In expressing our views about the importance of the individual and his freedom in a free America, we have pointed out how essential a total separation of church and state is to our concept of democracy. We have also tried to show how religiously inspired puritanism has been allowed to subtly undermine certain of our most precious freedoms. Nowhere is this more insidiously dangerous than in the continuing erosion of our Constitutionally guaranteed rights to free speech and press, for it is these freedoms that assure the protection of all our other freedoms. It is for this reason that we are personally opposed to censorship in any form.
The U.S. Constitution and the Bill of Rights assure these freedoms and our legislatures, courts and officials of government continue to pay lip service to their protection, but in the brief lifetime of this nation, exceptions have been introduced—small cracks in the wall that encircles and protects our democracy’s ideals—cracks that will surely spread, and thus weaken and eventually destroy the wall, if they are not mended.
The right of the individual to speak and write what is on his mind—to express himself freely and without fear of any action against him by his government—does not allow for any exceptions. “It is time enough for the rightful purposes of civil government,” wrote Thomas Jefferson, “for its officers to interfere when principles break out into overt acts against peace and good order.” Our speech and our press cannot be half free or they are not truly free at all.
We have quoted Jefferson, James Madison, Justice William O. Douglas, Judge Thurman Arnold, and Presidents Franklin D. Roosevelt and John F. Kennedy on the importance of free and unhampered speech and press to our democratic way of life. We have shown how the U.S. Supreme Court has continually upheld these freedoms, but we have also pointed out an exception that the highest Court—itself composed of fallible men, influenced by our puritan traditions—has allowed to coexist with these Constitutional guarantees, thus making us truly only half free.
The exception is sex and the courts have ruled that “obscenity” is outside the protections of the First Amendment. We have argued, however, that so-called obscenity cannot and must not be considered outside the protections of our law or the law itself will soon break down and the broader protections of speech and press inevitably disappear. We argued that “obscenity” can never be satisfactorily defined and that the Supreme Court’s definition, while curtailing the most wanton, wholesale censorship, is nonetheless, in the words of Supreme Court Justice Douglas, “too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment.” Justice Douglas stated further that the Supreme Court’s standard for obscenity as what offends “the common conscience of the community” would certainly “not be an acceptable one if religion, economics, politics or philosophy were involved. How,” asked the Supreme Court Justice, “does it become a Constitutional standard when literature treating with sex is concerned?”
It clearly should not, for we have shown that no true community standard or “common conscience of the community” exists. As Justice Douglas has stated, “Under that test, juries can censor, suppress and punish what they do not like…. This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win.”
What is more, even if a satisfactory community standard ever could be established, that is no argument for suppressing other minority opinions. For the High Court has ruled that the Constitution rightfully protects even the most unpopular and distasteful ideas and history has shown us that some of our greatest literature and art met with public disfavor when it was first produced and was banned and censored as “obscene” in other times and places.
We have previously established that our founding fathers did not intend “obscenity” to be outside the protections of the Constitution. Jefferson stated, “The press, confined to truth, needs no other restraint…no other definite line can be drawn between the inestimable liberty of the press and demoralizing licentiousness”; Madison wrote that to make a “distinction between the freedom of and the licentiousness of the press” would subvert the First Amendment.
Last month we attempted to show not only the impossibility of ever adequately defining what is “obscene,” but also demonstrated how the charge of “obscenity,” once established as being outside the protections of the Constitution, can spread to include philosophical, political, social, medical, religious and racial ideas of which the censor does not approve.
Lastly, we pointed out that the very premise upon which the censorship of “obscenity” is based—that “obscene” and “pornographic” literature and art include acts of sexual violence and crime—is without foundation; there is, in fact, a serious school of scientific opinion that believes that “obscenity” actually makes a valuable contribution to the mental health of a society, since it may act as an outlet for sexually repressed desires that might otherwise take the form of overt sexual offenses in the emotionally unstable or maladjusted. Drs. Eberhard and Phyllis Kronhausen subscribe to this belief, as does noted sex authority Dr. Albert Ellis. A report by a committee of Brown University psychologists (Drs. Nissim Levy, Lewis Lipsitt and Judy F. Rosenblith) concluded, after reviewing all available U.S. research on the subject: “There is no reliable evidence that reading or other fantasy activities lead to antisocial behavior.” Dr. Benjamin Karpman, chief psychotherapist at St. Elizabeth’s Hospital in Washington, D.C., stated in a report before the American Medical Association, that “contrary to popular misconception, people who read salacious literature are less likely to become sexual offenders than those who do not, for the reason that such reading often neutralizes what aberrant sexual interests they may have.”
The Drs. Kronhausen wrote in their book, Pornography and the Law: “Erotic books may fulfill several eminently useful and therapeutic functions. We have already elaborated on the principle of catharsis through vicarious participation by reading. It always strikes us as strange that this ancient idea should be considered by some to be so novel and highly controversial. And as far as we know, the concept is at least as old as Aristotle, who recommended that Athenians go and watch the tragedies in the theater to avoid succumbing to antisocial impulses. We believe that this may apply equally to the antisocial sex impulses which are often given free rein in so-called ‘hard-core obscenity’….”
Supreme Court Justice Brennan has written, in a decision in an obscenity case: “Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance,” then, based upon the professional scientific opinions cited herein, it can be argued that—since all erotic literature and art may have some therapeutic value as a release for sexual tensions—no work can ever be judged “legally obscene,” because—by this definition—no such thing as “legal obscenity” can ever exist.
Justice Black and the Constitution
In a recent interview, Supreme Court Justice Hugo Black expressed his personal views on our American ideal of absolute freedoms of speech and press. The occasion of the interview was a banquet in New York City honoring Justice Black on his completion of 25 years of service on the United States Supreme Court. The interview was conducted by Professor Edmond Cahn, of the New York University School of Law, who stated in his introduction: “Hugo Black [is] one of the few authentically great judges in the history of the American bench…. He is great because he belongs to a select company of heroes who, at various crises in the destiny of our land, have created, nurtured and preserved the essence of the American ideal.
