Observations: The First Amendment and Pornography

It appears that the only person in the United States who knows that pornography is not protected speech under the First Amendment is Henry E. Hudson, chief prosecutor for Arlington County, Virginia and new head of the Attorney General’s Commission on Pornography which cranked up operation last June. In Arlington County, he did what most law enforcement officials will not do when faced with pornography. He enforced the law.

He had lots of legal history behind him. These are the cases. See for yourself,

*Frohwerk v. U.S., 39 S. Ct. 249 (1919), 249 U.S. 204, 63 L. Ed. 561.

*Chaplinsky v. State of N.H., 62 S. Ct. 766 (1942), 315 U.S. 568, 86 L. Ed. 1031.

*Winters v. People of State of N.Y., 68 S. Ct. 665 (1948), 333 U.S. 507, 92 L. Ed. 840.

*Beauharnais v. People of State ofIll., 72 S. Ct. 725 (1952), 343 U.S. 250, 96 L. Ed. 919.

*Roth v. U.S., 77 S. Ct. 1304 (1957), 354 U.S. 476, 1 L. Ed.2d 1498.

*Ginzberg v. U.S., 86 S. Ct. 942 (1966), 383 U.S. 463, 16 N.Y.S. 2d 31.

Frohwerk v. U.S. determined that the First Amendment does not give immunity for every possible use of language; Chaplinsky v. State of N.H. found that “freedom of speech” is not absolute at all times; Winters v. People of State of N.Y. states that lewd, indecent, obscene or profane magazines are subject to control; Beauharnais v. People of State of Illinois points out, again, that freedom of speech is not absolute; Roth v. U.S. found, among other things, that there is no need to connect obscenity directly with anti-social behavior in order for it to be unprotected under the First Amendment; and Ginzberg v. U.S. showed that sales of publications which appeal to prurient interests do not constitute sales of constitutionally protected materials.

Who cares?

That is precisely the problem.

Until the porn-king starts eyeing you on the subway, or the pornographic magazine falls out of your child’s teacher’s desk, or the rapist leaves pornographic photos behind in your neighborhood, you’re probably inclined to believe that pornography is a victimless crime.

It isn’t. A considerable body of academic writing has proved the direct causal relationship between hostile feelings and actions toward women by males exposed to pornography. Even one viewing of a pornographic movie can change a man’s attitude toward rape. Still, few people believe that pornography leads to anti-social behavior, (over and above the fact that it constitutes anti-social behavior in and of itself).

Pornography is advertised, with varying degrees of blatancy, across the nation. For world-class spitting in the eye of the law, try New York’s Times Square, Boston’s “Combat zone” or New Orlean’s Bourbon Street. If you just want to see obscene material, freely published and sold in the U.S., try the Library of Congress or the New York Public Library, each of which subscribes to SCREW, the blasphemous weekly pornographic tabloid adjudged obscene by the highest court in the state of New York (in People v. Heller, 33 N.Y.2d 314 (1973) following the principles laid down in Miller v. California, 413 U.S. 15 (1973).

While these materials include some of the most incredible, humanly debasing filth imaginable, what the porn-kings know is that every local prosecutor except Henry Hudson won’t bother to go after anything more than an occasional child pornographer. Most policemen don’t even know that selling pornography is illegal, and even if you do get a porn-pusher ticketed (or, heaven forbid, arrested) chances are he’ll be back out before sundown purveying his wares.

What can be done? Who knows. Sure, there are more important things to worry about—networks of white slavers who deal in young boys, ax murderers, street corner “drugstores.” But pornography daily attacks you, the way you are regarded, treated, thought of, whether you are male or female.


  • Phyllis Zagano

    When Crisis was originally published in 1982, Phyllis Zagano was Assistant Professor in the Department of Communications at Fordham University.

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