Lawyers and Free Speech


Lawyers frequently charge of laymen that their conception of law is far too rigorous to be in accordance with law as it actually operates in our system. No doubt this charge is justified in all too many cases. Yet when it is leveled against those individuals who merely declare their preference for a legal system of laws which is comprised of principles and measures that are in fact rigorous both in definition and application, the charge overshoots its mark. These laymen are not interested in the obvious but unfortunate fact that the bulk of the laws of our legal system are actually quite loose and subject to so wide a range of interpretations that the same law is at times applied to support contradictory verdicts and judgments. Their interest lies, instead, in what the law ought to be, an interest that surely is immune from criticism which relies on actual and past situations to support its claims.

In this short paper I would like to offer some suggestions to those individuals in the legal profession who are concerned and have worked with the idea of improving that area of our legal system which deals with pornography. There are many lawyers who have done considerable work on cases dealing with pornography statutes and who have, from time to time, argued for the complete elimination of such statutes on various legal and philosophical grounds. I am concerned with one specific legal ground that has in the past been used in an effort to eliminate laws against obscenity or pornography, i.e., censorship laws.

A frequent counter to the request for legal regulation of certain types of publications commonly labeled "pornographic" and "obscene" has been the claim that a precise definition of pornography and obscenity is impossible. Therefore any judgment to the effect that a certain picture, book, motion picture or other kind of creation is pornographic or obscene must necessarily be unjust; it is, after all, clearly impossible to specify what is or is not obscene and pornographic if standards are impossible.

In response to this kind of criticism the Supreme Court has attempted on several occasions to define obscenity but its definitions have failed miserably not only for purposes of language usage but for the planned legal aims as well. Since the Court wanted to refrain from indulging in moralizing, in its attempt to define obscenity it tried to relativize the meaning for the term with such a phrase as "social redeemability". This move merely made the law virtually impossible to apply equally, since hardly any community in the United States has the same social make-up and considers the same things socially redeeming.

Despite such difficulties, the Court's relativistic approach has been welcomed by a number of attorneys and civil liberties organizations, who view the controversy over obscenity and pornography as one between those who would assign specific meanings to words and those who would prefer language more diffuse and imprecise. With the view that none of the words in the language can have the kind of precise meaning that is ideally desired in the law, it becomes simply a matter of pointing to such words as "obscene" and "pornographic" as perfect examples. Since there is no real destruction of life and property in crimes involving obscenity, the thesis that by virtue of the lack of precision of the term the whole legal matter should be dropped appears to be a hopeful one. In other words, if we want to assure that individuals are left free to pursue their various activities, including some that others don't like very much but cannot prove to be harmful, the best thing to do is to show that these activities don't really exist at all—that there is no way of detecting them, defining them, etc., for legal purposes.

While this approach may be understandable and even sometimes fruitful, it is open to criticism. First of all, the success of this approach depends heavily on the mutual interest of courts and civil liberties attorneys and organizations to foster artistic, economic, and literary freedom within the territory of jurisdiction. If both the courts and these agencies desire that firms and people charged with obscenity or pornography be left alone to pursue their ends, then this tactic will succeed. But should a court decide to do so, it may reject epistemological agnosticism, and, proposing its own definition of obscenity, proceed to class all sorts of creations within it for legal purposes.

The simple fact is that there is plenty of obscenity around; all we need do is look or ask. Even without a precise definition of obscenity, it takes little effort to distinguish between an obscene picture and one that merely depicts artistic conceptions in radical terms. There are, in other words, many cases of outright obscenity and pornography and it is plainly ludicrous to say that they are comparable to the creations of history's great artists. The same can be said with regards to films, books, magazines, plays, etc. The fact that in some cases there is great difficulty in telling the obscene from the artistically innovative and meaningful does not contradict the point; after all, even with two fairly easily distinguished articles of furniture, tables and chairs, there are varieties which could fit into either category.

