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The Supreme Court and Pornography: A Forty-Year Perspective
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10372 |
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Section : |
Modern Thought
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| Issue
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12 / 1986 |
4,629 Words |
| Author
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Russell Kirk
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Once upon a time, responsibility for restraining pornographic publications lay within the police powers of the several states. Not until after World War II did federal courts begin to intervene in such concerns, tending to restrain censors rather than pornographers. Soon the Supreme Court was handing down decisions that opened the sluices, in effect, to the flood of obscenity examined in the recent report of the Attorney General's Commission on Pornography.
For four decades the Supreme Court has been backing and filling on such nasty matters. Chief Justice Earl Warren once declared that, should he find in his daughter's hands such foul materials as the pornography shown in evidence during one appeal to the Court, he would knock the pornographer down; nevertheless, as a justice he would not impair the pornographer's right to publish the trash.
The principal purpose of the law is to keep the peace, but when the question was pornography, Mr. Justice Warren seemed ready to return the country to the practice of private feud and personal vengeance--just what the law had grown up to avert. Over the years, the Supreme Court's major decisions on appeals of cases involving pornography have seemed no more consistent than Chief Justice Warren was.
Despite occasional expressions of distaste for dirty pictures and obscene phrases, most justices most of the time have been considerably more concerned for the integrity of the second provision of the First Amendment than for the public and private consequences of indecent publication. The course of the Supreme Court's intervention in the censorship of obscene publications and the reasoning or prejudices behind the Court's decisions are matters of some interest--in the light of the consequences of forty years' indulgence of lubricity, as described in the report of the attorney-general's commission.
With the widespread increase of literacy and the improvement of printing techniques, traffic in pornographic materials has gone on since late in the eighteenth century. In every country until very recently, restraints upon obscene publications were employed by the public authorities; nevertheless, under-the-counter traffic in such goods persisted everywhere in some degree, and borderline publications were tolerated much of the time. The grounds for state prohibition of pornography were chiefly three: (1) incitement to crimes against the person that pornography may work, (2) damage done to the family by pornography's attractions, and (3) public duty to protect the emotions and minds of children from obscene images and concepts.
In America, addiction to pornography--in books, magazines, films, electronic media of communication--was not a serious affliction until after World War II. As is generally the case with war, World War II injured public morality in a variety of ways, arousing sensual appetites and besmirching the moral imagination that gives us our vision of human dignity. The swift increase in indecent publications shortly after the war's end provoked stronger action by local committees, police forces, and voluntary associations to restrain this traffic. The contest between official or unofficial censors on one side and pornographers (and some reputable publishers) on the other was carried into the federal courts--where it still lingers.
Forty years ago, we were in the green tree; we are
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