One of the most complete victories in the fight for free expression has also been one of the least heralded: We now live in a world of ubiquitous and infinitely varied pornography. Forty years ago, porn—however defined—was not only relatively tough to find, it was relatively homogenous and restrained in its manifestations.
Not so anymore. As The Wall Street Journal's "Business World" columnist, Holman W. Jenkins Jr., fretted in the conservative journal Policy Review earlier this year, we've witnessed nothing short of a "revolution in the availability of pornography" over the past few decades. "Porn has moved out of a few segregated public spaces, the seedy book shops and triple-X theaters, and become ubiquitous on the web, on cable, in neighborhood video shops."
During the 1970s and '80s, battles over the spread and the effects of porn were the stuff of headlines. By the end of the '90s, porn had become less a perennial controversy than a big business, grossing between $5 billion and $8 billion annually. Paradoxically, porn is more available than ever, yet less of a public issue.
Why? Perhaps most important, technological developments—especially the VCR and the Internet—increasingly allow porn to be consumed in private settings, rendering most battles over the location of the local Pussycat Theatre obsolete. Then there's what gets described alternately as the ongoing liberation or vulgarization of American culture. Reflecting rising levels of education and standards of living, the sexual revolution and other antinomian trends, our society has become far more tolerant of all sorts of activity and behavior once considered deviant or simply unseemly. (One meaningful exception to this general tolerance is child pornography, which continues to generate the outrage and condemnation it deserves.)
With regards to erotica, the result might be called John Stuart Mill's wet dream, combining the philosopher's penchant for "experiments in living" with his defense of a maximized private sphere in which consenting adults are mostly free to do as they please.
Philip D. Harvey's engaging new memoir, The Government vs. Erotica: The Siege of Adam & Eve (Prometheus Books), fleshes out another important contributing factor to the porn revolution: legal battles over the right to sell sexually explicit materials. Harvey is the head of the family planning organization DKT International, and an avid supporter of libertarian causes ranging from free speech to drug legalization. (He has also donated to the Reason Foundation, the nonprofit that publishes this magazine.) More to the point, Harvey is the owner of Adam & Eve, a North Carolina–based company that sells sex toys, adult videos, and contraceptives through the mail and over the Web.
In 1986, Adam & Eve was invaded by law enforcement officials on the hunt for "obscene" materials. Thus began an eight-year battle, in which Harvey fought the federal government for the right to sell dirty movies, condoms, and other sexual aids to willing adults. After winning an obscenity trial in conservative Alamance County (during which prosecutors made a show of entering into evidence a "foot-long double dong" sold by Adam & Eve), Harvey found himself up against the U.S. Department of Justice under Attorney General Edwin Meese.
The Meese DOJ pursued a nationwide strategy, "Project Postporn," in which it filed simultaneous, multiple-district prosecutions against porn sellers. The goal—often successful—was to scare vendors into quickly accepting draconian settlements that allowed them to avoid or reduce jail time by shuttering their doors. Harvey took a different tack: He fought the federal obscenity charges (eventually spending some $3 million on legal fees), and brought a civil suit against the feds, ultimately settling all matters largely on his terms.
The Government vs. Erotica charts Harvey's struggle in a consistently intriguing and readable fashion, mixing legal documents and memos with the author's own account. It is a chilling tale, one of state repression and overreach. But it's also one with a happy ending, not just for porn consumers but for all supporters of free expression. "The U.S. obscenity laws under which we were prosecuted are still in place, strong, vague, and…enforceable in differing and frequently unjust ways," writes Harvey. Nonetheless, his struggle, including the court battles, "indictments in two states, a trial in one, and…a lawsuit …against the U.S. Department of Justice…led to a significant victory for the right of Americans to read and to see the forms of entertainment that they wish to read and to see."