcended what it is because of who he was and where it was. ⁹⁸ "The very fact that it's by Mapplethorpe and it's in a museum would ... lead me to say it's not even close," ⁹⁹ Schauer confirmed. Implicit in his observation is a perplexing premise: when a curator mounts a pornographic picture on a museum wall, he turns porn into art. But, it might just as well be the opposite. Hasn't the curator turned the museum into a porn palace? One need not take sides in this debate over aesthetics in order to appreciate that pornography is what it becomes and remains what it was.

Moreover, how does one fight hard­core pornography without likewise fighting the all­too­human mindset in our increasingly pornographic culture? Sexual release needs the mind's eye. May not as much mental energy be expended on hard­core pornography as on a dime novel? If so, is pornography non­speech more because of where it takes us than how it takes us there? In other words, it appears that the likes of Finnis, Schauer, and Feinberg may be more concerned with orgasm than with cognition. On this score, they are destined to be outcasts in a culture that prefers retinas in the service of pleasure to retinas in the service of reason. As Camille Paglia, the Queen of Pornotopia, reminds us: "The sexual revolution is not just about what you do with your body­­it's about what you do with your mind." ¹⁰⁰ This lesson is at least as old as classical mythology. The Greeks recognized that Pleasure was born from the union of Eros and Psyche.

If these adversaries of the pornographic state may not ultimately win the war, they can at least take comfort in the knowledge that they have launched a powerful broadside against pornotopia. For, indeed, there are troubling consequences from forsaking the search for a definition of speech that distinguishes art from pornography. Those consequences, Schauer reminds us, have to do with things like rubber­­and plastic and leather. ¹⁰¹ Unless the concept of speech is somehow delimited, the prophylactic of the First Amendment will protect any erotic act or eroticized object that might stimulate orgasm. And some call this the ultimate freedom. But even the critical Left appreciates that "a society unwilling or unable to trust to its own instinct in laying down a standard of decency does not deserve to survive and probably will not survive." ¹⁰²