Censor the mass media? In theory, I agree. It defies common sense to say that education is morally trivial; and we are educated, for better or worse, through various media. The case for censorship — or regulation, as I prefer to call it — is simply this: Society has a right to reduce the moral pollution that, left unregulated, would effect its “caninization,” to use Lowenthal’s term.
Historically, it has been understood that the exercise of this right need not wait until caninization is actually upon us, because then it is too late. Nor has it been thought necessary, before regulations could be drafted, to offer conclusive proof of, or even empirical data suggesting, the harm to society caused by media pollutants. The case for censorship, historically, has been a case for acting upon what people know in their bones to be true. Even the Supreme Court has recognized this. In Paris Adult Theater, decided along with Miller v. California in 1973, the Court said that legislatures could act against obscenity on the basis of certain “assumptions” grounded in “the sum of [human] experience.”
The question Lowenthal does not explore is how we get where he wants to go. The law, in regard to obscenity in particular, stands in the way. Lowenthal notes, correctly, that obscenity has never been protected by the First Amendment but also that, in the Miller case, the Court narrowed the legal definition of obscenity to hard-core pornography. This, and really only this, may be regulated without fear of reversal by the courts. But Lowenthal does not go on to say what the legal definition of obscenity ought to be. This is no mere detail: It is the issue that confounded the Court for years, until it finally agreed on a definition in Miller. The Court is not going to change its mind and expand the definition of obscenity unless it is asked to, and it won’t be asked to unless legislation produces the necessary legal challenge, and there won’t be such legislation unless someone suggests what it should look like.
There is, too, the issue of persuading the public. For at least 150 years, few people thought it a contradiction of free speech to regulate obscenity. Indeed, the consensus against obscenity was so strong that it was challenged only in the 1950s. In that former era, legislatures could restrain obscenity without having to think very long about what they were doing; assumptions grounded in human experience governed. Now, rights talk has altered popular understandings of citizenship, and any move against obscenity — or violence, for that matter — is unlikely to succeed so effortlessly. The old consensus is gone. Can a new one emerge?
I am not confident one will; nor, I take it, is Lowenthal. If there is a benefit from the three decades of increasing violence and lewdness in the media, it is that the effects of this development can be studied. But while the many studies of the impact on society of media obscenity and violence show correlation with anti-social behavior, they do not demonstrate causation. Meanwhile, the leading cultural indicators are not reporting unremittingly bad news. In fact, the murder rate across the country is down. So is violence in schools, Littleton notwithstanding. To those demanding data, as many will who never lived in the older America, the danger from obscenity and violence may seem distant and unreal. That is why it makes sense, for the moment, to employ methods other than regulation — especially methods targeting particular populations. Sponsor boycotts, for example. And journalism that shames Hollywood.
The problem Lowenthal addresses is part of a larger one. Ours is a politics of liberty, but it was understood at the Founding that such a politics could not survive without a certain degree of virtue in the people. For most of our history, we framed our laws in accord with this insight. It is only in recent decades that the disabling of America has occurred, as the right of self-government — once exercised so as to support virtue — has been diminished in favor of personal rights. We are now in uncharted territory, which is precisely our problem. Is it possible for the American experiment to endure without substantially more latitude for legislation in behalf of the moral character of the community? We do not know, to borrow from Lowenthal. And we may find out.
Terry Eastland is publisher of the American Spectator and editor of Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State.
