Dinner With Republican Friends

September 29, 2004

Since the Supreme Court struck down an internet anti-pornography statute about six weeks ago, I have been keeping count of blatant pornography sent to me. There are 60 to date. I don’t count so called “male enhancement” messages, nor plugs for cialis and the like, nor do I count invitations to log on to a site that features pornography but do not show it in the message itself.

Nothing I have done has made me a target for such email other than having been born a male. Nor have I encouraged e-mailers to send me endless invitations to refinance my mortgage, or take out new credit cards, or look into dating a (presumably) young woman who says she has heard from a friend that I am “cool” and would like to meet me. Boy would she be in for a shock if we meet for drinks.

Back in 1964, Justice Potter Stewart remarked on the near impossibility of defining pornography for the purpose of determining what material might be prohibited from distribution under the First Amendment. “But I know it when I see it,” he said. In that particular case, what Potter saw he knew was not pornography but a well made motion picture with some, by today’s standards, modest sexual depictions. Well, not only do I know the 60 messages I received are pornographic, but most often they are self described that way. Moreover, the pictures which accompany the invitation to go to the underlying site are very explicit photographs of couples or groups involved in sexual intercourse and other sexual practices complete with close ups.

(Mere explicit pictures, by the way, might not be banned if they had some scientific or cultural or informational purpose. If the pictures I have been receiving have such a purpose it must have to do with the science of conducting an orgy.)

Long ago I learned that a person’s sexual preferences does not reflect adversely on that person no matter how bizarre they may seem to others. Every adult is an expert on “normal” sex but your normal may not be mine. The exception, of course, is those preferences which involve doing harm to others without consent or to children too young to give consent. For example, I have no trouble agreeing that rapists and those who sexually abuse children should be severely punished. On the other hand, if you are turned on by pornography that is a private matter as long as it is private. People are turned on by so many things that it is obviously hopeless to ban them all. Besides, what is so wrong with being turned on?

What the United States Supreme Court found unconstitutional recently was congress’s third attempt to write a statute which would bar pornography from the internet. The decision was by a five to four vote. Interestingly, this vote was not the usual liberal conservative split. One of the most liberal justices, Justice Breyer, dissented, and Clarence Thomas voted with the majority. Of course, be it remembered that Thomas may have been interested in pubic hairs on Coke cans. The case was Ashcroft v. The American Civil Liberties Union (__US___ (2004)).

In the interests of full disclosure I should say that I was formerly on the board of the New York American Civil Liberties Union and later the California ACLU although I am not now a member of the ACLU in any jurisdiction. For several years I served on the national board of The Planned Parenthood Federation. One year I was an executive of Playboy. When I practiced law, I worked for a firm that had successfully defended many books, including James Joyce’s Ulysses, from censorship and I wrote a brief in the Supreme Court of the United States successfully defending a motion picture against a ban the state of Ohio imposed on grounds that would hardly merit a PG rating today. I am quite proud of that brief and of having actually viewed the picture with members of the court, although I am less proud of the typo which referred to “nude statutes in the park” rather than nude “statues.”

Against this background, you will be surprised to find that I disagree with the court’s decision finding the statute unconstitutional.

In general, I applaud the Supreme Court’s concern with First Amendment rights. Indeed, such rights have been increasingly under attack. Moreover, the ownership of the mass media by very few huge companies has the result that the First Amendment was designed to prevent, the limitation of the free flow of ideas. However, it has long been settled law that not every form of speech is protected by the First Amendment’s protection of “speech.” “Stick ‘em up,” said with a gun in a thief’s hand, cannot be defended under the amendment. Shouting “fire” in a crowded theater when there is no such threat is not a form of protected speech. Participating in a conspiracy to commit murder, even though one’s only involvement was by means of words, is also not protected. Nor, under former cases, was pornography, although that case law went to great lengths to protect “legitimate” purposes of pornography.

In the days when I was defending books as a lawyer, it used to be argued that no woman was ever ruined by a book. Moreover, one had to buy a book or borrow one to read it. And even if you found a book’s cover offensive, you could pass it by. Unhappily, there is no such option in the case of online pornography. It simply arrives on your computer bare faced, if you will forgive the pun.

The majority of the court struck down the statute because they believed that computer owners had technical means of defending themselves, and more importantly, their children from this stuff. Ah if it were only so. I have tried any number of spam programs, including Norton. They all work to some degree. I have programmed Norton, for example, to isolate in a separate file any email that contains any one or more of the words commonly used by pornographers in their messages. This works most of the time, but every now and then, smack daub in the middle of my inbox is a picture of a nubile woman doing things that she would be arrested for if done in public. Moreover, if I had children living at home, they could easily romp through my “Norton Anti-spam Folder” before I got around to erasing the messages in it.

No doubt there are other cleverer ways to block pornographic email, but one shouldn’t have to be a computer scientist to protect one’s children from this trash. Moreover, I don’t see the Supreme Court’s problem. Why can’t spam be blocked generally. What is to be blocked need not depend on the decision of some beaucrat like Ashcroft. Rather if an individual doesn’t want to receive unsolicited emails, what right has the government to force him/ to receive it?

Bless the Supreme Court for defending our rights. They should do more of that, not less. But every now and then even liberal judges nod.