Pornography vs. Obscenity

GARY GROTH: Can you tell me why the First Amendment has not traditionally protected pornography?

NADINE STROSSEN: The First Amendment actually does protect pornography. Pornography is not a legal "term of art." Pornography simply means any expression, that is, words or pictures, that are intended to be sexually arousing. And that is Constitutionally protected. What you're thinking of is what the Supreme Court has defined as "obscenity." And that is a legal term for one subcategory of pornography that does not have Constitutional protection, according to the Supreme Court. But obscenity is, as I say, a subcategory of sexually oriented or arousing expression.

You're probably familiar with this three-part definition of obscenity: The first part is that it has to appeal to the prurient interest in sex, which the Supreme Court has defined as meaning a "shameful and morbid" interest in sex, as opposed to a "normal and healthy" interest in sex. The second part is that it has to be a patently offensive depiction or description of sexual or excretory organs or conduct that is specifically defined in the applicable law. And the third part -- and this is the saving clause that really makes it very hard for anything to be convicted of an obscenity charge -- and that is, that it has no serious literary, artistic, political, or scientific value.

By the way, those first two criteria are defined according to local community standards. The third prong, however, is defined according to a national standard. So that is why, for example, in the 2 Live Crew prosecutions in Florida a few years ago, or the Cincinnati Center for Contemporary Arts involving the Mapplethorpe exhibit a few years ago, those defending against the obscenity charge bring in nationally renowned experts on art or music, and the jury pretty much defers to them. It's very, very hard to show that something satisfies that appropriately narrow definition of obscenity.

Believe me, I think that the whole concept is illegitimate, and there shouldn't be any category of pornography or sexual expression that doesn't receive Constitutional protection. But it's important to recognize that in principle, the court has tried to carve out a fairly small subcategory of it, and in practice it's very hard for a prosecutor to successfully bring a charge of obscenity and make it stick all the way through to appeal.

GROTH: The three-prong criteria you're citing is the Miller ruling?

STROSSEN: Exactly. Miller v. California. The court has elaborated on a few aspects of it since then, but basically the test has stayed the same since 1973. But when most people use the term "pornography" interchangeably with "obscenity," I think it's very important to recognize the legal distinction. Most sexually oriented expression is absolutely Constitutionally protected, including anything that would be defined by the term "pornography" and anything defined by the term "indecency," which is the term that Congress has used in the Communications Decency Act. The whole reason that Congress used the term "indecent" and "patently offensive expression," which are the key terms in that law, was because they deliberately wanted to go beyond unprotected obscenity, and make an even broader category of sexually oriented expression, unprotected in cyberspace. But I think that's going to be a losing argument, quite frankly.

GROTH: How does cyberspace affect the community standards part of that criteria?

STROSSEN: You're probably familiar with the one case that has addressed that issue, which unfortunately we lost in what I think was a very poor ruling by the 6th Circuit Court of Appeals: The Thomas case, which was prosecuted in Memphis, Tennessee. It involved a bulletin board that was located geographically in Milpitas, California, and operated on a subscriber-only basis by a husband and wife couple. But, posing as a subscriber, a U.S. postal inspector chose to download the images in Tennessee -- no coincidence. In the '70s, when there was a prosecution against Deep Throat, which was being shown all over the country, it's not a coincidence that the place where the government chose to prosecute was also Memphis, Tennessee. They deliberately chose what they thought would be the least tolerant community with the most restrictive community standards.

GROTH: And the prosecution won that computer case, didn't they?

STROSSEN: Sure enough. In the Thomas case, the jury did convict on obscenity charges, and we, as well as other free speech organizations, argued on appeal that this notion of community standards defined in terms of a geographical community makes absolutely no sense in cyberspace. The rationale for having a community standard is to protect physical space; that parents should be assured that their child is not going to be confronted when walking down the sidewalk with some lurid image that is inconsistent with the local standard in that physical, geographical area.

It's completely irrelevant what somebody happens to be downloading from cyberspace in his living room in Memphis, because you're not confronting the problem of the unwanted, unsuspecting physical confrontation which is the rationale for local community standards -- not that I support that anyway. But even the rationale for enforcing community standards when you're talking about physical representations is completely beside the point when we're talking about electrons passing through space that are not visible or palpable to anybody in Memphis, Tennessee -- unless they affirmatively chose to subscribe to that bulletin board and to download it.

So I think that the actual community that you're talking about in cyberspace are those adult subscribers who volunteer to see these images. By definition, that is going to be a community which does not find this material to be patently offensive. So I think that when you're talking about these voluntary adult, subscriber-only bulletin boards, the whole concept of obscenity, let alone geographical community standards, just doesn't make any sense at all. Unfortunately we lost that argument in the 6th Circuit, and I don't know whether the Supreme Court is going to hear the case.