”…The torch of [such a man’s] spirit leads first a few, then the vast majority of his countrymen…toward freedom, equality and social justice.
“This is what happened at the very birth of our country…. It was the same kind of inspiration that gave us our national Bill of Rights. The original Constitution, drafted at the Philadelphia Convention, contained no bill of rights. The Federalists contended that though bills of rights might be necessary against emperors and kings, they were needless in a republican form of government. They argued that the people ought to repose trust in popularly chosen representatives. But Thomas Jefferson indignantly referred them to the words of the Declaration of Independence, which announced that governments derived their just powers from the consent of the governed: words to be taken literally, absolutely and without exception. He declared, ‘A bill of rights is what the people are entitled to against every government on earth.’ His demand succeeded, and the Bill of Rights was added to the Constitution. The Bill of Rights protects us today because Jefferson stood firm on the inspired text.
"Then there is the next momentous episode, the series of court decisions in which Chief Justice John Marshall held that acts of legislation that violated the Constitution of the United States were null and void. What was the clause on which Marshall relied in asserting this awesome power for the Supreme Court? It was the provision, to which all Americans had pledged themselves, that the Constitution of the United States must be ‘the supreme law of the land.’
"President Lincoln also drew guidance and inspiration from a single basic text. He opposed the institution of slavery because, as he said, the country was dedicated to the proposition that ‘all men are created equal.’ Our own epoch has again demonstrated the explosive validity of that proposition.
"What does one see happening in each of these historic instances? The majority of the people, at least at the beginning, are wont to say that though the basic text may embody a fine ideal, it cannot work in practical application. They say it is utopian, visionary, unrealistic. They remark condescendingly that any experienced person would know better than to take it literally or absolutely. Accepting the words at face value would be naive, if not simple-minded. In 1776 Worldly Wisemen of this kind said that while the colonists might be entitled to the rights of Englishmen, they ought to put their trust in the King and Parliament and submit to a few convenient adjustments in the interest of imperial security. In 1788 they said that while a bill of rights might be desirable in theory, the people must learn to show confidence in their rulers. Why not leave it all to a majority, whether in Congress or in the Supreme Court? In every generation, the lesser minds, the half-hearted, the timorous, the trimmers talked this way, and so they always will. Ours would be a poor, undernourished, scorbutic freedom indeed if the great men of our history had not shown determination and valor, declaring, ‘Here are the principles to which we are dedicated. Let us hold ourselves erect and walk in their light.’
"It is to this rare company of inspired leaders that Hugo Black belongs. He has been inflamed by the political and ethical ideals that Jefferson, Madison and other libertarians of the 18th century prized the highest…. He draws his inspiration from the First Amendment in the Bill of Rights, which forbids the government to abridge our freedom of speech, freedom of press, freedom of religion and freedom of association…. [These freedoms] are, to him, the meaning and inner purpose of the American saga.
"Justice Black’s major premise and point of departure is the text of the Constitution, which he emphasizes in all his decisions. He believes that the main purpose of the Founders, in drafting and adopting a written constitution, was to preserve their civil liberties and keep them intact. On their own behalf and on ours, they were not satisfied with a fragment or fraction of the basic freedoms; they wanted us to have the whole of them.
"Some people display a curious set of values. If government employees were to come into their homes and start slicing off parts of the chairs, the tables and the television set, they would have no doubt that what was happening was absolutely wrong. Not relatively or debatably, but absolutely wrong. But when the same government slices their civil liberties, slashes their basic freedoms or saws away at their elementary rights, these people can only comment that the case is too complicated for a doctrinaire judgment, that much can be said on both sides of the matter, and that in times like these the experts on sedition, subversion and national security know what they are doing. (Sometimes I wonder whether it is quite fair to assume that experts know what they are doing; perhaps it would be more charitable to assume that they do not know.)
"Justice Black’s uncompromising zeal for freedom of speech, press, religion and association might not have seemed so urgently necessary in previous periods of our history. In Lincoln’s day, men naturally felt more excited about food, employment and social welfare. But today, when democracy stands here and on every continent presenting its case at the bar of destiny our supreme need is to share Hugo Black’s devotion to the First Amendment and his intrepid defense of the people’s rights.
"The American covenant was solemnly inscribed on the hearts of our ancestors and on the doorposts of our political history. It is a covenant of freedom, justice and human dignity. Through keeping it in a quarter-century of judicial decisions he has proved himself a great jurist. Through keeping it in all the transactions of our public life, we can prove ourselves a great and enlightened nation.”
After this most impressive introduction, Professor Cahn recalled a lecture that Justice Black had delivered two years before in which he had stated, “It is my belief that there are ‘absolutes’ in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be ‘absolutes.’”
Cahn began the interview by asking the Supreme Court Justice to explain what he had meant by this, to which Justice Black replied, “I believe the words do mean what they say. I have no reason to challenge the intelligence, integrity or honesty of the men who wrote the First Amendment.* Among those I call the great men of the world are Thomas Jefferson, James Madison and various others who participated in formulating the ideas behind the First Amendment for this country and in writing it.
[*The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”]
“…The beginning of the First Amendment is that ‘Congress shall make no law.’ I understand that it is rather old-fashioned and shows a slight naivete to say that ‘no law’ means no law. It is one of the most amazing things about the ingeniousness of the times that strong arguments are made, which almost convince me, that it is very foolish of me to think that ‘no law’ means no law. But what it says is ‘Congress shall make no law respecting an establishment of religion,’ and so on.
"I have to be honest about it. I confess not only that I think the Amendment means what it says but also that I may be slightly influenced by the fact that I do not think that Congress should make any law with respect to these subjects.
"Then we move on, and it says, ‘or prohibiting the free exercise thereof.’ I have not always exercised myself in regard to religion as much as I should, or perhaps as much as all of you have. Nevertheless, I want to be able to do it when I want to do it. I do not want anybody who is my servant, who is my agent, elected by me and others like me, to tell me that I can or cannot do it.