The problem of the legal treatment of borderline cases is, of course, an acute one. The slightest possibility of a mistake should, in most cases, warrant a judgment in favor of the accused. But in cases of obscenity what is required is not greater precision, but a legal system that does not even concern itself with activities (writing, reading, filming, painting, etc.) which are obscene or pornographic. So long as these activities do not abridge the rights of others to refrain from paying heed to them, there can be no sound reason for prohibiting their performance. The private production and sale of obscene or pornographic articles coerces no one into having to contend with them against their wishes. Granting that in the cases of the public sale and transportation of obscene material there exist the problems of just when does an article intrude on the life of someone who does not want it, the central issue is still whether the production and distribution of obscene material does, in fact, infringe on the rights of privacy. (Incidentally, the complaint that obscene magazines appear on "public" newsstands should have no bearing on the question. After all, Time, Look, National Review and other publications which also appear thus can be of a similar offensive quality to some of those who cast their eyes upon newsstands. Does this "offense" warrant court action and prohibition? Certainly not in their case. So there is no reason it should in the case of magazines of more generally offensive natures.)

The First Amendment establishes the legal recognition of the right to a free press in all cases, not merely in uncontroversial cases. It is precisely in controversial cases that this guarantee is of greatest importance. While one can certainly criticize the exercise of a right without calling the propriety of the right into question, any attempt to make and enforce laws against obscene publications constitutes just that kind of an attack on the propriety of the guarantee of the right of free press.

There are those who would argue that since the First Amendment is "compromised" in other instances, for example with regard to yelling "Fire" in a crowd, there cannot be an objection to this additional compromise. The question is really whether yelling "Fire" in a crowd is an exercise of free speech at all. While a number of legal experts have said that yelling "Fire" in a crowd is an example of exercise of free speech, this is fundamentally confusing. The reason for the confusion is the whole issue of a sphere of authority. For example, if a guest of John starts yelling "Fire" in John's back yard and John stops him, John has in no way impinged with the guest's right of free speech. And again, if a theater owner evicts a man for yelling "Hi-Ho" in his theater, that does not constitute an infringement of free speech rights. Both of these cases fall under property rights considerations; in other words, in both cases what is at stake is not what was said, but where and how the words were spoken. Even in cases where the above considerations are of no significance, it is still not the fact that something was said—a certain point of view was offered for consideration—but that saying this particular word, in this way, at this point necessarily interferes with the normal course of events, especially if what was said is false. To yell "Fire" in a crowded theater when there is no fire constitutes a lie of such grave significance that its implications burden the person who did the yelling with certain responsibilities for which he can be held legally accountable. But this is by no means an example to show that exercising one's right to speak freely is often discouraged by law. Anyone, after all, is permitted to turn to his friend while sitting in his own home and tell him that there is a fire in the kitchen.

The First Amendment is not compromised by certain disallowances of indiscriminate yellings (of, e.g., "Fire"). But it is compromised seriously by any disallowance of speaking obscenely or writing pornography. In these cases there is no coercion involved—no one is required to listen or read as in the case of yelling "Fire". To deny someone the legal protection against those who might want to stop him from writing and publishing obscene or pornographic material is, however, to run squarely in the face of First Amendment provisions, especially when it is a governmental agency which is about to stop such activities. Whenever the Supreme Court upholds an act of this nature or refuses to rule against one, it is disregarding a blatant abridgment of free speech rights.

The Founding Fathers seemed to have had great respect for human beings, at least implicitly. Their judgment in forbidding government to determine truth or worth in works or art, science, politics, etc. had to rest on the confidence that the citizenry is competent in determining these matters. It did not constitute a denial of the possibility that truth and worth can be determined; sensing the implications of legally supported determinations of that kind—namely that truth will be sacrificed to political favoritism if the latter is required for the upholding of the former—they refused to allow the government to meddle in questions of truth and worth except in very special cases.

It would be wise if those who aim at retaining the separation of state and judgments of worth—including what is or is not obscene—were to admit that bad and obscene and pornographic materials do exist, while denying that this entitles any legal body to take action against those who produce them. When such civil rightists and constitutionalists rely on the judgment of different courts, to the effect that a particular question cannot be decided because the issue is a matter of people's subjective identifications and definitions, they ground the freedom of the press and freedom of speech not in legal protection but in men's subjective judgments. And while temporarily we can aim at liberating artistic expression through the evasive claims that no one can know what Is obscene, hoping that the judge agrees with this agnosticism, there is no legal guarantee that the next day's judge is not going to disagree with us. In that case what will be needed is another approach to freeing those who for various reasons want to produce and sell obscene or pornographic works. So at the outset the aim should be to divorce law from artistic judgments concerning the worth or desirability of various creations, instead of confusing the law to the point where any legal agent can play havoc with it, depending upon his own subjective feelings of the day.