In November 19, 1984 the New York Times published an editorial entitled “Censors in Feminist Garb” which warned of the threat to the Republic emanating from Suffolk County, Long Island. Here “a strange alliance of bluenosed censors and a branch of the feminist movement” was lobbying to outlaw the sale of reading material containing “graphic sexually explicit subordination of women.” The august Times warned that other groups in Minneapolis, Indianapolis, and Los Angeles were engaged in similar efforts and that the spread of Comstockry was “approaching New York City.” Times Square, the nation’s pornography center, would shortly be under siege.
The bill being considered by the Suffolk County legislature, the Times complained, would allow any straitlaced citizen to obtain a court injunction to suppress lascivious material deemed offensive to community standards. The paper argued that the legislators realized such a measure was clearly unconstitutional but feared being called defenders of pornography. If successful in Suffolk County, the censors’ next step would be to ask similar legislation from the New York City Council. According to the Times, the liberties guaranteed by the Bill of Rights were being threatened by this onslaught of bigotry from the hinterland. (In late December, 1984, the Suffolk legislature by one vote rejected the proposed legislation.)
The Times argued that the First Amendment’s guarantee of freedom of expression includes not merely freedom to express unorthodox political ideas but also “social experiment, literature, entertainment.” Freedom “only for narrowly defined ‘political’ discourse is no freedom at all.” The paper admitted that, at times, there would have to be “concessions” to valid social concerns, including forbidding the sale of lewd material to minors. But these are “concessions,” exceptions to the general bias in favor of freedom (As an aside, I am unaware of the Times even having described minimum wage laws and other interferences in private economic relations as “concessions” which, in case of doubt, should yield to freedom.)
The Times was particularly disturbed by the seemingly incongruous presence of feminists among the censors. Presumably the feminists should favor social experimentation and personal liberation and not censorship. The Times found to be totally without merit the feminist argument that pornography threatened women’s civil rights by depicting them as objects whose sole purpose was to gratify men’s sexual needs. The Times contended that such a threat, even if it did exist, posed no “clear and present danger” to women’s rights which might justify any abridgement of freedom of speech. Furthermore, the evidence of any such threat was so flimsy that no legislative body could, in good conscience, approve such a measure. Bills such as the one working its way through the Suffolk legislature “disregard the variety of tastes, interests and needs in a diverse population. Its logic would all too easily permit a further ban on any kind of expression, sexual or not, that offends anyone.” Certainly, the Times claimed, the Suffolk measure was clearly an unconstitutional assault on expression. Evidently extremism in the defense of absurdity has become a lietmotif of America’s most prestigious daily paper.
The Times suggested that those offended by pornography should not patronize its purveyors. “The first appropriate defense against offensive speech is avoiding it, tuning out, turning away. The proper and constitutional action against offensive speech is criticism, protest, boycott—not less speech but more.” Note how easily and unthinkingly the Times assumes that pornography is simply another form of speech. The danger here is that if people become convinced that pornography is in reality speech, then freedom of speech might suffer through guilt by association. Does the defense of freedom of speech include defending the rights of pornographers? If so, many might question the value of free speech itself.
The Times’ equating of free speech and pornography reminds one of the G. K. Chesterton’s remark that those without belief don’t end up believing in nothing. Rather, they will believe anything. The Times and the brand of liberalism for which it speaks stopped long ago believing in normative social and moral standards. Its image of the “good society” is solely procedural and instrumental. Since there are no absolutes, except the absolute that there are no absolutes, anything is permissible in the name of freedom and experimentation, what the young in heart and mind call “doing your own thing.” If the Times is serious, and how can one doubt that the ponderous Times takes itself seriously, then it must accept the possibility that pornography might triumph in the marketplace of ideas. The Times editors probably believe that good taste and rationality would prevent this from happening. And yet one has only to walk briefly through Times Square to discover that this view of human nature bears little relationship to reality.
In the late 1970s the courts ruled that American Nazis had the right to march with uniforms through the streets of Skokie, Illinois, the home of many holocaust survivors. The decision was troubling not primarily because of the affront it gave to the victims of Hitler, but rather because of the assumption that there was nothing in the United States Constitution preventing the Nazis, if persuasive enough in their unique form of speech, from becoming a majority political movement. Since there are no political, moral, or social absolutes, the Court must be neutral when confronted by a conflict between the claims of virtue and vice.
This certainly was not the original intention of the Founding Fathers. Jefferson, Adams, Madison, Otis, Washington, and the other luminaries believed separation from England was imperative because of her conspiratorial designs on the freedoms and property of the colonists. The Founding Fathers believed this conspiracy resulted from a corruption endemic throughout Britain. The preservation of the American Republic, they were convinced, would depend less upon the public’s fidelity to the political arrangements agreed upon in Philadelphia in 1787 and more upon the citizenry remaining morally wholesome. When asked in 1787 what kind of government the Constitutional Convention had created, Franklin supposedly responded, “a Republic, if you can keep it.”
The Founding Fathers were alert for signs that the public was becoming too fond of extravagant furniture, ornate art, ostentatious clothing, and other luxuries. These were infallible indications of corruption. Jefferson, the greatest of all our early statesmen, negotiated the purchase of the Louisiana Territory, despite doubts that he had the constitutional authority to do so, because he was convinced that the people would remain virtuous only as long as they were predominately agricultural and that the acquisition of the Louisiana Territory would provide sufficient farmland for generations to come. The revolutionary generation was thus anything but agnostic in the struggle between virtue and vice. The notion of the New York Times that the Republic is strengthened by allowing pornographers to peddle their wares would have struck the Founding Fathers as rather exotic.
The American public has made it quite clear that as far as constitutional interpretations of the First Amendment are concerned, they prefer the Founding Fathers’ to the New York Times’. Perhaps this is because they have more common sense (one is reminded of William F. Buckley, Jr.’s quip that he would rather be governed by the first two thousand names in the Boston phone book than by the Harvard faculty), and perhaps because their love of America is based on something more substantial than mere procedural safeguards for civil liberties. Judging from the results of the last several elections, the liberalism of the New York Times has not been successful in convincing most Americans that the promise of American life means the right to sell and read dirty books. They still believe the essence of America is what used to be called the “American dream,” the opportunity for any American to make something of his or her life. The sophisticated might view this as naive and their fellow citizens as country bumpkins. But one can also ask whether the civil rights marchers of the 1960s, the invaders of Iwo Jima, or the defenders of Cemetary Ridge would have risked their lives merely to protect an absolutist interpretation of the First Amendment?