Pornography, Public Morality, and Constitutional Rights

Every member of the community has an interest in the quality of the culture that will shape their experiences, their quality of life, and the choices effectively available to them and their children.

Theorists of public morality—from the ancient Greek philosophers and Roman jurists on—have noticed that apparently private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of “private” morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.



In my 1995 book Making Men Moral and elsewhere, I have argued that Dworkin’s efforts to derive from the principle of equality a moral right to pornography never manage to overcome the force of the public interest in prohibiting or restricting pornography that he himself identifies. That interest is not, fundamentally, in shielding people from shock or offense. It is something much more substantial: the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life, and the choices effectively available to them and their children in a domain of human affairs marked by profound moral significance.

When we bring this reality into focus, it becomes apparent that the familiar depiction of the debate over pornography regulation as pitting the “rights of individuals,” on the one side, against some amorphous “majority’s dislike of smut,” on the other, is false to the facts. The public interest in a cultural structure—in which, as Dworkin says, “sexual experience has dignity and beauty”—is the concrete interest of individuals and families who constitute “the public.” The obligations of others to respect their interests, and of governments to respect and protect them, is a matter of justice.


There is more to the picture. We know that a more or less unbridled culture of pornography can result in a sexualization of children that robs them of their innocence and even places them in jeopardy of sexual exploitation by adults. Can anyone honestly deny that we have ourselves witnessed a shameful sexualization of children in our own culture? The clergy child-abuse scandal is only the tip of an iceberg. The problem of pedophile sex tourism to places like Thailand is a dirty secret that will sooner or later break upon the American consciousness and conscience. Should we be surprised at such a thing? Think about the sexualization of adolescents in contemporary music, television, movies, and commercial advertising. Consider the notorious Calvin Klein ads on New York City buses depicting young people in sexually provocative poses. And now Abercrombie and Fitch has taken things to the logically next step by peddling thong swimwear to twelve-year-old girls.

Of course, commercial advertisements are generally not defended on the ground that they constitute “art.” But pornographic art can present the same problem. Sometimes obscenity or pornography is defined in such a way as to exclude anything qualifying as “art” from falling into the category. I see no reason for this, whether we are considering the issue from the point of view of possible legal regulation or from some other perspective. Someone might argue that the artistic value of certain pornographic depictions—you may recall Robert Mapplethorpe’s photograph of a bull whip in a rectum—provides a reason (or additional reason) to immunize it from legal regulation. But such depictions remain pornographic, and their negative impact on public morality cannot be denied. Moreover, it is difficult to see how any degree of artistic merit could justify the insult to morally conscientious taxpayers when they are forced to pay for pornographic depictions.

Art can elevate and ennoble. It can also degrade and even corrupt. Whatever should be done or not done by way of legal restriction of pornographic art, we ought not to make things easy on ourselves by pretending that art cannot be pornographic or that pornographic art cannot degrade. Nor ought we to avert our gaze from the peculiar insult and injustice involved in the government funding of pornography.

There are real and substantial human and personal interests competing with those desires or interests we label “freedom of expression” when it comes to the question of art and pornography. If we, as a society, are to decide against the former interests—particularly if we are to do so categorically—we should face up to what we are prepared to sacrifice, particularly when it comes to the well-being of children. And if judges are to impose a decision against these interests on a public that views the matter differently, they should shoulder the burden of providing a legal and moral justification for doing so.

It will not suffice to make mere appeals to “established constitutional principles,” or to the fact that a right to free speech is enumerated in the constitutional text while interests competing with it in the case of pornography are not mentioned. The truth is that so-called established constitutional principles on free speech and pornography are, at best, weakly justified in the cases. A bare reliance on the mere fact of an enumeration of a right to free speech will simply confirm the validity of the arguments advanced by Hamilton and other founding fathers against the Bill of Rights—namely, that the enumeration of certain rights would distort the scheme of liberty established in the body of the Constitution by miseducating Americans about the nature of constitutional government and the moral substance of their rights.

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