A MODERN MODE FOR HANDLING OBSCENITY

My last posting addressed the difference between the traditional and the modern and how that distinction affects reasoning within the construct of federalism. I pointed out that within our national history, a traditional form of federalism played a crucial role in determining the essence of our political ethos. I also pointed out that traditional thought and reasoning is concrete and unequivocal; it commits to definite beliefs. Often the beliefs reflect religious dogma. As such, traditional thought and reasoning lends itself to clear visions of the good and it definitely tends to place priority of a particular vision of the good over that of the right. By “right” the reference is not to what is correct, but to what we as humans have legitimate license to do.

I have also made the argument in past postings that while initially the mental construct that prevailed during the initial phases of our political life was traditional federalism, the growing influence of a modernistic construct grew in prevalence until, after World War II, it became prominent. That construct I have named the natural rights construct. As a modern view, the natural rights construct places the emphasis on the right over the good. In a previous posting, Neutrality and Speech,¹ I trace the history of court decisions and how they reflect this shift in terms of what is judged to be allowable speech. In this posting, I want to take up that effort and look specifically at the shifting view the courts have had on obscenity.

More specifically, I want to address the uneasiness such a shift causes in those who have to deal with the actual policies involved. Probably no area of concern is more “touchy” in our culture than that of sex. Within the Puritanical tradition of American culture, sex and our handling of sexually explicit materials have had a telling history. That history reflects, in stark contrast, the separate phases of how our acceptance of sexual content has become ever more liberalized.

According to Michael Sandel,² this liberalization has taken the following progression: first, prohibition based on local standards of decency, then prohibition based on tortured rationalizations in which thinly veiled concerns for the good are proclaimed to be actually neutral concerns for legitimate state interests such as safety and security and, finally, tolerance of the dissemination and consumption of obscene material with minimal restraints to protect the young or other sensitive zoned localities. This whole shift is predicated on a commitment – a commitment to the First Amendment right of free speech. But I would submit that at its base is the issue over our ever increasing concern for each of us to determine what values we, individually, determine are correct for ourselves. Fortunately or unfortunately, many of us value the consumption of speech that explicitly illustrates sexual scenes and behavior better known as obscenity. Whether this is good or not is difficult to determine under modernistic reasoning. Under such reasoning, even to be considered for legal prohibition, questionable material needs to be demonstrably offensive or threatening to legitimate state interests. For example, in response to the decisions which characterized the tortured rationalization phase, current courts demand that any claim associating the consumption of obscene materials to behaviors affecting the safety or security of citizens needs to be supported with empirical evidence. In such cases, commonsense arguments or arguments based on sectarian precepts are not sufficient. If you argue that obscene materials lead to a higher incidence of rape or other sexual crimes, you have to provide the appropriate studies that support the contention. A possible exception to this general standard is the case of published obscene materials that depict underage youths. In that case, the fact that children do not have a legal standing that permits them to voluntarily submit to that kind of exposure, even when and if parental permission is provided, does indicate a bias toward a priori restraint. But even in that case, I am sure that psychological studies can be readily supplied that would indicate long term problems for those children so exploited. Overall, the point is that any public policy prohibiting the exercise of behavior protected by our identified and codified rights needs to be justified by findings based on neutral ground and supported by empirical study. Religious or other parochial beliefs will not do.

Does a call for a modern version of federalist thought and reasoning abandon what its traditional version called for: a promotion of the good? Here, an advocacy for federalism is challenged not so much from a theoretical point of view, but from a political point of view. How can any concern for the good in our public policy be acceptable to a populace that has adopted a natural rights perspective? Such a populace is readily disposed to see any government action promoting its version of the good as an overreach into our private lives. Whether government policy prohibits the production, dissemination, and consumption of obscene materials falls under such a rubric.

First, the purpose here is not to outline a propaganda program for our public schools. The purpose is to advocate a social philosophy or theory that can provide a foundation for a civics curriculum. Second, as such, a philosophy or theory need not outline a set of beliefs that students are called upon to accept, but it provides a view of politics and government upon which an educator can base instructional questions – exactly what the natural rights construct does for most contemporary civics instruction today. Third, to the extent that federation theory has a moral commitment, those who utilize the theory should not be shy about expressing to students what that commitment is. This should be done not as espousing the truth, but as providing a choice which reflects the view of the majority and can be criticized as to its appropriateness and functionality. Neither should governmental jurisdictions be shy in expressing what the collective sense of the moral is. Expression can and should fall short of prohibitions when such stands come in conflict with protected rights. But such expressions should be clear and direct. Here, the use of proclamations and resolutions can be the vehicles by which such collective judgments can be expressed. And what is the moral standard for such judgments? As I have argued in this blog, my view of what a liberated federalism morality should be is a commitment toward the promotion of societal welfare – with the trump values of societal survival and the advancement of a society's goal and aims (a value that presupposes a normative judgment by the collective).

So how do obscene materials fit or relate to this theorizing or moralizing? In terms of instructional strategy, concern over the advancement of a society's goals and aims brings a focus on the communal quality of that society. Why? Because to reach those goals and aims, social capital is demonstrably important. Robert Putnam³ writes of social capital; he defines social capital as a societal quality characterized by having an active, public-spirited citizenry, egalitarian political relations, and a social environment of trust and cooperation. The instructional question would be: does the publication, dissemination, and consumption of obscene materials diminish the levels of social capital in a society? This is a legitimate question to ask high school students – maybe even middle school students. How does the right of free speech relate to this trade? Is this – the preemption of legislation that prohibits obscenity – what our first national congress meant when the right was added to our constitution or when the authors and ratifiers of the Fourteenth Amendment extended basic rights protections against state governments? Many such questions can be studied in appropriate classroom settings.

So, the point is that federation theory does not need to abandon its concern for the good. It does, though, need to take on a more modern approach; that is, an approach that shifts away from either propagandizing a set of concrete values, as was the case with the traditional, or a complete abandonment of treating moral questions in the classroom, as has been the case under the natural rights curriculum. More specifically, the use of federation theory needs to be open to incorporate both scientific research and non- dogmatic moral analysis. 

 

1Posting for April 8, 2013.

2Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.

3Putnam, R. D. (2000). Bowling alone: The collapse and revival of American community. New York: Simon and Schuster.