HOUSE_OVERSIGHT_017203.jpg

4.2.12 WC: 191694 back to me in shock. “They don’t follow the Supreme Court in the United States,” he exclaimed. “Now that’s a subject worthy of study,” I replied. It is important to remember that in a democracy, even a democracy in which the Supreme Court plays so central a role, that in the end the people decide. This is especially true in an area, like obscenity, where “community values” help define the law. Such values are ever-shifting and subject to influence. While the Supreme Court has insisted that the government has the power to punish (and otherwise regulate) the showing and viewing of “obscene” films in adult-only theaters (and on cable and “on demand” television), the people have voted the other way with their feet (and their remotes). The law in action today bears little resemblance to Chief Justice Berger’s “categorical...disapprov[al] of [my] theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only...” The law in action more closely resembles the approach I advocated in my first encounter with the law of obscenity back in 1969. I promised Judge Aldrich that if we lost in the Supreme Court, I would continue, as a lawyer, to continue to urge acceptance of the argument that the government has no business telling a consenting adult what he may or may not watch in a theater (or video or TV) from which children are excluded, so long as the “externalities” —that which appears in public view outside the theater—is not obscene. I have kept my promise, and despite the Supreme Court’s continued insistence—most recently in the violent video games case—that “obscenity” is not protected by the First Amendment, porn is widely available to consenting adults who choose to watch it without thrusting it upon unwilling viewers. That’s the law in action. Inevitably, the law, as articulated by the courts, will follow the law in action, lest it become irrelevantly anachronistic or patently hypocritical. Hypocrisy, it has been said, is the homage paid by vice to virtue. In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of Puritanism in a world of prurience. A puritan, H.L. Menkin once remarked, is a person who spends his days worrying that somewhere, somehow, someone is having fun. T. B. Macaulay once observed that “The Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.” Perhaps that’s why our “Puritan” former Chief Justice insisted on comparing adult films to bear-baiting. Some adults enjoy watching obscene films. Although some puritans and feminists hate this, there is no evidence that this activity causes the type of harm that government should be empowered to prevent by censorship.*° Most Americans seem to understand that pornography, while offensive to some, is not provably harmful to others. That’s why obscenity prosecutions have a relatively low rate of success. I have been involved in dozens of obscenity cases over the years and do not recall ever losing one. In addition to litigating many obscenity cases, I have written extensively on the subject. My article “Why Pornography?” set out to determine whether there is any actual relationship between “hard-core pornography” and violence against women. It began by disputing Justice Potter Stewart’s famous line that although he could never “define” hard core pornography, “I know it when I see it.” That may have been true before radical feminists targeted pornography as a major cause of rape and other violence against women. Now the radical feminist definition of hard-core pornography would be unrecognizable to Justice Stewart, as well as to social scientist who seek “© Even if there were evidence that it harmed the viewer, that would not be a good enough reason for banning it, so long as there is no evidence it harms others. See Dershowitz, Shouting Fire, Why Pornography? pages 116 HOUSE_OVERSIGHT_017203