”…Then I move on to the words ‘abridging the freedom of speech or of the press.’ It says Congress shall make no law doing that. What it means—according to a current philosophy that I do not share—is that Congress shall be able to make just such a law unless we judges object too strongly. One of the statements of that philosophy is that if it shocks us too much, then they cannot do it. But when I get down to the really basic reason why I believe that ‘no law’ means no law, I presume it could come to this, that I took an obligation to support and defend the Constitution as I understand it. And being a rather backward country fellow, I understand it to mean what the words say. Gesticulations apart, I know of no way in the world to communicate ideas except by words. And if I were to talk at great length on the subject, I would still be saying—although I understand that some people say that I just say it and do not believe it—that I believe when our founding fathers, with their wisdom and patriotism, wrote this Amendment, they knew what they were talking about. They knew what history was behind them and they wanted to ordain in this country that Congress, elected by the people, should not tell the people what religion they should have or what they should believe or say or publish, and that is about it. It says ‘no law,’ and that is what I believe it means.“
Professor Cahn then mentioned that some of Justice Black’s colleagues believe it is better to interpret the Bill of Rights so as to permit Congress to take what it considers "reasonable steps” to preserve the security of the nation even at some sacrifice of freedom of speech and press and association, and he asked the Judge’s view of this.
Justice Black replied: “I fully agree with them that the country should protect itself. It should do whatever is necessary to preserve itself. But the question is: preserve what? And how?
”…I want it to be preserved as the kind of government it was intended to be. I would not desire to live in any other place where my thoughts were under the suspicion of government and where my words could be censored by government, and where worship, whatever it was or wasn’t, had to be determined by an officer of the government. That is not the kind of government I want preserved.
“I agree with those who wrote our Constitution, that too much power in the hands of officials is a dangerous thing. What was government created for except to serve the people? Why was a Constitution written for the first time in this country except to limit the power of government and those who were selected to exercise it at the moment?
"My answer to the statement that this government should preserve itself is yes. The method I would adopt is different, however, from that of some other people. I think it can be preserved only by leaving people with the utmost freedom to think and to hope and to talk and to dream if they want to dream. I do not think this government must look to force, stifling the minds and aspirations of the people. Yes, I believe in self-preservation, but I would preserve it as the founders said, by leaving people free. I think here, as in another time, it cannot live half slave and half free.”
In response to a question about allowing full and sometimes sensational newspaper reports about a crime and the possible effect this might have upon a fair trial, Justice Black replied, “I do not myself think that it is necessary to stifle the press in order to reach fair verdicts…. I want both fair trials and freedom of the press. I grant that you cannot get everything you want perfectly, and you never will. But you won’t do any good in this country, which aspires to freedom, by saying just give the courts a little more power, just a little more power to suppress the people and the press, and things will be all right.”
Professor Cahn asked, “Is there any kind of obscene material, whether defined as hard-core pornography or otherwise, the distribution and sale of which can be constitutionally restricted in any manner whatever, in your opinion?”
To which Justice Black replied, “My view is, without deviation, without exception, without any ifs, buts or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write.
”…It is the law [because the courts have held that it is the law] that there can be an arrest made for obscenity. It was the law in Rome that they could arrest people for obscenity after Augustus became Caesar. Tacitus says that then it became obscene to criticize the Emperor. It is not any trouble to establish a classification so that whatever it is that you do not want is within that classification. So far as I am concerned, I do not believe there is any halfway ground for protecting freedom of speech and press. If you say it is half free, you can rest assured that it will not remain as much as half free. Madison explained that in his great Remonstrance when he said in effect, ‘If you make laws to force people to speak the words of Christianity, it won’t be long until the same power will narrow the sole religion to the most powerful sect in it.’ I realize that there are dangers in freedom of speech, but I do not believe there are any halfway marks.“
In conclusion Judge Black said, "The Bill of Rights to me constitutes the difference between this country and many others. I will not attempt to say most others or nearly all others or all others. But I will say it constitutes the difference to me between a free country and a country that is not free.
”…[The Bill of Rights] is intended to see that a man cannot be jerked by the back of the neck by any government official; he cannot have his home invaded; he cannot be picked up legally and carried away because his views are not satisfactory to the majority, even if they are terrible views, however bad they may be. Our system of justice is based on the assumption that men can best work out their own opinions, and that they [the opinions] are not under the control of government. Of course, this is particularly true in the field of religion, because a man’s religion is between himself and his Creator, not between himself and his government.
“I am not going to say any more except this: I was asked a question about preserving this country. I confess I am a complete chauvinist. I think it is the greatest country in the world. I think it is the greatest because it has a Bill of Rights. I think it could be the worst if it did not have one. It does not take a nation long to degenerate. We saw, only a short time ago, a neighboring country where people were walking the streets in reasonable peace one day and within a month we saw them marched to the back of a wall to meet a firing squad without a trial.
"I am a chauvinist because this country offers the greatest opportunities of any country in the world to people of every kind, every race, of every origin, of every religion—without regard to wealth, without regard to poverty. It offers an opportunity to the child born today to be reared among his people by his people, to worship his God, whatever his God may be, or to refuse to worship anybody’s God if that is his wish. It is a free country; it will remain free only, however, if we recognize that the boundaries of freedom are not so flexible; they are not made of mush. They say ‘Thou shalt not,’ and I think that is what they mean.
”…I am for the First Amendment from the first word to the last. I believe it means what it says, and it says to me, ‘Government shall keep its hands off religion. Government shall not attempt to control the ideas a man has. Government shall not abridge freedom of the press or speech. It shall let anybody talk in this country.’ I have never been shaken in the faith that American people are the kind of people and have the kind of loyalty to their government that we need not fear the talk of Communists or of anybody else. Let them talk! In the American way, we will answer them.“
As Time observed a few weeks ago, in reporting on three cases in which the Supreme Court overturned or amended its own previous decisions: "Ideally, the flow of U.S. law should run straight and true. In fact, it has countless twists and turns [and] often reverses its course….” It is our feeling that in its decisions of the last few years, under Chief Justice Earl Warren, the Supreme Court has moved the course of U.S. law closer to the original intent of our Constitution than at any previous time in history. While approving the High Court’s intent in putting an end to segregation in 1954, Life Magazine, nonetheless, expressed the opinion in an editorial that the decision was based more upon sociology than law. Life was not the only one to voice this view, but—in truth—just the opposite was the case. In reversing an earlier Supreme Court decision that had upheld the principle of “separate but equal,” the present Court re-established the guarantees and protections of the Constitution for a number of our citizens who for too long had been forced to live without them.
