An Expert Witness Disagrees

I RECENTLY was invited again to testify as an expert witness in a pornography trial. I declined. In the Sixties and Seventies I often testified, usually for the prosecution. I thought pornography not only offensive but harmful to the social fabric. Further, the crime-stimulating effect of pornography seemed likely to exceed any crime-replacing (cathartic) effects. Thus, the harm appeared to far outweigh the masturbatory pleasure that vicarious sex may yield, and I favored punishing purveyors. I have changed my mind. I no longer believe the actual harm is great enough to bother.

Though convinced now that I was wrong about the importance of pornography, I believe that my testimony was legally correct. The First Amendment protects speech—oral, written, or printed. Speech is a subclass of expression. The First Amendment does not mention, let alone protect, expression as a whole, or any subclasses other than speech, such as music, dance, painting, firecrackers, or “symbolic speech,” defined as action (e.g., flag burning) meant to express an opinion by non-verbal means. Nevertheless, the Supreme Court has decided that the Constitution protects non-verbal as well as verbal expression. (Had the Framers meant to do so they would have said so. After all, non-verbal expressions were not unknown to them, nor was the term “expression.”)

EH

About the Author

Ernest van den Haag

Featured Tags

I RECENTLY was invited again to testify as an expert witness in a pornography trial. I declined. In the Sixties and Seventies I often testified, usually for the prosecution. I thought pornography not only offensive but harmful to the social fabric. Further, the crime-stimulating effect of pornography seemed likely to exceed any crime-replacing (cathartic) effects. Thus, the harm appeared to far outweigh the masturbatory pleasure that vicarious sex may yield, and I favored punishing purveyors. I have changed my mind. I no longer believe the actual harm is great enough to bother.

Though convinced now that I was wrong about the importance of pornography, I believe that my testimony was legally correct. The First Amendment protects speech—oral, written, or printed. Speech is a subclass of expression. The First Amendment does not mention, let alone protect, expression as a whole, or any subclasses other than speech, such as music, dance, painting, firecrackers, or “symbolic speech,” defined as action (e.g., flag burning) meant to express an opinion by non-verbal means. Nevertheless, the Supreme Court has decided that the Constitution protects non-verbal as well as verbal expression. (Had the Framers meant to do so they would have said so. After all, non-verbal expressions were not unknown to them, nor was the term “expression.”)