In 1857, the House of Lords engaged in a heated debate over a bill sponsored by an organization calling itself by the frank, but nonetheless quaint, name of the “Society for the Suppression of Vice.” The intent of the bill was to control, through legal penalties, the production and sale of “obscene publications,” and despite the high Victorian setting of the debate, enactment of the bill was by no means assured. “Brougham was dubious; Lord Wensleydale considered the common law adequate as it stood,” wrote historian W.L. Burn of the discussion among the peers. But the high point of the controversy arrived when an 85-year-old Tory, Lord Lyndhurst, rose to oppose the bill and read out “a long list of works ranging from the classics to Restoration plays which might be deemed obscene.” Lyndhurst’s tactic infuriated Lord Campbell, the prim Liberal peer who was the principal spokesman for the bill and who promptly denounced Lyndhurst’s “zeal for these filthy publications” and upbraided him for defending the supposed right to engage in “free trade in obscenity.” Lyndhurst rose again to respond that his many years of recounting risqué anecdotes about his own ancestors had jaded his sensibilities to the kind of immorality Lord Campbell was condemning. In the event, for all the controversy and all the confrontation of aristocratic wit with bourgeois moralism, the Obscene Publications Act became law, and what we now know as “Victorianism” acquired one more legal support from the British government.
The debate in the Lords is of interest because it is one of the early occasions of a controversy that has continued down to our own time, and, as the exchange between Lyndhurst and Campbell suggests, the terms of the controversy have not changed and have never been settled. Lyndhurst’s list of classics goes to the heart of the perennial debate over pornography and obscenity, and every time the issue is argued, those opposed to censorship produce a similar list. How do we know what is and what is not “obscene”? How do we know we are not silencing an Aristophanes, a Rabelais, or a Joyce? On the Lyndhurst side of the aisle is the obvious truth that many of those most zealous to crush obscenity care absolutely nothing for serious literature and art anyway, that to such paragons of virtue and civilization entire libraries are little more than depositories of “filthy publications,” and they would be just as happy to consign Aristophanes, Rabelais, and Joyce to the fire as to shut down the local peep shows and massage parlors.
Yet on the other side is what should be the equally obvious truth that the state has every right to regulate and discipline the private moral life of its citizens. Morally proper behavior is fundamental to the elementary cohesion of human society, not to speak of the higher levels of civilization that most people would like to sustain, and the systematic assault on morality, taste, beauty, and decency that pornography perpetrates is a perfectly appropriate target of public coercion. Opponents are probably right: Sometimes, if you have strict laws against obscenity, you might in error silence a Shakespeare. But, by the same argument, if you have laws against murder, you might sometimes hang an innocent man. Mistakes happen, but as long as procedures exist to control and avoid them, they do not invalidate the legitimacy of the principle.
This summer, the U.S. House of Representatives again took up the debate over obscenity, only this time it was not about sex in books but violence in movies. Rep. Henry Hyde, fresh from the failed crusade to topple Bill Clinton, came up with a measure to save America’s children from Hollywood. The occasion of the Hyde proposal was the massacre in Littleton, Colorado, two months before and die inane compulsion that lawmakers of both parties experienced to “do something” to prevent more Littletons in the future. The favorite such “something” was gun control, but the Republicans quickly managed to fumble that issue and allow the Democrats to upstage and out-maneuver them. Mr. Hyde’s measure was driven in large part by the need felt by many Republicans that, if the Democrats were going to “do” gun control, the Republicans must “do” something else, and what Republicans should “do” was attack Hollywood, a whipping boy as popular with the Stupid Party as gun owners are with the Evil. The relevance of outlawing, controlling, or censoring movies, videos, and other media for the purpose of preventing future Littletons was never clear. The whole measure was driven not by any serious desire to avoid such bloodlettings, but by what Republicans were smart enough to recognize as the political necessity that they “do something” but were too dumb and cowardly to resist by exposing as merely a deliberately concocted device to attack private firearm ownership.
Moreover, the language Mr. Hyde drafted and submitted was full of holes. His bill sought to prevent minors under 17 from buying materials containing “obscene violence,” defined as “the kind of violence that appeals to the prurient, morbid or shameful interest of children without social redeeming value for children.” Of course, almost every word in the definition—”prurient,” “morbid,” “shameful,” “redeeming,” and “value,” not to mention “violence” itself—is up for grabs. Like almost all legislation that tries to define and outlaw “obscenity,” whether sexual or violent, Mr. Hyde’s definition contained terms that were themselves open to interpretation and debate and would only have led to an infinitely regressing argument over what was or was not subject to the law.
The Hyde language was clearly derived from the most recent definition of “obscenity” offered by the heavy lifters over at the Supreme Court in the Miller decision of 1973. After several rulings in the 1950’s on the issue of “obscenity,” the case of Miller v. California settled the matter for at least the last generation. In that decision, Chief Justice Warren Burger’s definition of “obscenity” is that material may be obscene if
(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Hyde language is merely an adaptation of the Burger definition applied to violence rather than sex—although Burger repeatedly insisted that “obscenity” referred only to sexual conduct.
