Madisonian Self-Realization vs. Pornutopian Self-Gratification

However pornography is understood, there are troubling consequences for the Madisonian ideal when the pornographic experience is coupled with public expression. In this regime, is it any longer possible to differentiate Madisonian self­realization from pornotopian self­gratification? Is it any longer possible for rational logic to trump erotic logic? Is it any longer possible to distance public good from private self­indulgence? And finally, will this regime tend to collapse the First Amendment theory of reasoned discourse into a principle of pleasure?

Implicit in these questions is an important point rarely made explicit in current theories of free speech­­the potentially corrupting influence of certain forms of private expression on public discourse. The Madisonian First Amendment stands to lose its staying power when it is trivialized, marginalized, and eroticized by a mass commercial entertainment culture wed to self­gratification, ¹⁶ particularly pornographic gratification. In such a world, the Madisonian ideal is subverted precisely because key prerequisites for that system are perverted. Succinctly put, the traditional system of free expression mis­functions in our contemporary popular culture. It misfunctions to the extent that we equate gratification with realization. It misfunctions to the extent that pornographic images masquerade as political ideas. In all of this, the First Amendment is recreated so that personal pleasure is the ultimate political purpose. As recreated, the new maxim is: Liberty is License. And America saw that it was good ­­ very good.

Any real awareness of the recreated First Amendment requires a vision of the world as seen through the pornographic eye. In other words, it is necessary to understand something about the workings of erotic logic and of pornographic expression. At the outset, we offer a few comments about the word "pornography." Our use of the word is not limited to any current legal definitions, including definitions of "obscenity." Nor is our use of the term confined to that of any of the current ideological camps on the legality of pornography, although such use cannot be divorced from politics. For us, what is important about pornography is that it trades in depictions of sexual acts, primarily through highly eroticized images. What is also important is that it is publicly available, typically through commercial distribution. Moreover, pornography is not a static phenomenon: its appearance alters as it pollinates the commercial entertainment culture. And if pornography is communication­­a questionable proposition­­it is communication of a different order than the deliberative discourse said to be at the core of the First Amendment.

Admittedly, our use of the word "pornography" might be seen as too narrow or too broad. Both the penal law and the Supreme Court reveal, of course, that there can be pornography without mass production, commercial distribution, or pictures. ¹⁷ Yet for over two decades, pure print erotica, even if mass­ produced and commercially distributed, have been functionally immune from criminal censorship. ¹⁸ Today, prosecutors simply have little or no interest in the likes of the Marquis de Sade's The 120 Days of Sodom, D.H. Lawrence's Lady Chatterly's Lover, Henry Miller's Tropic of Cancer, or even the infamous Suite 69. ¹⁹ This is, after all, the era of the image, in which the naked printed word provides comparatively little erotic rush. Furthermore, we have no squabble with those who may charge that our notion of pornography is so broad that it might encompass the artistic. Indeed, the pornographic enterprise aims to blur lines and to pose as a disseminator of material with serious artistic value.