The Federalist Society

A Scholarly and Courageous Treaty on the Victory of Obscenity over Morality

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 3, Fall 1997

December 1, 1997

Gerald Walpin

Only the proverbial "hear-no-evil, see-no-evil" crowd could disagree with Rochelle Gurstein's description of contemporary America as revealing "the dissolution of shared moral and aesthetic standards, the subjectivization and trivialization of the faculties of taste and judgment, and the waning of the sense of shame -- developments that, in turn, have given rise to a common world that is ugly, indecent, and uncivil." Standards have been demeaned "as a form of cultural imperialism" and taste "has been reduced to mean little more than individual whim or consumer preference," with the consequence that the "public sphere has degenerated into a stage for sensational displays of matters that people formerly would have considered unfit for public appearance."

In The Repeal of Reticence (Hill and Wang, 1996), Gurstein, a professor of history at the Bard Graduate Center, has provided a scholarly and reasoned chronicle of (in the words of the subtitle) "A History of America's Cultural and Legal Struggles Over Free Speech, Obscenity, Sexual Liberation, and Modern Art." She courageously presses a view that has been all but silenced by the politically-correct tide covering much contemporary thinking, recognizing early in her treatise that "to raise objections to so-called free expression -- no matter how graphically violent, sexually explicit, perverse or morbid -- is to invoke the epithet 'puritan'." After all, as she sadly notes, the uniquely human quality of being able to judge is now derisively criticized as being unacceptably judgmental. Gurstein was not just being paranoid in predicting these attacks; in fact, she was clairvoyant, as reviews written by proponents of the absolutist, everything-allowed First Amendment School have attacked her with just those epithets.

The First Amendment's real purpose -- the free dissemination of ideas so to permit unfettered consideration of their merits -- warrants a more reasoned consideration of Gurstein's thoughtful and timely book.

Gurstein traces history to demonstrate, step by step, how the "party of reticence," which governed in the 19th and early 20th centuries, was defeated by the "party of exposure," resulting in the current conditions. She is by no means an absolutist advocate of total reticence. For example, she labels Anthony Comstock, the official most associated with (among other things) turn-of-the-century laws banning the mailing of sexual literature and devices (including information about contraception) as an intolerant self-righteous purveyor of a "priggish brand of moral reform." She also disparages the early criminal obscenity convictions of people who used the mails to distribute birth control and sexual health information that they intended and believed to be scientific and educational.

Gurstein criticizes both parties for their "absolutism in matters of censorship" which "betray a deep-seated fear that neither unfettered speech nor censorship is containable, that neither can be tempered by judgment or taste." What she seeks is a balance between the ostrich-head-in-the-sand practice of the Victorian era, and the current anything goes doctrine; hence, she quotes with approval a 1916 article to the effect that "by all means let us tell our children all we can, as simply as we can, about the essential facts of sex. But it does not follow that we need [literally or figuratively] introduce them into brothels, or even into our own bed chambers." The issue today, she correctly notes, "is not a question of Comstock ludicrously trying to stop the Art Students' League from mailing a pamphlet with reproductions of studio nudes." Rather, the more relevant question in our time is how to respond to absolutists "with the full machinery of the state behind them fighting for the rights of Neo-Nazis to march in Skokie, the rights of the Ku Klux Klan to burn crosses, the rights of bigots to scream racial slurs, and the rights of pornographers to their exploitative trade in women." Whether one agrees with all components of this statement (as I do not agree with her suggestion that speech some may consider "racist" is not entitled to protection), she accurately highlights the current lack of balance in our society.

It is undoubtedly in recognition of practical reality that Gurstein offers no roadmap on how to obtain this balance in our society. Understandably, given the sequence of judicial decisions which she relates, she believes that our jurisprudence has "failed to address what is really at stake in controversies about obscenity-- the quality and character of our common world." Instead, over the past 50 years, our courts have overruled the previous 150years by now interpreting the First Amendment effectively to prevent any limitation of speech through consideration of the societal need to be free of the most violent and sexually explicit commercialized "entertainment." As Gurstein points out, the law once reflected this need for balance in the form of the so-called Hicklen test, first adopted in 1879, that defined unprotected obscenity as that which tends "to deprave and corrupt the morals of those whose minds are open to such influence." In 1913, Learned Hand modified this test to take into account the "present critical point in the compromise between candor and shame at which the community may have arrived here and now."