The Hyde adaptation is therefore suspect on its face, since violence, even when it is as brutal as Oliver Stone or Steven Spielberg can make it, still isn’t sex (except when it becomes sadomasochism) and simply does not have the implications for personal, family, community and general societal cohesion that sexuality does. Even so, it may also be noted that the Burger definition, like so much of what the second-rate minds of the courts try to do, is largely useless even for controlling real sexual obscenity. In the first place, the definition is simply too long and cumbersome, is couched in too many qualifications, and again relies on undefined and unclear terms. In addition, the knee-bend to “community standards,” while seemingly a recognition that healthy backwaters like Montana and Alabama may retain the right to control their own public morals, in fact guarantees that the centers of the world pornography industry in Los Angeles and New York may operate without fear and inundate the rest of the country with their products. The “community standards” of the megalopolis are hardly such as to encourage moral uplift.
Mr. Hyde at least spared us the cant and mendacity of the Burger Court’s “community standards,” but his definition was no more useful, even if we grant that his purported purpose of protecting minors from harmful depictions of violence was desirable. It is unquestionable that Hollywood and the mainstream media now regularly crank out the most disgusting and repellent depictions of violence and that immersion in such films by young people is almost certainly unhealthy. What is not clear is whether a harmful level of immersion in these kinds of films is sufficiently common as to constitute a problem of any kind or that the harmful effects of the films reach to matters of public concern—e.g., the committing of crimes or the destabilization or corruption of society. Since Mr. Hyde and his Republican colleagues were far more concerned to perpetuate the illusion that Republicans were just as “sensitive” to Littleton as the Democrats and just as committed to “doing something,” there was no time for any congressional inquiry on the subject. There may be sociological or criminological literature on it, but because there were no hearings, such materials never made it into the public eye.
Conservatives are undoubtedly fed up with Hollywood—sometimes justifiably so and sometimes not. Whenever I hear conservatives discussing movies, I am invariably struck by the illiteracy and banality of their judgments. Mr. Hyde, asked by the Wall Street Journal about which current films he might consider “too violent,” mentioned Mel Gibson’s Payback and The Matrix. He also remarked that “I’d say that any movie that has more dian 50 killings is pushing the envelope.” That, of course, pushes just about any war movie made in the last 50 or 60 years—Sergeant York, Sands of Iwo Jima, Spartacus, Braveheart, Gettysburg—well outside the envelope.
The problem with Mr. Hyde’s attempt to enforce public morals is not, however, that doing so is impossible or undesirable, nor is the problem only that the real motivation of the Hyde legislation was its transparently cynical but nonetheless fatuous political purpose. The deeper problem with what Mr. Hyde and conservatives in general are trying to do is simply that today there is virtually no public morality to enforce.
Say what you will about Oliver Stone, Madonna, and MTV, the brute fact is that, ever since the 1960’s, sexuality and violence of a level never before permitted have permeated our popular culture. The paperback novels on sale at any Walden’s or B. Dalton’s contain language and behavior that would have been universally banned in the 1950’s. Mainstream movies today—not just Quentin Tarentino’s or John Woo’s—routinely portray murders, tortures, maimings, lethal explosions, mass deaths, and catastrophes, as well as rape, sexual intercourse, sexual jokes, nudity, perversion, and assorted jabber about sex organs and bodily functions, on a scale and in a detail never before permitted. I rehearse these facts not out of any prudish dudgeon—like Lord Lyndhurst, my own sensibilities are far too jaded by exposure to contemporary popular culture to be very concerned about this kind of immorality—but merely to emphasize that any conventional legislative enforcement of public morals today is all but impossible.
The legitimate purpose of legislating against obscenity,” is not to restore or create a moral consensus where none exists, but to protect an existing consensus against threats from file handful of deviants who violate it or want to subvert it. In 1857, when Lords Lyndhurst and Campbell debated, most gentlemen in their civilization on both sides of the Atlantic shared such a consensus, and, for a century or so afterward, enforcement of a public morality that was widely known, understood, and shared remained possible. Lawmakers no more had to worry excessively over the implications of a legal definition of “obscenity” or what terms like “prurient,” “morbid,” “shameful,” or “redeeming” really meant than the Framers of the U.S. Constitution had to explain what “cruel and unusual punishment” or “free exercise” of religion meant. Everyone knew the meaning of these terms; if they didn’t know, they were not part of the common civilization, so their ignorance didn’t much matter.
Today, conservative efforts to enforce morality through the state, like those of Mr. Hyde, suffer from the flaw that we live in a society that has become a moral vacuum and has ceased to be part of a common civilization. This is why courts and lawmakers have so much trouble defining “obscenity” at all. Within the ruling class, at least, the common understandings of morals (not to mention of language itself) have all but vanished. The long shadow of that fate was perhaps beginning to stretch itself when Lord Lyndhurst read out his list of classics that may or may not have been deemed obscene, but in 1857, Western men still generally knew what the term meant and what the moral beliefs they were trying to protect were. Today, we can no longer protect morality through law because no one—including most lawmakers—any longer knows what morality is or should be.
Mr. Hyde may or may not have known what he wanted to accomplish with his proposal, but what his ill-considered measure (had it passed) would probably have done (aside from encouraging I Hollywood to produce movies that only children would want to watch) was impose a fake moral code that virtually no one else in the society had thought about, endorsed, practiced, or expressed any desire to accept. He might well have pushed the movies he claimed to dislike out of the envelope, but the “morality” he and his colleagues in the Stupid Party wanted to cram into the nation’s moral vacuum would have been neither a real morality nor even air imitation worth having.