6.7 Enforcing Both Sides of the Law

Part: 
Two
Chapter: 
6

Both in Chapter 3 and in this Chapter we have emphasized our belief that conscientious enforcement of existing obscenity laws and the dictates of the First Amendment are not inconsistent. But our confidence in this conclusion will be increased if all of those with law enforcement responsibilities would recognize their responsibilities to enforce the existing principles of the First Amendment as conscientiously and as vigorously as they enforce the obscenity laws. The Constitution is a law too, and we expect that anyone who has taken an oath to uphold the law will recognize that they must uphold the First Amendment as well.

We make these general observations because we acknowledge that many citizens, sincerely and for very good reasons, would want the law to do more than it is now constitutionally able to do, and more than we feel it ought constitutionally be able to do. Many of these citizens will find an outlet for their views in the fully legitimate and appropriate private actions that we discuss in Chapter 8. But many others will make requests or demands on law enforcement personnel, sometimes out of ignorance about the constitutional constraints but often out of an understandable frustration that the Constitution, in the name of long-run values, often prevents us from doing what seems quite justifiable in the short run.

When faced with such requests or demands, we hope that law enforcement personnel will recognize their responsibilities to interpose their legal responsibilities at that time. They must refuse to take any action that would in any way be governmentally threatening to those who are exercising their constitutional rights, and they must be willing to explain to their angry constituents why they have not taken action and must not do so. We recognize that this may not always be easy in a world in which the citizens properly expect their elected and appointed officials to be responsive to the desires of the citizenry. But we should point out as well that most of our recommendations about increased or at least maintained law enforcement presuppose this attitude, and presuppose an environment in which the limitations of the First Amendment are enforced by all public officials at the point at which they first matter. To assume that enforcement of the obscenity laws is for law enforcement personnel while enforcement of the Constitution is for the courts is to misunderstand the nature of the system. It may also, ultimately, be to threaten the constitutional underpinnings of what we have urged in this Report. In the long run, the enforcement of the obscenity laws depends on the willingness of those who do the enforcing to respect the appropriate constitutional limitations. If that respect does not take place in practice and at the first instance, neither courts nor commissions such as this one will be able to be as confident of the current accommodation between conflicting goals as we now are.