The High Court did the same in the three cases Time reported: “A VOTE FOR ALL. On four previous occasions…the Court had in effect declined to upset Georgia’s county-unit voting system. Under that system, politicians with rural backing have been able to hold state power even though they failed in winning a popular majority…. The Federal District Court judges ruled against it. The Supreme Court decision erased the system once and for all. In its opinion, the Court held that ‘the concept of political equality can mean only one thing—one person, one vote.’
"APPEAL FOR ALL. Amending its long-held principle that state prisoners may not turn to federal courts until all avenues of state appeal have been exhausted, the Court ruled that convicted murderer Charles Noia could be released from a New York State prison on a federal writ of habeas corpus. Two other men, convicted with Noia in 1942 for the same murder, appealed to the state that they had made confessions under coercion. They were released. But Noia waited until after the state time limit for such an appeal; a lower federal court therefore refused to entertain his petition. The Supreme Court ruled that its doctrine of ‘exhausting state remedies’ did not mean keeping a man in jail because of that sort of procedural fault.
"COUNSEL FOR ALL. By a unanimous vote, the Court ruled that the states, under the 14th Amendment, must provide free legal counsel to any person charged with a crime and unable to pay for his own lawyer. It thereby reversed its 1942 decision in Betts vs. Brady, in which it held that such aid is required only if the defendant is charged with a crime punishable by death.” The majority opinion stated: “In our adversary system of criminal justice, any person hauled into court cannot be assured a fair trial unless counsel is provided for him. This seems to be an obvious truth.”
The Supreme Court justice who wrote the majority opinion in the last case was Hugo Black, who was one of the three dissenters in the 1942 case.
In the same way, we hope that Justice Black’s minority opinion on the Constitutional guarantees of absolute freedom of religion, speech, press and association may become the opinion of the majority while Black is still serving his country and his fellow man as a member of the U.S. Supreme Court. It would be a fitting tribute if this American—whom Professor Edmond Cahn called a “torch” of “freedom, equality and social justice"—were the one to write the then majority opinion for the Court, re-establishing the full and absolute protections of the First Amendment.
Protecting the Young
The argument most often advanced for the suppression of certain ideas and images—especially sexual ones—is the protection of our youth.
It is not necessary to reduce the adult population of our nation to the level of children in order to protect the young, however.
The Supreme Court has ruled that it is illegal to censor literature on the basis that it may harm minors. In finding unconstitutional that section of the Michigan Penal Code which prohibited circulation of publications that might tend "to incite minors to violent or depraved or immoral acts,” Justice Felix Frankfurter spoke for the unanimous Court when he said: “The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig…. We have before us legislation not reasonably restricted to the evil with which it is said to deal…. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby curtails one of those liberties…that history has attested as the indispensable conditions for the maintenance and progress of a free society.”
Matters of religion and personal morality should rightly be the concern of the individual and his family, with one generation passing its own traditions on to the next, to be accepted, rejected or modified and passed, in turn, to the generation that follows. But if the champions of censorship are sincerely concerned with the moral upbringing of our country’s children—to the point that they are willing to override this American tradition—it should be pointed out that there are ways of accomplishing this end without curtailing the freedom of the adult population, ways that remain largely unexplored. The United States is, for example, one of the few major countries in the world that does not use some method of classification for its movies. England breaks down all motion pictures into three categories: A—adult films, which children under 16 may see only if accompanied by a parent or a bona fide guardian; U—approved for adults and children alike; and X—films to which no one under 16 is admitted under any circumstances. Books and magazines could be classified in the same way and a serious penalty invoked if a dealer sold an adult book or magazine to someone underage.
For television and radio, all programs before a certain hour could be produced for family consumption; but after the designated time, all restrictions would be lifted and the stations would be free to program uncensored shows for adults.
The fact that those who cry out for censorship in the name of our youth do not promote these more reasonable alternatives prompts us to suspect that invoking child welfare may be—as often as not—a subterfuge and what the would-be censors are really after is thought-control over our adult population.
The classification of all methods of mass communication into what is suitable for children, and what is not, is certainly no ideal solution. But it is preferable not only to official censorship, but also far better than any related kind of control introduced by the media themselves. The self-imposed restrictions of an individual writer, director, producer, editor or publisher are desirable, to be sure—and the acceptance of freedom from undue outside supervision leads naturally to the development of a more responsible and mature self-discipline the majority of the time; but industry-wide controls are not the same as individually imposed restrictions and we need look no further than Hollywood’s recent experiment in so-called “self-censorship” to see how thoroughly an entire industry can throttle its own freedom and creativity.
“Self-censorship” is usually imposed by a medium of communication to avoid outside pressures or the threat of actual outside censorship. It is rarely introduced to improve the medium or its product and, naturally enough, the medium and product are rarely improved. Such was the case in the Twenties, when the Hollywood filmmakers—fearing that growing national criticism of movie morals might prompt some form of government control—joined to establish what is now the Motion Picture Association of America and hired Will Hays, then Postmaster General, at an annual salary of $100,000 to become czar of the industry with power not only to regulate picture-making, but also to act as a sort of moral guardian over the private lives of the stars themselves.
Hays did his job only too well. A rigid Production Code was introduced in 1934 that gave seals of approval only to films that adhered to the most simon-pure standards. By defining morality as a lack of sex and swear words, Hays kept the movies out of controversy and, for the most part, totally removed from the real stuff of life. Suggestiveness replaced honest sexuality. The only bows to realism were violent crime films glorifying such cinematic gangsters as Scarface and Little Caesar. Not until Howard Hughes released The Outlaw in 1946, successfully introducing his new double-feature discovery Jane Russell without benefit of a Code seal, did any major film producer consider issuing a motion picture sans Association approval. Otto Preminger carried the fight for freedom further by releasing The Moon Is Blue (1953) and The Man With the Golden Arm (1957), both excellent films, without seals. The emergence of the independent Hollywood producer, who was outside major studio control, coupled with the increasing popularity of foreign films in America, supplied the coup de grâce to the old, unrealistic and inflexible Production Code. In 1961 the Production Code Review Board reversed its previous verdict on both of Preminger’s pictures and granted them each a seal.
