Friday, April 30, 1971.
THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY. A New York Times Book, with a special introduction by Clive Barnes. Bantam Extra, 1970. 720 pp. $1.65.
". . . of course, I shouldn't tell you this, but she advocates dirty books!"
"Dirty books!!!?"
"Chaucer . . . Rabelais . . . Balzac!"
"Dirty books!!!?"
"Chaucer . . . Rabelais . . . Balzac!"
— Lyrics from The Music Man.
SHE DOES INDEED ADVOCATE dirty books, this U.S. government report and, in doing so, has set off a chain reaction of charges and counter-charges that are likely to echo throughout next year's [1972] presidential election campaign.
The commission, its composition, conduct, manner and methods have all been the subject of criticism, much of it levelled by discontented members of the commission itself. Its recommendations have caused heated controversy.
In contrast to the emotionally-charged rhetoric that has surrounded it, the report is a sober, carefully researched and rather dry document. Its authors state that an extensive program of scientific investigation was unable to provide them with any significant evidence that pornography caused anti-social behaviour.
U.S. public opinion, they say, opposes restrictions on the individual's right to see and read what he (or she) pleases and, in the absence of any demonstrable harmful effects, they recommend that the U.S. adopt what has come to be known as "the Danish solution."
In effect, they would strike the words "obscenity" and "pornography" from the statute books. The Report itself avoids these difficult-to-define terms, preferring to call such publications "explicit sexual materials."
Adults would be given complete freedom of choice with respect to such materials, while laws designed to protect juveniles would be strengthened.
Specifically, the report asks that all unsolicited mailings and public display of such materials be banned. It would be a criminal offence to display or sell such explicit sexual material to children, and the report's model legislation contains some precise definitions to simplify law enforcement.
Closely tied to the legal recommendations, and equally important, are four common-sense social recommendations.
The commissioners urge that the U.S. launch a "massive sex-education effort;" that the numerous questions raised by their Report be made the subject of continued public discussion as well as formal research; and that citizens organize themselves at the local level to promote such reforms.
In summary form, The Report seems eminently sensible. But, in fact, only 12 of the 18 commission members voted in favour of the final recommendations.
Admittedly, two of the dissents were minor. Irving Lehrman, a Miami Beach rabbi, and Cathryn Spelts, a South Dakota school teacher, felt that further studies needed to be done before a complete repeal of adult restrictions could be justified.
But, with the others, no compromise was possible. California's Attorney General Thomas Lynch is politically committed to battling smut. Cincinnati lawyer Charles Keating Jr., founder of Citizens for Decent Literature Inc., has built a career on his stand against pornography.
The most damning charges, though, were levelled by a pair of clergymen, who prepared their own counter-report. Morton Hill, a New York Jesuit, and Winfrey Link, a Tennessee Methodist, branded the majority report "a Magna Carta for the pornographers."
Their impassioned dissent charges that the commission's purpose from the outset was to legalize pornography and that all of its resources had been used to find evidence supporting that position. They claimed that material that did not support the commission's purpose was suppressed and concluded that "the commission has not carried out the mandates of Congress."
In their last charge, at least, they were absolutely right.
The Commission on Obscenity and Pornography, created under president Lyndon Johnson, did not do the job that Congress wanted it to do.
It was perhaps with an eye towards the upcoming election year [1972] that the U.S. Congress found the traffic in obscenity and pornography "a matter of national concern."
The commission's assignment was perfectly clear. They were a task force sent forth by Congress to slay a troublesome dragon. Once and for all, the politicians wanted a definition of obscenity and some anti-smut legislation that the U.S. Supreme Court couldn't just throw out the window.
Fortunately for the social sciences, commission chairman William B. Lockhart refused to view his task in such a simple light.
As dean of the University of Minnesota Law School, Lockhart had some idea of the difficulties involved in trying to reconcile subjective morality with objective principles of law. Besides, he was personally skeptical about the validity of the unstated premise behind his task: that pornography is of necessity a bad thing.
Given two years and a budget of $2 million, the commission began by funding 59 separate research projects. A small army of sociologists and psychologists set to work, putting a thousand years of folk truths to the test.
Their results proved counterintuitive — that is, they ran counter to the common-sense, or intuitively expected, result. Everyone from FBI Director J. Edgar Hoover to Aunt Minnie in Des Moines knows instinctively that pornography is an unmitigated evil.
Science, on the other hand, had a difficult time trying to prove it.
A number of tests even seemed to indicate that individuals with some exposure to pornography were healthier, better adjusted and more normal than those without. The commission's technical reports fill 10 volumes.
In their dissent, Hill and Link point out, validly, that no individual project was conclusive, the results of some were suspect and a few were just plain meaningless. Overall, though, the pattern was hard to miss.
In developing research projects the commission was looking beyond its own limited lifespan. A number were initiated in the hope that their work would be continued long afterwards, in keeping with commission recommendations.
