principle of moralistic paternalism. How else can we explain why the Court
recognizes a state interest in proscribing pornography as such, even when
privately and unobtrusively used by willing adults? Moralistic paternalism,
however, is extremely difficult to reconcile with the Constitution, which the
Court has interpreted in other cases to permit responsible adults to go to
Hell morally in their own way provided only they don't drag others unwillingly along with them. "In Stanley," writes Brennan, "we rejected as
'wholly inconsistent with the philosophy of the First Amendment' the
notion that there is a legitimate state concern in the 'control [of] the moral
content of a person's thoughts.' "
94 Brennan concludes then that there is no
legitimate state concern in preventing the enjoyment of pornography as
such, but that there may be valid state interests in regulating the "manner of
distribution of sexually oriented materials,"
95 these being, presumably,
prevention of the corruption of children, protection of captive audiences
from offense, and the preservation of neighborhoods from aesthetic decay.
Brennan thus ends up precisely where years earlier he could have begun:
with a concept of pornography as a potential source of public nuisance
subject to control by statutes that satisfy the provisions of a properly
mediated offense principle. Where pornography is not a nuisance, then it
can be none of the state's business.
Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from mere
trifling annoyances to serious harms. It is an obvious truth that each individual in a community
must put up with a certain amount of annoyance, inconvenience and interference, and must
take a certain amount of risk in order that all may get on together. The very existence of
organized society depends upon the principle of "give and take, live and let live," and
therefore the law of torts does not attempt to impose liability or shift the loss in every case
where one person's conduct has some detrimental effect on another. Liability is imposed only
in those cases where the harm or risk [or inconvenience or offense] to one is greater than he ought to be required to bear under the circumstances. . . . RESTATEMENT OF TORTS §822,
comment j ( 1939).
W. PROSSER, HANDBOOK OF THE LAW OF TORTS 597 ( 4th ed. 1971).
"The world must have factories, smelters, oil refineries, noisy machinery, and blasting,
as well as airports, even at the expense of some inconvenience to those in the vicinity, and the
plaintiff may be required to accept and tolerate some not unreasonable discomfort for the
general good. . . . On the other hand, a foul pond, or a vicious or noisy dog, will have little if
any social value, and relatively slight annoyance from it may justify relief." Id. at 597-98 (footnotes omitted).
High on the honor roll of those who have not made this pernicious mistake is the late Paul Goodman, who wrote in his article Pornography, Art, and Censorship, reprinted in
PERSPECTIVES ON PORNOGRAPHY 42-60 (
D. A. Hughes ed. 1970) that "[t]he pornographic is not ipso facto the obscene," but rather simply that which is designed and used for the purpose of