Statement of Park Elliott Dietz [1]

Part: 
One
Chapter: 
3

In recent decades there has been a desirable trend toward using empirical evidence to test long-held assumptions underlying legal doctrine and procedure and to rely on social science evidence to make better-informed judgments about difficult questions of law and social policy. Social science has given good service in answering questions about adequate jury size, in determining public perceptions of trademark products, in profiling skyjackers, in sentencing convicted criminals, and in limiting the exclusionary rule. But social science is too new on the historical scene to have developed adequate data on every important social problem, too little funded to have amassed all the data desired, and too positivistic to tell us what we should do, particularly when competing interests are at stake.

The 1970 Commission on Obscenity and Pornography went so far in attempting to rely on social science evidence that a majority of its members took the absence of experimental evidence of causation of antisocial behavior or sexual deviance as a basis for urging the deregulation of obscenity. The present Commission did not limit its inquiry to the products of social science research. While in this respect we depart from the tradition of one predecessor Commission, we do not depart from the tradition of those who have been charged with formulating social policy for the whole of human history. Every time an emperor or a king or a queen or a president or a parliament or a congress or a legislature or a court has made a judgment affecting social policy, this judgment has been made in the absence of absolute guidance from the social sciences. The Constitutional Convention of 1787 had no experimental evidence to guide its decision making. When the First Congress proposed the First Amendment in 1789 and when it was ratified by the states in 1791 and made a part of the Constitution, the empirical social sciences had not yet been conceived.

As in public policy, decision makers in medicine must exercise their best judgment in the face of uncertainty, being guided by science as far as it takes us, being guided by a commitment to the well being of individuals and of society, and being guided by sensitivity toward those situations in which the best interests of an individual conflict with the best interests of society. It is within this framework that I have tried to make my own best judgments about pornography while serving on the Commission. At every step in our joint decision making, the medical and public health consequences have been in the forefront of my concerns. These consequences are not widely recognized, for which reason I devote most of my personal statement to an overview of these.

Before the Commissioners had even met one another, the press had begun to suggest bias among the Commissioners and to wave red flags of censorship. Now, before our report has even gone to the printer, there have already been claims that we are too liberal, that we are too conservative, that we have gone too far, that we have not gone far enough, that we have ignored evidence showing how innocuous pornography is, and that we have ignored evidence showing how destructive pornography is. In short, there are those who have rejected our findings before the report has even been issued, and I have no doubt many more will do so in the future without having read it. Likewise, but for somewhat different reasons, there will be those who accept our findings without having read our report. This is equally risky. Our report is meant to be read, and I encourage every adult in America to do so before accepting or rejecting our findings.

The reader should be forewarned, however, that our report contains offensive materials. Some readers will be offended by quoted language, particularly the titles of magazines, books, and films that we considered. But the offensiveness of some of the quoted language is nothing when compared to the suffering described by victims whose accounts are quoted in the victimization chapter. This is not bedtime reading. As with the practice of medicine, one must sometimes cause discomfort to effect a cure, and it was our judgment that the public and the truth would be best served by including certain discomforting materials in the report.

I came to the Commission with personal views on pornography which were based on intellectual and humanitarian concerns and on certain noncontroversial ethical principles; the morality of pornography was the farthest thing from my mind. Thus, I was astonished to find that by the final meeting of the Commission, pornography had become a matter of moral concern to me. While other Commissioners may have learned things about the dark side of life that they had never known, I remembered something about the higher purposes of life and of humanity's aspirations that I had forgotten during too many years working on the dark side. I therefore conclude my remarks with statements on morality and on freedom that would have seemed foreign to me not many months ago.

Notes

 

  1. Commissioner Cusack concurs in this statement.