Congress had asked for a weapon. Instead, the Lockhart commission submitted a scholarly lecture, one that advised against legislating on the basis of unproven premises.
The Hill-Link dissent, on the other hand, gives Congress a bludgeon large enough to smash the country to pieces. With Keating's concurrence, the clergymen commissioners recommend a tightened definition of legal obscenity, uniform state and federal obscenity statutes and an interlocking network of smut-fighting agencies at every level of government.
According to their plan, the state and federal attorneys-general would all establish flying squads of "expert" obscenity prosecutors who would work in concert with specially-trained state police anti-pornography divisions.
Each state is urged to establish a permanent Obscenity Laws Commission to co-ordinate anti-smut activities and conduct sub-judicial hearings and inquests.
In addition, each state is urged to establish a separate commission with similar powers to "encourage morality in youth and prevent its defilement by obscene publications." By Hill-Link standards, a person would legally remain a youth until he reached the age of 19.
The truly frightening thrust of their logic becomes most clear in their recommendation that states' attorneys-general be given the power of pre-publication review over 22 different kinds of potentially salacious material. Their list includes underground newspapers, mimeographed underground newspapers, sensational tabloids and lyrics on commercially distributed rock records.
With the best of intentions, the Reverends Link and Hill would establish a national system of Star Chamber courts, half of them designed to protect an increasingly disaffected American youth from itself.
What they propose is much more than a campaign against unmitigated prurience; it is the systematic suppression of youth's irreverent counter-culture.
"We believe," the Hill-Link report states, "government must legislate to regulate pornography, in order to protect the social interest in order and morality."
Unfortunately the problem of obscenity, as the majority Report tries to point out, is more than a question of filthy pictures, explicitly sexual materials or crude-talking kids.
Pornography is a commodity for which a broad cross-section of Americans annually feel a billion-dollar need. Its continued existence poses a more serious threat to the U.S. conscience than to its morality.
The Hill-Link report shows one way. Local laws supporting state laws supporting federal law in an all-out war against an unproven evil.
The majority Report shows another. It implies that the only law applicable to the problem of pornography is the law of diminishing returns.
It suggests that the greatest evil attributable to pornography may well be eyestrain. It urges that free men and free women be allowed to make their own free choices.
The above is a restored version of a Province review by Michael Walsh originally published in 1971. For additional information on this archived material, please visit my FAQ.
Afterword: Born in Des Moines, Iowa in 1906, William Bailey Lockhart was an ordained minister when he graduated from Harvard's law school in 1933. In the early 1960s, he was among the constitutional scholars called on by John F. Kennedy to advise the young president on civil rights legislation. Lockhart had been dean of the University of Minnesota School of Law for 10 years when, in January 1968, Lyndon Johnson appointed him to serve as the chairman of the President's Commission on Obscenity and Pornography. Johnson's March 1968 decision not to run for re-election meant that the commission's final report was delivered to his successor, Richard Nixon, who "categorically" rejected its findings in an October 1968 speech, branding the report "morally bankrupt." Asked for his reaction by the Harvard Crimson newspaper, Lockhart said "it is unfortunate that his advisors have led him to repeat the tired arguments of the past, based on assumptions, guesses, and fears without scientific backing," adding that "our task was not to arrive at the conclusions the administration holds, but to make scientific studies of pornography."
U.S. senators followed their president's lead, rejecting the report by a 60 to five vote (with 34 abstentions). The legal issue — a U.S. Supreme Court ruling that citizens had the right to view whatever they wished in the privacy of their own homes — remained, and American entrepreneurs spread that First Amendment umbrella over what has become a multibillion-dollar business. The divisive controversy also remained. In 1985, President Ronald Reagan set up his own commission of inquiry under his Attorney General Edwin Meese. Like Reagan's other great idea, the Strategic Defense Initiative, the 1986 Meese Report was more fiction than science, and it's remembered for its risible attempts to sound academic while recycling the rhetoric of America's religious right. Around the same time, headline writers were reintroducing newspaper readers to Charles Keating Jr., the anti-porn crusader and dissenting commissioner mentioned in my review of the 1970 report. At the time, the U.S. was going through the multibillion-dollar financial meltdown known as the savings-and-loan crisis. Keating, by then an Arizona banker, faced charges of fraud, racketeering and conspiracy and, in 1993, he was sentenced to 12½ years in prison.
Bill Lockhart, by contrast, followed his service as commission chairman with 20 years as professor of Constitutional Law at the University of California. We can only guess how different our popular culture and sexual mores might be today, had the sensible, science-based recommendations contained in his report been accepted. He retired in 1994 at the age of 88, and died a year later. Today (May 25) is the 110th anniversary of his birth.
See also: In 1981, the National Film Board of Canada had a major popular success with its feature documentary Not a Love Story: A Film about Pornography, a look at the "problem" that channeled the attitudes of the Meese rather than the Lockhart inquiry.