The Supreme Court has had this to say about the effect upon freedom of not only censorship, but the very existence of the threat of censorship, which so hobbled Hollywood for a generation: “It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.”
It should be mentioned that in most of Europe it is not sex that primarily concerns those who classify the movies as suitable for children or only for adults, but scenes of crime, violence and brutality—the sort that enjoyed the widest distribution in the U.S. when sex was being most severely suppressed by the Hays Office during the Thirties. The point of view that depicting acts of amour on the screen is more harmful than acts of terror, violence and hate is peculiar to our own Puritan America. It is perfectly permissible to show one man destroying the life of another, but the creation of life is the prime target of the censor—whether it is the act of coition, banned everywhere, or the birth of a baby bison, which New York censors cut from a Walt Disney nature film.
This is the level of the sociological, theological and philosophical thinking that we bring to the Atomic Age and the terrifying task of coping with the destructive forces that our technological advances have produced. Nothing is more frightening to contemplate than the gap that exists between man’s social and scientific progress as we move into the second half of the 20th century. We are attempting to deal with the realities of the most complex of modern societies with a cultural sophistication rooted in superstitions some of which are more than 2000 years old.
Because the modern world does require such real sophistication and maturity, we do not personally favor any technique for raising our young that fails to fully equip them for adult life—so a classifying of our mass communication into categories for “adult” and “underage” consumption is suggested only as a far better answer than any continuation of the present tendency to bring even our adult society down to the level of the child. The suggestion is made, also, to emphasize that more reasonable alternatives than totalitarian thought-control do exist—if we insist upon this “protection” for our offspring—so as to reveal to the cold light of logic the true motives of many who cry out for censorship over all, to save from “harm” (knowledge) the young and immature.
Let’s now consider the virtues of censorship for children. Before seriously advocating a desexualized, sanitized, cellophane-wrapped society for our youngsters, we should seriously weigh the opinions of child psychologists and experts in juvenile behavior. They seem unanimous in their belief that an overly protected child will find it more difficult adjusting to an adult society after he is grown. A youngster who is reared in an environment sufficiently removed from the real world may never fully mature and become capable of accepting the responsibilities of adult life.
On the other hand, what are the dangers inherent in a young and impressionable mind being allowed to mature naturally as a part of an adult society? Will frankly adult books, magazines, and motion pictures tend to lead a child into patterns of antisocial and delinquent behavior? There is no evidence to suggest that this is so.
Drs. Sheldon and Eleanor Glueck, leading specialists in the field of child behavior, published in 1950 the results of 10 years' research into the causes of juvenile delinquency of 1000 boys in the Boston area. In the 399 pages of what has been termed a “classical study,” the subjects of pornography, or of the reading or viewing of erotic materials of any kind, are never even mentioned as contributory or causative factors in delinquency.
In the same vein, a prominent children’s court judge, George S. Smyth, of New York, informed an inquiring state commission that of 878 causative factors which troubled children, reading was not on his list, but that difficulty in reading was.
The Brown University Psychologists Report, commenting on a series of statements linking delinquent behavior to obscenity, called attention to a series of similar scientific studies and statements disputing any correlation between obscene material and the antisocial activity of children, including a recent comprehensive report on 90 cases of delinquency by Mitchell in the Australian Journal of Psychology. The study reported such complex conditions as personal tension, defective discipline, insecurity, lack of home guidance and emotional instability as the prime contributors to delinquency and the Drs. Kronhausen point out that “all of these factors refer to deep-seated emotional problems and disturbances in interpersonal relations, in comparison to which the reading of [sexual materials] or even ‘hard-core obscenity’ appears a rather trifling surface concern.”
Another report, based on research in the United States, presented at roundtable conferences headed by Dr. Benjamin Karpman at two annual meetings of the American Orthopsychiatric Association, concluded that there are three major causes of delinquency: (1) organic brain damage; (2) faulty relations in the family unit; and (3) social dislocation. Once again there was no mention of the viewing or reading of salacious or obscene materials and Dr. Karpman has expressed the belief that, contrary to popular misconception, contact with obscenity tends to curb antisocial behavior rather than foster it, by offering an outlet for abnormal sexual interests.
Dr. Wendell Sherman of the University of Chicago has stated: “I have never seen one instance of a child whose behavior disturbance originated in the reading of books, nor even a case of a delinquent whose behavior was exaggerated by such reading. A child may ascribe his behavior to a book he has read or a movie he has seen. But such explanations cannot be considered scientific evidence of causation.”
Edwin J. Lucas, director of the Society for the Prevention of Crime, has stated: “I am unaware of the existence of any scientifically established causal relationship between the reading of books and delinquency. It is my feeling that efforts to link the two are an extension of the archaic impulse by which, through the ages, witchcraft, evil spirits and other superstitious beliefs have in turn been blamed for antisocial behavior.”
Dr. Robert Lindner, noted psychoanalyst and author (The Fifty-Minute Hour, Rebel Without a Cause), specialist in the treatment of juvenile offenders, has said: “I am utterly opposed to censorship of the written word, regardless of the source of such censorship or the type of material it is directed against. As a psychoanalyst who has had more than a decade of experience with the emotionally disturbed, and especially with delinquents, I am convinced of the absurdity of the idea that any form of reading matter…can either provoke delinquent or criminal behavior or instruct toward such ends…. I am convinced that were all so-called objectionable books and like material to disappear from the face of the earth tomorrow this would in no way affect the statistics of crime, delinquency, amoral and antisocial behavior, or personal illness and distress. The same frustrating and denying society would still exist, and both children and adults would express themselves mutinously against it. These problems will be solved only when we have the courage to face the fundamental social issues and personal perplexities that cause such behavior.”
