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.)