Pornography and Censorship

Fred R. Berger

An observer of American attitudes toward pornography faces a bewildering duality: on the one hand, we buy and read and view more of it than just about anyone else, while, on the other hand, we seek to suppress it as hard as anybody else. I presume that these facts do not merely reflect a judgment of social utilities, namely, that the best balance of goods is achieved by having it available, but under conditions of prohibition! ¹ I believe, in fact, that this state of things reflects aspects of our attitudes toward sex, and much of the current controversy has tended to obscure this fact, and to ignore important issues concerning sex and freedom to which the pornography issue points.

There is an important reason why the pornography controversy in the American context has tended to be narrowly focused. Our First Amendment prohibits government from abridging freedom of speech and press. Whatever interpretation is to be given that amendment, it is, in fact, stated in absolutist terms, and carries no mention or definition of obscenity or pornography. This difficulty is exacerbated by the fact that in the commonlaw background of our legal system, there is very little litigation which established clear legal definitions and doctrines. Obscenity convictions in the form we know seem very much an invention of the 1800s, and the late

Reprinted from Social Theory and Practice, Vol. 4, No. 2 ( 1977), by permission of Social Theory and Practice and the author.

-83-