Drs. Eberhard and Phyllis Kronhausen have written, on the subject of “Psychological Effects of Erotic Literature”: “It is our view that instead of the comics, ‘lewd’ magazines or even hard-core pornography causing sex murders, or other criminal acts, it is far more likely that these ‘unholy’ instruments may be more often than not a safety valve for the sexual deviate and potential sex offender. This is not only our own view, but that of many other experienced clinicians, especially among those who have worked with more severely disturbed patients and delinquents.”
In The Playboy Panel on “Sex and Censorship in Literature and the Arts” (Playboy, July 1961), we commented that one of the evils of pornography, according to James Jackson Kilpatrick, in his book The Smut Peddlers, is that “when a youth accepts the idea of sex without love he is stained inside.”
To which Judge Thurman Arnold replied: “Sounds like gobbledygook to me. I don’t know what he’s talking about.” Film producer Otto Preminger said, “It is an old-fashioned point of view, in my opinion. We know very well that sex without love exists—only hypocritical people can say that nobody has sex without love or that nobody should have sex without love.” Author-publisher Ralph Ginzburg observed, “Is Mr. Kilpatrick trying to suppress sex without love? Is that what he is trying to do indirectly by getting at pornography? Well, I think he’s got a great big job ahead of him, even after he gets rid of all the pornography.”
Maurice Girodias, editor-publisher of Olympia Press, of Paris, said, “Protecting children against moral corruption has always been the last-resort argument of the champion of censorship. It is the weakest and the most idiotic justification invoked to suppress books written for adult readers. Mr. Kilpatrick’s remark is too elliptical not to be misleading. Sex is the primary agent of love between males and females. Should we hide the fact from young people? Should we teach them that sex is corrupting in some cases, and not in others? Then I leave to Mr. Kilpatrick the task of explaining to our young friends what is sex and what is love, when sex is just sex and when sex is sex with love. Such guidance will probably make the whole continent frigid, but that shouldn’t bother Mr. Kilpatrick.
"Seriously, if we want to restore mental sanity to our world, we must first of all save the young from the lies and hypocrisy inherited from the generations of Puritans. Modern man must find his path in a world which has become infinitely dangerous and dense. Our society will only survive if it starts producing individuals endowed with full freedom of judgment; we do not need an elite of specialized thinkers, but positive and personal thinking at every level. Those children that Mr. Kilpatrick is so concerned about are not corrupted by bad books. I don’t think they are interested in books, or pornography, which is a game for adults. If they feel they were born in a dry, cold and hopeless world, this can not be corrected by more censorship.”
The Sexual Nature of Man
Those who favor censorship are often motivated by what they believe to be the best principles. We have government agencies to ban harmful foods and medicines—why not do the same thing with “harmful” art and literature, they reason. What they fail to recognize is that a bad food or drug is a matter of indisputable fact, but a “bad” book or movie is a matter of taste and opinion, and nothing more. And in our free society, we are fundamentally opposed to the suppression of ideas with which we do not agree, or the forcing of our own ideas onto others. The fact that the bulk of scientific and enlightened opinion favors the dissemination of frankly sexual and erotic material for the mental health and well-being of our society is beside the point, for no one is forced to buy or read the book that does not please him, or attend the movie or watch the television program that offends his personal sensibilities. We are left the freedom of choice, as we should be in a free society, without the specter of censorship hanging over us.
Those who fear and oppose the erotic in our literature and art do so because of personal repressions and feelings of frustration, inadequacy or guilt regarding sex. They are unwilling to accept the basic sexual nature of man. Literature and art are a mirror in which man sees his own reflection. Only a man who carries the obscenity within him will see the obscenity in a book, a painting or a photograph. If you find the obscene in a work of art or literature, or in life itself, you have manufactured the idea of obscenity yourself. And you have no one to blame but yourself for having made it obscene. If it is true that “beauty is in the eye of the beholder,” one must accept its logical corollary, that ugliness is, too.
What the antisexual amongst us do not recognize is that they themselves are the major perpetuators of pornography. Most deliberate pornography has little enough artistic merit to commend it. It persists in a society where prudishness and hypocrisy are the rule. Editor-Publisher Girodias was quoted in The New York Times Book Review as saying: “The publication of pornography is a defensible, even a socially useful undertaking.” We asked him, in The Playboy Panel, to explain what he meant by this.
Girodias answered by reading something he had written in a letter published in the London Times Book Supplement a short time before: “What is known as pornography is a simple and elementary reaction against an age-old habit of mental suppression, of deliberately conditioned ignorance of ‘the facts of life.’ True, pornography is a very crude and excessive form of protest—but the very intensity of the protest proves that it is not gratuitous, and that there is a deep and general need for free expression which is still far from being gratified. In other words, contrary to current belief, pornography is simply a consequence of censorship. Suppress censorship and pornography will disappear.”
The very attempt to ban a book will create an interest in it that the book may not deserve; the would-be censor may thus do more to promote the sale of salacious material than curb it. If the censor could be counted upon to only publicly damn worthwhile books, his existence might almost be justified for creating considerable public curiosity in good literature that would not otherwise be so widely read (no one can doubt that Vladimir Nabokov’s delightful Lolita found her way into hundreds of thousands of additional American homes, because of the hue and cry created over her by the blue noses). But, unfortunately, the censor has never been particularly noted for his ability to discern between the erotic wheat and the salacious chaff—partly, we suspect, because the distinction is of no real importance to him. He may come up with a work of real literary merit one month and a piece of trash the next—and give them both the same publicity. No, the censor really can’t be counted upon as a dependable guide to our reading habits. He would have us reading many of the right books, but for the wrong reasons; as well as many of the wrong books, for the right reasons.
The antisexual in our society so fail to understand the true sexual nature of man that they try to suppress what is insuppressible. In so doing, they hurt society in three distinct ways.
1. The censor curtails our freedom. As we have seen, censorship attempts to thwart our God-given and Constitutionally guaranteed rights to freely use our own minds and bodies, so long as we do not impair the similar rights of others: the right to speak and write our own ideas—whatever those ideas happen to be—and to accept (or reject) the ideas expressed by others, equally free; the right to worship our own God, in our own way—or no God at all, if it suits us; the right to associate with whomever we choose, whenever we choose—without fear or prejudice of others.