This balancing test was totally eviscerated in the late 1950s and 1960s. Justice Brennan attempted to retain balancing in his 1957 majority opinion in Roth v. United States, reaffirming that obscenity was not protected by the First Amendment. But, in a precursor to the Court's future jurisprudence, Justice Douglas dissented on the ground that, given the absence of general agreement on what obscenity is, everything should be permitted. Only eight years later, Douglas, writing then for the majority, added a new element to the definition of obscenity -- namely, that it cannot have any redeeming social value -- and then promptly made that element virtually impossible to establish: "If the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be utterly without any redeeming social importance?"

Gurstein is frustrated by the refusal by contemporary courts and commentators to recognize the practical impact that obscenity, and in particular pornography and violence, have on society. She correctly points out that the Hicklen test rested on the view that literature and art play a crucial role in character building, with stories about great people and virtuous deeds offering examples for people to emulate. It likewise acknowledged the fact that "the depiction of dissolute activities could corrupt a person's character, especially that of youth." For decades, law enforcement officials and government leaders believed that making salacious material available to immature or unstable people could encourage sexual activity and produce violent criminals. This view is consistent with current "accepted" doctrine that minority youth can benefit from highlighting the success of minority "role models," and that tobacco ads promote teen smoking by linking cigarettes with sports events or attractive "Joe Camel" type figures, and that "Just Say No" educational campaigns reduce youth drug usage.

But, as Gurstein relates, the "party of exposure" rejected this reasoning, first by asserting in the early 1950s that what appears in public has no demonstrable impact on individuals, and then later arguing that obscenity actually can work a positive good in society by providing a safety valve for potentially dangerous behavior. (This latter notion derives from the dangerously naive suggestion that an excited libido will limit itself to private masturbation and never affect innocent persons who might be accosted by that excited libido.)

In recounting this history, Gurstein offers some intriguing, even entertaining reversals of position by certain contemporary well-known adherents to the party of exposure. Can you imagine The New York Times as the champion of individuals' rights to privacy against an unrestrained media? Yet, Gurstein quotes a 1902 Times editorial on a court decision rejecting a privacy lawsuit by a woman whose likeness was used in an ad: "[The] relentless pursuit by 'Kodakers' of public figures and private individuals alike ... appear to the decent and unsophisticated human mind as outrages. A community which permits such outrages could not be considered civilized."

And then Margaret Sanger, the godmother of Planned Parenthood and similar abortion proponents, was an outspoken opponent of the Comstock Act, which prohibited the discussion and distribution of contraception. Sanger blamed the statute for the wretched health of countless women forced into a life of perpetual childbearing. This sounds very similar to Planned Parenthood's current efforts to blame similar situations of countless contemporary women on "pro-life" objections to abortion. Yet, Sanger, in fact, decried "the hundreds of thousands of abortions being performed in America each year ... as a disgrace to civilization," laying "the blame for them and the illness, suffering and death resulting from them at the door of a government which in its puritanical blindness insists upon suffering and death from ignorance rather than life and happiness through knowledge and prevention." Imagine Sanger turning over in her grave hearing her progeny now favoring abortions which she decried "as a disgrace to civilization."

Gurstein does note a few bright spots in this otherwise downward slippery slope. The 1890 essay of two recognized legal heroes, Louis Brandeis and Samuel Warren, spotlights the dangers to society from commercial trade that panders to a prurient taste for the details of sexual relations, resulting in a lowering of social standards and morality. And then in 1970, shortly before his death, Morris Ernst, the noted counsel to the ACLU and long-time opponent of censorship, declared that he would not choose to live in a society without limits to freedom. He announced his revulsion at the "present display of sex and sadism on the streets and the stage," the spread of "four-letter words out of context," and the performance of "sodomy on the stage or masturbation in the public area." As Gurstein reports, Ernst concluded with his resentment of the "idea that the lowest common denominator, the most tawdry magazine, pandering for profit, to use the Supreme Court's word, should be able to compete in the marketplace with no constraints."

Gurstein's treatise does not leave fair-minded readers content or optimistic, but rather troubled and worried about the country's direction. But, she does offer a faint glimmer of hope that this great democracy can, like Ernst, turn around and recognize that the law has traveled too far, that the time has come for the pendulum to swing back to a more balanced position. Whether or not that will occur, her book deserves careful reading and debate.

*Mr. Walpin is a partner with the New York law firm Rosenman & Colin, and is Chairman of the Federalist Society's Litigation Practice Group.


The Federalist Society