Pornography, Community, Law

Given the limits imposed on society by the existence of imperfect human beings, social utopias of total perfection or total permissiveness (sometimes asserted to be one and the same) are an invitation to disaster. On June 21, 1973 the United States Supreme Court took an important step. In a 5 to 4 decision it turned away from the 1966 Fanny Hill verdict in which the Court had declared that a book would have to be “utterly without redeeming social value” in order to be legally banned. The June 21 decision returned to the standard of the 1957 Roth case: The taste of the average man in a particular community determines acceptability. As Chief Justice Burger put it: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.”

The Court has now admitted explicitly what had been implied by its post-Roth decisions: There are no national standards of pornography. But instead of continuing the tradition of permissiveness (“therefore, we may not ban anything”), the Court took a significant turn (“therefore, varying local standards may be used as the foundation of censorship”). The decision was, as usual, paper-thin; it remains to be seen whether it will stand the test of time.

GN

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Gary North

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Given the limits imposed on society by the existence of imperfect human beings, social utopias of total perfection or total permissiveness (sometimes asserted to be one and the same) are an invitation to disaster. On June 21, 1973 the United States Supreme Court took an important step. In a 5 to 4 decision it turned away from the 1966 Fanny Hill verdict in which the Court had declared that a book would have to be “utterly without redeeming social value” in order to be legally banned. The June 21 decision returned to the standard of the 1957 Roth case: The taste of the average man in a particular community determines acceptability. As Chief Justice Burger put it: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.”

The Court has now admitted explicitly what had been implied by its post-Roth decisions: There are no national standards of pornography. But instead of continuing the tradition of permissiveness (“therefore, we may not ban anything”), the Court took a significant turn (“therefore, varying local standards may be used as the foundation of censorship”). The decision was, as usual, paper-thin; it remains to be seen whether it will stand the test of time.