2. The censor attempts to control our thoughts. By limiting our speech and press, by disapproving certain words and ideas, the censor in fact tries to practice thought control. In his book 1984, George Orwell demonstrated how it is possible to actually control thought through the censorship of words. In Orwell’s society of the future, the political party in power is called Ingsoc (for English Socialism), with Big Brother as its leader (“Big Brother is watching you!”). The Ingsoc had created a new language, called Newspeak, to serve its political ends: Orwell had the following to say about Newspeak: “The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. It was intended that when Newspeak had been adopted once and for all and the Oldspeak forgotten, a heretical thought – that is, a thought diverging from the principles of Ingsoc – should be literally unthinkable, at least so far as thought is dependent on words…. To give a single example. The word free still existed in Newspeak, but it could only be used in such a statement as ‘This dog is free from lice’ or ‘This field is free from weeds.’ It could not be used in its old sense of ‘politically free’ or ‘intellectually free,’ since political and intellectual freedom no longer existed even as concepts, and where therefore of necessity nameless. Quite apart from the suppression of definitely heretical words, reduction of vocabulary was regarded as an end in itself, and no word that could be dispensed with was allowed to survive. Newspeak was designed not to extend but to diminish the range of thought, and this purpose was indirectly assisted by cutting the choice of words down to a minimum.”
Orwell described how this censorship of language could affect the concept of sex for a person living in this future society: “His sexual life, for example, was entirely regulated by the two Newspeak words sexcrime (sexual immorality) and goodsex (chastity). Sexcrime covered sexual misdeeds whatever. It covered fornication, adultery, homosexuality, and other perversions, and, in addition, normal intercourse practiced for its own sake. There was no need to enumerate them separately, since they were all equally culpable, and, in principle, all punishable by death. In the C vocabulary, which consisted of scientific and technical words, it might be necessary to give specialized names to certain sexual aberrations, but the ordinary citizen had no need of them. He knew what was meant by goodsex – that is to say, normal intercourse between man and wife, for the sole purpose of begetting, and without physical pleasure on the part of the woman; all else was “sexcrime.”
Orwell’s 1984 is a work of fiction – a tale of horror that prophetically envisions the end results of totalitarianism. It seems far removed from present-day America, but it is actually closer in some respects than most of us may realize. Consider how limited are the socially acceptable words for sex. In addition to medical and technical terms, there are literally dozens of common English words to describe the sexual parts of the human body and every form of sexual activity, but all of them are considered objectionable or obscene. It is virtually impossible to describe a pleasurable sexual experience in personal conversation without having to resort to unromantic medical terms or, alternatively, to words with such obscene connotations that they permeate the telling with a prurience that may not have been present in the act itself.
And don’t we have the equivalent of Newspeak’s goodsex and sexcrime in the U.S. today? Isn’t "normal” intercourse within marriage the only sexual activity society considers acceptable and right; isn’t any other sexual activity between a man and wife, as well as all sex between those not married, considered immoral and wrong? Many states have actually made any other sexual activity, between those married or unmarried, illegal. And when the state legislators wrote the laws concerning sexual activity other than “normal” intercourse, one might almost assume they were limited in their language to some colorful version of Newspeak, so incapable were they of bringing themselves to specifically name or describe the activity they wished to ban. Consider this statute from the Criminal Code of the State of Rhode Island, Chapter 10, Section 11-10-1: “Abominable and detestable crime against nature. – Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned not exceeding twenty (20) years nor less than seven (7) years.“
A number of the states have similar statutes prohibiting any "crime against nature,” but the term is almost never defined, and those states that have attempted a definition do not always agree with one another. A few look for a reasonable definition within the phrase itself, a “crime against nature, with mankind or animal” might seem to refer, in the first instance, to going out with a neighbor and cutting down a Christmas tree in the state park or, in the second, shooting deer out of season, but we have reason to believe that isn’t what the lawmakers had in mind. The colorful nature of the adjectives “abominable and detestable” leads us to suspect that what they were referring to probably has something to do with sex, since only sex comes in for such vague and emotion-tinged language in our laws. Whether Arizona’s “infamous” crime against nature is the same as Rhode Island’s “abominable and detestable” crime, we’re not sure, but in any case, it would probably be wise to do your Christmas-tree chopping somewhere else.
Abominable, detestable, or just plain infamous, a “crime against nature” is usually a catchall to include any sexual activity other than intercourse of which the legislators, the courts and the law enforcement officers do not approve. And what is often not recognized, even by many of those practicing law, is that none of these statutes make any distinction between the married and unmarried. We have commented before that our archaic religious teachings have pitted man’s body and spirit against one another, whereas common sense would suggest that God intended the body, mind and spirit of man to be in harmony.
But the world of words reveals most clearly how, even without Newspeak, we have been taught that the spiritual, religious, Godly side of man is in opposition to sex, the body and material accomplishments and pleasures. Consider these definitions in the Second Edition of Webster’s New International Dictionary:
Spiritual is defined as pertaining to, or consisting of, the spirit; not material; of, or pertaining to, the moral feelings or states of the soul; pure, holy, divine; of or pertaining to sacred things of the church, or religious affairs; the opposite of spiritual is, according to Webster’s, carnal.
Carnal is defined as fleshly, bodily, sensual, sexual, animal, flesh-devouring, bloodthirsty, unregenerate, worldly, material, temporal, secular; the antonym of carnal is listed as spiritual. The opposite of intelligent is stupid; the mind of man is seen only in qualitative opposition to itself. How curious then that the opposite of spiritual should be carnal; with the spirit and body of man opposing one another.
