Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, February 17, 2006

"Private Acts, Public Interests"

In the February issue of First Things, Robert George (Princeton) has an essay called "Private Acts, Public Interests."  (Unfortunately, a link is not yet available.)   In the piece, he discusses the "public" nature of the interests that might justify morals legislation regulationg "private" conduct (e.g., recreational drug use, production and consumption of pornography, etc.)  Focusing on the regulation of pornography, he has this to say about the "public interest in prohibiting or restricting pornography":

That interest is not, fundamentally, in shielding people from shock or offense.  It is also something much more substantial:  the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life, and the choices effectively available, to themselves and their children, in a domain of human affairs marked by profound moral significance.

When we bring this reality into focus, it becomes apparent that the familiar depiction of the debate over pornography regulation as pitting the "rights of individuals," on the one side, against some amorphous "majority's dislike of smut," on the other, is false to the facts.  The public interest in a cultural structure . . . is the concrete interest of individuals and families to constitute "the public."

Expressed this way, the case for pornography regulation sounds more like the arguments for the Clean Air or Clean Water Act, than for "comstockery," doesn't it?  (In the Paris Adult Theatre case, Chief Justice Burger had invoked the "interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.")

George's essay reminded me of an opinion, from a few years ago, written by Judge Richard Posner, that invalidated a local ban on minors playing violent video games.  He wrote (rejecting the asserted similarity between "obscene" materials, which may be regulated, and violent video games):

The main worry about obscenity, the main reason for its proscription, is not that it is harmful, which is the worry behind the Indianapolis ordinance, but that it is offensive. A work is classified as obscene not upon proof that it is likely to affect anyone's conduct, but upon proof that it violates community norms regarding the permissible scope of depictions of sexual or sex-related activity.Obscenity is to many people disgusting, embarrassing, degrading, disturbing, outrageous, and insulting, but it generally is not believed to inflict temporal (as distinct from spiritual) harm; or at least the evidence that it does is not generally considered as persuasive as the evidence that other speech that can be regulated on the basis of its content, such as threats of physical harm, conspiratorial communications, incitements, frauds, and libels and slanders, inflicts such harm. . . .  No proof that obscenity is harmful is required either to defend an obscenity statute against
being invalidated on constitutional grounds or to uphold a prosecution for obscenity.  Offensiveness is the offense.

As a descriptive matter, who is right?  That is, whose view comes closer to capturing what is really going on, for better or worse, in free-speech law relating to pornography?  Or do both George and Posner miss the mark?

https://mirrorofjustice.blogs.com/mirrorofjustice/2006/02/private_acts_pu.html

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