The Report of the Commission on Obscenity and Pornography
It is surely odd that the only bequest of President Johnson’s to be repudiated by the votes of all but five senators and to be denounced as “morally bankrupt” by Mr. Nixon should be not his war but this report of his Commission on Obscenity and Pornography. Mr. Johnson’s virtues in this case seem to have occasioned more scandal than any of his vices have. And how virtuous this work ordained by him seems to us now as it lies there abused and violated, reduced almost to inaudibility except as the strangled cry of that Church of the Enlightened now in Exile—an exile that may, sooner than we think, be wholly silenced, the pursuit being as implacable as it is sullen.
We want then so much to cherish the poor thing. It somehow makes a great difference that the encyclicals of the social psychologists, having been applauded without being read under the Democrats, are now scorned without being read under the Republicans. The Church Triumphant might have seemed inadequate; but the Church Beleaguered looks more and more like our mother. The social psychologists have, to be sure, been especially tempted by the fraudulent when they put on their ceremonial robes as Presidential commissioners. But who among us will not be gentle with the fraud when he shares its piety, some compromise between truth and interest being as easy as it is ancient.
Still, someone, somewhere, owes us some critical examination of the Report on Obscenity, if only as an autopsy on a method of argument now dying and doubtless to be succeeded by a worse one. It was, after all, by adjusting their methods to their motives that so many of the liberal social scientists managed their transient authority—at best more respected than listened to—in our debate on large public questions. Having in most cases chosen their sides as moralists, they seemed to feel the need to present themselves as utilitarians and to give a weight to dubious research which, as practical men, they would be embarrassed to claim as the basis for sound principle. This posture in argument, the habit of a generation, seems especially inappropriate to the case at hand: the pornographer very clearly has rights, but it is hard to argue that he has uses.
The endurance of this habit of moral argument which appeals almost exclusively to utility may explain why the Commission, in defending its recommendations against statutory restraints on pornography, nowhere seems to mention the First Amendment, even though its chairman is dean of the law school of the University of Minnesota. There is, however, one assertion of living historical tradition: “Americans deeply value the right of each individual to determine for himself what books he wishes to read and what pictures or films he wishes to see.” This proposition would be more clearly beyond dispute if the President and 90 percent of the Senate had not so recently proclaimed that they feel otherwise. But, whether it is true …