The definitions of these words are in our dictionaries, because centuries of common usage have put them there. What strange sort of religion have we evolved that places the Godly part of man in opposition to the whole of his physical being? In simple theological truth, are not heaven and hell opposites, rather than heaven and earth? Is it not the devil who is opposed to God, rather than man’s mortal flesh? The devil can exist as easily in the mind of man as in his body; and there are times when he takes control of the spiritual side of man, as well. How else can the religious among us explain the Inquisition and the countless horrors perpetrated by organized religion down through history? But built into our very language are these man-made conflicts which torture and torment us and destroy the natural God-intended unity of mind, body and spirit. The whole man is not confronted with a choice among the three – or between any two of them. Perhaps in this lies the wellspring of his humanity.
3. The censor impairs our mental health and well-being. By suppressing the frankly sexual speech and writing that embarrasses and disturbs him, the censor unwittingly eliminates an emotional outlet that, most authorities agree, is healthful for society.
What is more, the censor so little understands the nature of the thing he is about that he usually attacks first the more positive aspects of our sexual literature and art. The book, magazine or movie that equates sex with sin and suffering is less apt to bring down the censor’s wrath than one that makes sex seem pleasurable or appealing, for the former can be said to have a “moral.” That the seeming “moral” is in actuality an abnormal and quite unhealthy association between sexual activity and ugliness, grief and guilt seems to matter not a bit to the censor. He is thus quite successful in projecting his own negative attitudes toward sex onto the rest of society.
The sexual content of the stories and articles in the family and women’s magazines over the past 30 years has invariably been of this negative variety, as was pointed out with such hilarious effectiveness in the now near-classic Playboy article, The Pious Pornographers, by Ivor Williams (October 1957).
And we are all familiar with the “Stella Dallas” syndrome with which Hollywood suffered throughout most of the Thirties and Forties, when Will Hays' Production Code required all cinematic sexual intemperance to end in disaster: If the heroine allowed herself a night of sexual dalliance with the hero in the first reel, the moviegoing public knew that not only would the next scene be a teary-eyed discovery that she was pregnant (or better still, a cut directly to a scene in the maternity ward), but the rest of the picture would be one long series of heartbreaks and suffering, in which the hero conveniently became unavailable (death in the war or betrothal to another were usually preferred), the heroine was forced to give up the child (“It’s for the baby’s own good – you’ve got to think of him [her] now….”) and the heroine became destitute, an alcoholic, threw herself under a train or died of pneumonia (from walking in the rain without any coat, hat or galoshes) – or a clever combination of all four.
It is not difficult to understand why the censor attacks sex that is depicted as happy and healthy and leaves sex that is sick, suffering and sin-ridden pretty much to itself. Why the censor is more apt to attack heterosexual sex than homosexual or other deviate sex might require a deeper probing of the censorial psyche, however. Perhaps it is simply that the average censor is too naive about the subject he has chosen as his specialty to recognize the often more subtle projections of sexual perversion in the public print.
Whatever the reason, the censor goes his merry way blithely banning magazines that contain photographs of female nudes, while overlooking a number of the “health and strength,” “body-building” and “muscle” magazines that are tailored to the tastes of the homosexual. The censor expunges a movie’s scenes of sexual love-play between a boy and a girl, but passes by the scenes of violence with sadomasochistic overtones. For many years before Robert Harrison made his bundle with Confidential, through the public exposure of the private lives of celebrities, he published a series of so-called “girlie” magazines that conscientiously catered to fetishists (offering sexual stimulation to the pervert with photography of models thoughtfully posed in unusually high heels, boots, lace undergarments, long hair, rubber rainwear), sadists and masochists (with spanking, whips and scenes of torture and gore), transvestites, lesbians and male homosexuals (with pictures of women dressed as men and vice versa) and other deviates – all with relative impunity, because his female models were never without their bras and panties. If they had been nude, you see, they might have appealed to normal heterosexual instincts in man – and that’s what the prudes and censors are apparently against. And if the models happened to be attractive in both face and figure, fresh, healthy and well-scrubbed in appearance, and appealingly posed and photographed – then the citizenry should become really outraged, because such a picture not only appeals to the heterosexual side of man, it gives the sexual response a clean and wholesome quality that suggest sex may indeed be a thing of beauty and joy.
The censor fails to comprehend that sexual responsiveness can be conditioned to a variety of stimuli in human society just as Pavlov conditioned his dogs to salivate at the sound of a bell. If we remove the primary heterosexual sources of stimulation from society, or through practiced propagandizing make an individual feel guilty about his natural responsiveness to such stimulation, then he will affix his responses to something else – other men, perhaps, or perhaps a shoe or a bit of lace underwear. This is the kind of sickness that the unknowing censor can bring to society. This is what the Drs. Kronhausen meant when they wrote, “All clinical evidence indicates that guilt-based sexual inhibitions, restrictions and repressions result in perversions of the sexual impulse, general intellectual dulling, sadomasochistic inclinations, unreasonable (paranoid) suspiciousness, and a long list of neurotic and psychotic defense reactions with unmistakable sexual content or overtones.”
Playboy and Pornography
It should be clear to even the casual or occasional reader of Playboy that our arguments for a more liberal, censor-free society are not, in any sense, a defense of this magazine of prompted by any commercial self-interest. To the contrary, a freer, less taboo-ridden, less hypocritical society would probably have less interest in (and less need for) the rebel part of Playboy’s personality. (Though we do like to think that our overall editorial excellence would retain for us the majority of our present readers.)
Our own more serious censorship concerns are now many years behind us and an easing of the censor’s tight control would only bring to wider distribution and sale a host of bolder imitators of this publication that have long been a bane to our existence and a source of not a little embarrassment (for they make more difficult, the explanations – to those who do not read us and know us only by reputation - - of what Playboy is really all about and what sets it apart amongst present-day magazines in America).
Nor would Playboy change very much in such a censor-free society. The magazine has never attempted to push to the outer boundaries of what was censorable or what could be considered objectionable by the more sophisticated part of our society. We have always chosen to set our own standards of taste and propriety, and to communicate with that number of other urban fellows whose view of life is similar to our own.
Our interest in a society free of the shackles of censorship is as a citizen who believes he will be happier living in an America in which all men are allowed to exercise full freedom of speech, of press, of religion and of association. It is the kind of America we believe in. It is the America our founding fathers meant us to have. We believe we should have it.