GROTH: I assume you're trying to appeal it?

STROSSEN: I wouldn't make that assumption, Gary. First of all it won't be us, it will be the lawyer who was representing the bulletin board operators. We were only filing a friend of the court brief. And that's not necessarily an easy strategic judgment with this Supreme Court; the question is, do you want to take the risk that what is now a bad precedent for one part of the country could well be extended to a bad precedent for the entire country? My own view on that, as a First Amendment expert who has followed the Supreme Court very closely, is that I think this court is very good on free speech. Clarence Thomas, as well as the other extreme so-called conservatives on the court, follow what I think is a respectable conservative tradition of saying it is none of the government's business what images or words people choose to look at in the privacy of their own homes. I would feel as comfortable with him and Scalia and Kennedy, all of whom have consistently voted very well on free speech issues, as I would with the so-called liberals on the court. So if it were up to me, I would take that risk.

GROTH: Rehnquist was conspicuously absent from your list.

STROSSEN: Yes, yes. Rehnquist is one of those -- the term "conservative" is used in so many different ways -- and Rehnquist is definitely an authoritarian conservative who has ruled that the government has the power to restrict expression, including sexually explicit expression, merely because it is morally offensive to the majority in a particular community. That was his rationale in a nude dancing case from Indiana a few years ago. So on that kind of paternalistic majoritarian view, of course Rehnquist did vote the wrong way on the flag burning cases where Scalia and Kennedy were on the free speech side. So Rehnquist is an authoritarian conservative, and at least on free speech issues, Thomas and Scalia and Kennedy seem to be libertarian conservatives. But you add them together with Souter and Breyer and Ginsburg and Stevens, and there's a clear majority.

With respect to obscenity, as you already indicated, the court hasn't really substantially revisited the basic approach to obscenity since 1973, and there has been an entire turnover in its personnel since then. But in a 1986 decision, in a concurring opinion, Scalia said we ought to, at some time, take another look at this area of the law. The so-called standards really come down to a matter of taste, and just as there's no use arguing about taste, there's no use litigating about it. And he was the one who wrote the majority opinion in the cross-burning case a couple of years ago in which he very firmly emphasized this principle of content or viewpoint neutrality, that the government may never restrict or censor speech because the majority disagrees with or is offended by the viewpoint or the content of the speech, and yet that is exactly the essence of obscenity law. That's what "patently offensive" is all about.

GROTH: Let me get back to my original question which was, how could the First Amendment be interpreted to exclude what the court defines as obscenity?

STROSSEN: I don't understand it. Because the people who take that position are people who say that they are faithful to the words, they say that they are interpreting the Constitution from a very conservative perspective. That is, you look at the plain language and the original intent. I regularly debate Ed Meese on this subject, and you may remember when Ed Meese was Attorney General, he was going around the country on a crusade, giving speeches to the American Bar Association and so forth, in which he was saying the Constitution has to be interpreted according to its plain language and original intent. Well, as you well know, there's nothing in the plain language of the First Amendment that makes an exception for sexually oriented speech, no matter how supposedly narrowly you define that. Nor is there language in the First Amendment that suggests that the only kind of speech that gets full Constitutional protection is speech related to politics or matters of public affairs. But that is the argument, however, that is made by those who read into the Constitution an exception. They say, "The intent was to only address speech that was important to political matters." That argument is made by so-called liberals like Cass Sunstein, as well as conservatives. I think it's just completely unjustified by history as well as by logic.

First of all, historically it's very clear, as Justice Douglas said in his dissenting opinion in one of the court's early obscenity cases, that the First Amendment was the product of a "robust" not a "prudish" age. And as we well know, gentlemen in that era paid a lot of money for a lot of sexually explicit materials, and therefore they were familiar with the fact that it existed, and it's not as if this was not within their realm of contemplation. They could well have used narrower language had they wanted to make it clear that they were only looking at politically oriented speech.

That supposed distinction between sexually oriented expression and expression that relates to public affairs or political issues is also absolutely incoherent as a logical matter when we have so many extremely important political issues that revolve around sex and sexual expression -- everything from gender based discrimination, to sexual harassment, to reproductive freedom, to contraception, to AIDS and other sexually-transmitted diseases, to sex education in the schools, to discrimination against lesbians and gay men. These are some of the most hot button -- no pun intended -- political issues. And they directly relate to sex and sexually oriented expression, and yet they are crucially important to the most primary issues of human rights and of government policy.

