3.4 The Risks of Abuse

Part: 
Two
Chapter: 
3

Although we are satisfied that there is a category of material so overwhelmingly preoccupied with sexual explicitness, and so overwhelmingly devoid of anything else, that its regulation does no violence to the principles underlying the First Amendment, we recognize that this cannot be the end of the First Amendment analysis. We must evaluate the possibility that in practice materials other than these will be restricted, and that the effect therefore will be the restriction of materials that are substantially closer to what the First Amendment ought to protect than the items in fact aimed at by the Miller definition of obscenity. We must also evaluate what is commonly referred to as the "chilling effect," the possibility that, even absent actual restriction, creators of material that is not in fact legally obscene will refrain from those creative activities, or will steer further to the safe side of the line, for fear that their protected works will mistakenly be deemed obscene. And finally we must evaluate whether the fact of restriction of obscene material will act, symbolically, to foster a "censorship mentality" that will in less immediate ways encourage or lead to various restrictions, in other contexts, of material which ought not in a free society be restricted. We have heard in one form or another from numerous organizations of publishers, booksellers, actors, and librarians, as well as from a number of individual book and magazine publishers. Although most have urged general anti-censorship sentiments upon us, their oral and written submissions have failed to provide us with evidence to support claims of excess suppression in the name of the obscenity laws, and indeed the evidence is to the contrary. The president of the Association of American Publishers testified that to his knowledge none of his members had even been threatened with enforcement of the criminal law against obscenity, and the American Library Association could find no record of any prosecution of a librarian on obscenity charges. Other groups of people involved in publishing, bookselling, or theatrical organizations relied exclusively on examples of excess censorship from periods of time no more recent than the 1940s. And still others were even less helpful, telling us, for example, that censorship was impermissible because "This is the United States, not the Soviet Union." We know that, but we know as well that difficult issues do not become easy by the use of inflammatory rhetoric. We wish that many of these people or groups had been able to provide concrete examples to support their fears of excess censorship.

Throughout recent and not so recent history, excess censorship, although not necessarily prevalent, can hardly be said not to have occurred. As a result we have not been content to rest on the hollowness of the assertions of many of those who have reminded us of this theme. If there is a problem, we have our own obligations to identify it, even if witnesses before us have been unable to do so. Yet when we do our own researches, we discover that, with few exceptions, the period from 1974[42] to the present is marked by strikingly few actual or threatened prosecutions of material that is plainly not legally obscene. We do not say that there have been none. Attempted and unsuccessful actions against the film Caligula by the United States Customs Service, against Playboy magazine in Atlanta and several other places, and against some other plainly non-obscene publications indicate that mistakes can be made. But since 1974 such mistakes have been extremely rare, and the mistakes have all been remedied at some point in the process. While we wish there would be no mistakes, we are confident that application of Miller has been overwhelmingly limited to materials that would satisfy anyone's definition of "hard core."

Even without successful or seriously threatened prosecutions, it still may be the case that the very possibility of such an action deters filmmakers, photographers, and writers from exercising their creative abilities to the fullest. Once it appears that the likelihood of actual or seriously threatened prosecutions is almost completely illusory, however, we are in a quandary about how to respond to these claims of "chilling." We are in no position to deny the reality of someone's fears, but in almost every case those fears are unfounded. Where, as here, the fears seem to be fears of phantom dangers, we are hard pressed to say that the law is mistaken. It is those who are afraid who are mistaken. At least for the past ten years, not one remotely serious author, photographer, or filmmaker has had anything real to fear from the obscenity laws. The line between what is legally obscene and what is not is now so far away from their work that even substantially mistaken applications of current law would leave these individuals untouched. In light of that, we do not see their fears, however real to them, as a sufficient reason now to reconsider our views about the extent of First Amendment protection. Much more serious, much more real, and much less in our control, is the extent to which non-governmental or governmental but non-prohibitory actions may substantially influence what is published and what is not. What television scriptwriters write is in reality controlled by what television producers will buy, which is in turn controlled by what sponsors will sponsor and what viewers will view. Screenwriters may be effectively censored by the extent to which producers or studios desire to gain an "R" rating rather than an "X," or a "PG" rather than an "R," or an "R" rather than a "PG." Book and magazine writers and publishers are restricted by what stores are willing to sell, and stores are restricted by what people are willing to buy. Writers of textbooks are in a sense censored by what school districts are willing to buy, authors are censored by what both bookstores and librarians are willing to offer, and librarians are censored by what boards of trustees are willing to tolerate.

In all of these settings there have been excesses. But every one of these settings involves some inevitable choice based on content. We think it unfortunate when Catcher in the Rye is unavailable in a high school library, but none of us would criticize the decision to keep Lady Chatterley's Lover, plainly protected by the First Amendment, out of the junior high schools.

We regret that legitimate bookstores have been pressured to remove from their shelves legitimate and serious discussions of sexuality, but none of us would presume to tell a Catholic bookseller that in choosing books he should not discriminate against books favoring abortion. Motion picture studios are unable to support an infinite number of screenwriters, and their choice to support those who write about families rather than about homosexuality, for example, is not only permissible, but is indeed itself protected by the First Amendment.

Where there have been excesses, and we do not ignore the extent to which the number of those excesses seems to be increasing, they seem often attributable to the plainly mistaken notion that the idea of "community standards" is a carte blanche to communities to determine entirely for themselves what is obscene. As we have tried once again to make clear in this report, nothing could be further from the truth. Apart from this, however, the excesses that have been reported to us are excesses that can only remotely be attributed to the obscenity laws. In a world of choice and of scarce resources, every one of these excesses could take place even were there no obscenity laws at all. In a world without obscenity law, television producers, motion picture studios, public library trustees, boards of education, convenience stores, and bookstores could still all choose to avoid any mention or discussion of sex entirely. And in a world without obscenity laws, all of these institutions and others could and would still make censorious choices based on their own views about politics, morals, religion, or science. Thus, the link between obscenity law and the excess narrowness, at times, of the choices made by private industry as well as government is far from direct.

Although the link is not direct, we are in no position to deny that there may be some psychological connection between obscenity laws and their enforcement and a general perception that non-governmental restriction of anything dealing with sex is justifiable. We find the connection unjustifiable, but that is not to say that it may not exist in the world. But just as vigorous and vocal enforcement of robbery laws may create the environment in which vigilantes feel justified in punishing offenders outside of legal processes, so too may obscenity law create an environment in which discussions of sexuality are effectively stifled. But we cannot ignore the extent to which much of this stifling, to the extent it exists, is no more than the exercise by citizens of their First Amendment rights to buy what they want to buy, and the exercise by others of First Amendment rights to sell or make what they wish. Choices are not always exercised wisely, but the leap from some unwise choices to the unconstitutionality of criminal laws only remotely related to those unwise choices is too big a leap for us to make.

Notes

  1. 1974 seems the most relevant date because that was the year in which the Supreme Court, in Jenkins v. Georgia, 418 U.S. 153 (1974), made it clear that determinations of obscenity were not primarily a matter of local discretion.