Constitution Watch: Pornography in the Mainstream

“Negativism” has now become a dirty word, bruited about by liberals to discredit public figures whose utterances they despise. Among these figures are two who are famous for their negativism, William C. Donohue and Donald E. Wildmon. Dr. Donohue heads up the Catholic League for Religious and Civil Rights; Rev. Wildmon, the American Family Association. Both their groups have large memberships which trumpet the messages of their leaders, enabling them to win the distinction of being named “negativist,” “extremist,” and, of course, “shrill,” by the PAW and the ACLU—odd accusations indeed for these groups to make, who are far more deserving of those epithets.

But there is negativism and then there is negativism. The Donohue-Wildmon brand is a series of steel thrusts against media abuses of freedom of speech—the obscene, the anti-religious, the violent. The thrusts aren’t mere denunciations but rather are appeals to reason. Donohue and Wildmon carefully present facts, relating them to moral positions which they (and multitudes of other Americans) hold. Their method is one which observes the virtue of prudence, or, as John Courtney Murray said in words of forty years ago, “to inject the Catholic tradition of rationality into a mass democracy that is rapidly slipping its moorings in reason.” (His words apply equally to Evangelical Wildmon.)

But the critics of Donohue and Wildmon say that they go beyond factual appeals to reason. The protests they promote demand also redress, in the form of an end to specific media evils. The media moguls denounce the protests out of one obvious motivation: money. They are able to enlist three weapons for counter-offensive: the strident outcries of stock liberal activists, the cringing silence of “moderates” within religious bodies who panic at being seen associating with any group accused of extremism, and finally the law. Donohue and Wildmon have scored considerable success in blunting the attacks of the first. Wildmon’s targeting of the advertisers who supported Ellen was a major cause of its cancellation. Donohue has scored brilliantly against ABC’s audaciously anti-Catholic contrivances. Nothing succeeds like success, and these victories have, at least a bit, bucked up the courage of the timorous moderates. But as to law: Law has been nothing but helpful to the megamedia and the locals who ape them.

The constitutional law relating to media expression was essentially settled decades ago. The settling came about as a series of conflicts over books and movies became highly publicized. Until the ’50s, the popular media could be described as “clean”—not only of obscenity but of what would be offensive to a general Christian and Jewish moral outlook. Movies, magazines, Broadway, and radio held, not to a code of decency, but to the sense of a culture that some today would look back upon as naively innocent. Private codes of decency did come into existence in the ’30s. These regulations, such as the Production Code Administration, set up in Hollywood in 1933, the Legion of Decency, and the National Office for Decent Literature, were promoted by the Catholic Church. They were an early response to the slow and slight loosening by our courts of traditional legal restrictions on films and books on the basis of their alleged tendency (in the phrase they borrowed from Victorian England’s Court of Queen’s Bench in Regina v. Hicklin) “to deprave and corrupt minds.”

But by 1957, in Roth v. United States, the Supreme Court, chiefly under the guidance of Justice William J. Brennan Jr., had formulated a new test for obscenity—”whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Picture yourself thereafter as somebody who wants to purvey pornography. Don’t the key phrases in that test provide quite permeable barriers to your venture? Aren’t “average person” and “taken as a whole” formulas for quibbling? In 1973 the Court was to render the test still looser, and our courts can now find a production non-obscene if it has some wraith of intellectual value and does not describe sex conduct in a “patently offensive way.” Attempts to regulate the media, even in the licensing of the publicly owned broadcast spectrum, have all failed under the court’s rulings.

In 1998 many city attorneys do attempt to operate against “porn shops” and the making available of the worst of materials to children. Good. But we can witness—at any hour—matter that, only four decades ago, would have been not only unseeable but unimaginable. What the Court now calls pornography is scarcely the major problem we face. Even the horrors of hate and perversion found on the Internet, which many people cannot access, should not be our major concern. Rather, we should be wary of programming which is popular. Consider the Standard Intercourse Scene—now, since the mid-’80s (e.g., “Ryan’s Daughter”) seemingly a necessity for inclusion in any film, TV drama, or novel billed as involving a romantic relationship. Even in some of the sitcoms, the popular talk show programs, and the low comedies of late night TV, the lewd and nude are fed to willing mouths in raunchy bites. “Sex” as the constant theme is not confined to those rude affairs. It is the focus of the magazines you can see in any newsstand. Jonathan Swift, were he looking at our fixation on venery, might well exclaim:

Oh, what an ugly sight to watch:
A nation going to its crotch.

The law is on the side of the media. Will it be changed? Many looked with high hopes to what the Supreme Court would say about decency standards in the National Endowment of the Arts case this term. Under a much discussed act, Congress was empowered to deny funding to NEA for projects which might offend “general standards of decency and respect for diverse values and beliefs of the American public.” The act’s constitutionality had been challenged as applied to performances by a chocolate-covered nude woman. Though the Court, on June 25, rebuffed the challenge, it appeared to say that the “standards of decency” provision of the act was merely advisory. In only the slightest sense was the decision a legal victory for decency. Will the law be changed?

Two directions are indicated, though the justices of the Supreme Court will have to remove their blinders of respect for bad precedent decisions. First, they will need to repudiate their view that freedom of speech is synonymous with freedom of expression. The justices will need to arrive at a state in which, as mature people, they recognize the social evils (of which violent crime is but one) resulting from the constitutional protection given “expression”—any kind of expression, as compared with speech communicating ideas. The U.S. Catholic bishops in June issued a splendid statement, Renewing the Mind of the Media: A Statement on Overcoming the Exploitation of Sex and Violence in Communications. If

read carefully by the justices, it should be a help in the maturation process which some of them so plainly need. It calls for not only renewing the mind of the media, but also renewing the minds of the justices. Second, the Court will need to recognize a broader power in the states (and localities within states) to adopt and enforce laws reflecting community values that reject extremities of expression which promote violence and perversion. But to speak of the possible is not to describe the probable. There is little hope that law will save the culture or that the media will get itself out of its fatal cycle of producing evil material, which breeds the taste for evil material, the demand for which breeds profits, and hence the production of more (and worse?) evil material.

We began by speaking of Wildmon and Donohue. They have indeed managed to interrupt the cycle on occasion. “Hit ’em in the pocketbook” is surely the part of wisdom. But the hit takes place only because it represents the spirits of revulsion and resolve of their Christian constituents—a militancy shared by many Catholic and Evangelical groups. As you read the literature of these groups, you come upon more than pleas for public militancy. In so much of their work, prayer is the action they deem indispensable. It’s usually prayer, not merely for the conversion of the media moguls, but for the conversion of the culture. It’s probably the best hope for a Constitution near moral bankruptcy.


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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