There is no distinction between the sexual and the political. Ironically, that is one of the insights with which I agree, which was provided by my opponents in the feminist debate about pornography. Those feminists who want to censor what they call pornography deliberately use that term because it doesn't now have a legal meaning, and they're proposing to assign to it a new legal definition of a new category of new sexual expression that should be unprotected. Basically it's sexually explicit expression that is demeaning or subordinating or degrading to women. But they have argued that the sexual is political, the personal is political; that pornography as they define it leads to discrimination and violence against women. Well, that suggests that it has deep political significance. That suggests a reason why, under the arguments of Cass Sunstein or Ed Meese, it should be protected.

GROTH: And by their own definition, they can't have it both ways.

STROSSEN: Exactly. Which is why they want to reconceptualize it and they would be the first to admit that what they are calling for is a radical restructuring of our whole understanding of free speech. They would reject the notion of content and viewpoint neutrality. So it's not at all a modest proposal. It is completely shattering our whole traditional concept of free speech and individual rights.

Origins and Absolutes

GROTH: You said you didn't understand this yourself, but I'm curious as to how the porous intellectual interpretation of obscenity has achieved such an impervious tradition.

STROSSEN: How could I understand how the Supreme Court could do it? Because our history is fraught with implied exceptions to the plain language of the First Amendment as well as other Constitutional rights. I think that the whole reason it was necessary to add a Bill of Rights to the Constitution is why it's a constant struggle to have it actually respected and enforced and implemented: the potential "tyranny of the majority," to quote James Madison. The Bill of Rights is an inherently counter-majoritarian instrument. It is to protect unpopular and powerless and marginalized individuals and minority groups from the majoritarian popular decisions made through our elected branches of government. But since the elected branches of government have a great deal of influence over who is in the position to interpret the Constitution, it's not surprising that we get judges and justices who read exceptions into the Constitution. Those pressures couldn't be more obvious in the current political climate, to wit federal judge Harold Baer in New York, despite his lifetime tenure, saying he got it wrong when he interpreted and enforced the Fourth Amendment in a controversial search and seizure case. I'm sure you're familiar with the fact that he had been attacked by Dole and Clinton. So that's what does it.

There has been tremendous political pressure to find exceptions to Bill of Rights guarantees throughout our history. As you and I have agreed, the First Amendment doesn't say anything about exceptions, and yet we've always had exceptions. We've had exceptions for libel, we've had exceptions for commercial free speech. Until recently, any expression that had anything to do with money or advertising was just completely read out of the First Amendment. But there's no more of an exception in the plain language or history for that than there is for sexually oriented speech.

And some of these other exceptions the court has gradually rolled back -- for example, there used to be an exception for something they called "subversive advocacy." One of the major reasons the ACLU was founded in 1920 was that during the whole WWI era, thousands of people were arrested and put in jail merely for peacefully expressing their opposition to the war. There was nothing in the First Amendment that said there is an exception for speech that is critical of your government. On the contrary, history indicated that one of the most important purposes was to give "we, the people" the freedom to criticize those whom we elect to govern us, including on critically important decisions such as whether we enter into a war or not.

So the history has been a long struggle of trying to make the reality, including the judicial decisions, live up to the plain language and original intent of the Constitution. Justice Hugo Black used to constantly say, unfortunately mostly in dissent, "No law means no law." The language of the First Amendment of course says, "Congress shall make no law restricting the freedom of speech or of the press." But of course Congress was constantly making those laws and the Supreme Court was constantly upholding them. Now, above and beyond those general reasons I've given you as to why the reality of judicial interpretation falls short of what I think the aspirations of the Bill of Rights were, there's a special reason when you deal with anything that has to do with sex in our culture, which is we are a sex phobic culture. It has to do with our puritanical roots. There is one, among many ironies here. I would have to acknowledge that on the whole, the United States is definitely the freest society in terms of free speech of any in the world. And I say that with a great deal of knowledge, having been very active in international human rights. And we certainly give more free speech protection to political speech; now we do have the right to criticize our government, very harshly, including by burning the American flag, and we have the freedom to advocate illegal and violent conduct, and we have the freedom to engage in hate speech. This doesn't exist in any other society.

But, when you look at expression about sex, it's the opposite. We're much less protected than many other societies, in particular European countries. And that has to do with our peculiar attitude toward sex, as Americans, seeing it as inherently dangerous and inherently suspect, and somehow just different. I think the attitude of the Meese's and the MacKinnon's and the Sunstein's and many of the justices of this world is that the Constitutional framers didn't need to say anything specifically about sex or sexual expression; everybody knows that sex is different. Therefore, they must not have contemplated including it in the First Amendment.

GROTH: How sympathetic are you to Ronald Dworkin's position that the Constitution has to be interpreted morally?

STROSSEN: Totally. Completely. I'm a big fan of his. He has written very eloquently on this particular issue of pornography.

GROTH: How absolutist are you a First Amendment advocate? Cass Sunstein tweaked you in his review of your book to the effect that there are many exceptions to the First Amendment.

STROSSEN: But I would disagree with most of the exceptions that he's talking about, as I've previously said. I'm a complete absolutist, as I think the First Amendment itself is an absolutist pronouncement. And I basically believe that the court has essentially gotten it right with respect to nonsexual expression, which is that government can censor or restrict speech if, but only if, there is a "clear and present danger of actual or imminent harm." What does not count as harm is, for example, somebody's intellectual response to the speech: I'm "insulted" by the idea it conveys; I'm "offended" by the idea it conveys; I "disagree" with the idea that it conveys; or, I think that that idea might lead some people eventually to have certain attitudes that might, even further down the road, lead them to engage in some conduct that might be dangerous to our country or to our community or to certain individuals. That's the kind of speculative potential harm that those who want to relax our protection of free speech say should be enough to justify censorship. No. I think the court is right when it says we need a tight and direct and immediate causal nexus between the expression and the alleged harm that is said to result from it, before we may censor the expression based on that potential harm. Also important is another concept that the court has very strongly enforced, including most recently in a decision announced Monday, unanimously: the concept of least-restrictive alternatives, that government may only use censorship to deal with some feared harm if that is the least speech-restrictive alternative that can address some great societal harm. If there is any means short of censorship that you can invoke, then you have to exhaust those alternative means.

GROTH: Didn't the Supreme Court just a day or two ago expand First Amendment rights to cover alcohol advertising?

STROSSEN: This is the case that I'm talking about. It wasn't really an expansion, Gary, but it was an important reaffirmation of a decision that was initially made 20 years ago. I mentioned to you that until then they had this implicit exception for what's called "commercial speech" -- in other words, advertising. This was 20 years ago. Interestingly enough, this exception was rejected in a case where the advertising was for abortion services, showing that the so-called distinction between commercial and political speech is no more meaningful than the so-called distinction between sexual and political speech. In fact, this abortion-related speech was sexual as well as political, as well as commercial, right? [laughs] But I think it was no coincidence that it was in that kind of factual context that the court first said, "We can't have this rigid reading out of the First Amendment of any speech that involves an advertisement for services with an exchange of money contemplated." And I think that is a very well entrenched principle as indicated by the fact that the result in this week's case was unanimous. On the other hand, there were four different opinions in the case, and a deep split as to exactly what the appropriate Constitutional analysis is for this kind of expression. The absolutists, interestingly enough, were some on the far-right of the court, who really are very consistent about saying, "We should be content neutral in evaluating whether speech should be protected. It doesn't matter what the subject or viewpoint is. All speech is created equal, as far as the government is concerned. It's up to individuals to make their own decisions about what they want to hear and what they don't want to hear, and government should not be acting in a paternalistic fashion."

Now, I agree with the commentators who say, "Maybe it would be different if we were talking not about adults, but about children, and there the government can and does act in a paternalistic fashion." And that of course is the major rationale that's trotted out for cyber censorship, as well as for other kinds of sexually oriented censorship. It's always allegedly to protect children.

GROTH: Cass Sunstein brings that up and asks rhetorically, "Would Strossen really protect the distribution of any and all child pornography?"

STROSSEN: I hope you're not relying on his so-called review of my book because it's such an inaccurate description. He and I deeply disagree on philosophical matters of interpretation and opinion. That's fine. But he mischaracterizes what I say in my book, which is not fine. This is one vivid example of it, Gary. In the book, I say very explicitly, I'm not talking about child pornography, I'm not defending child pornography. That is completely a different subject. My entire book, from start to finish, is dealing with consenting, mature adults engaged in voluntary decision-making. I say that from the get-go. I always disagreed with Cass Sunstein on his ideas, but I used to respect him. I lost respect for him as a result of that so-called review in The New Republic. And that's not because of a disagreement over ideas; it's because of his distortion of what I actually said. There were a number of letters to the editor of The New Republic pointing that out, and pointing out how personally invested he is in the issue without disclosing it, being a very close friend of [Andrea] Dworkin and MacKinnon and participating in a conference that was heavily criticized in my book. He was intellectually dishonest.

GROTH: Is that right?

STROSSEN: Yeah. So as I say, I'm drawing a Chinese wall between the legal issues and the facts here. He and I can respectfully disagree on the issues, but please don't rely on him for the facts as to what my book is about.

GROTH: Oh, no. I read your book.