Yet it is clear that if there is something special about speech, something that warrants a constitutional guarantee, it is the capacity of speech to communicate ideas. There is no other distinction between speech and other human activities that go unprotected by the Constitution. That is the point the Chaplinsky Court grasped. Non-speech activities can give as much pleasure as speech, develop as many human faculties, and contribute to personal and social well-being. The only difference between speech and other behavior is speech’s capacity to communicate ideas in the effort to reach varieties of truth. Celebration in song of the ripping of vaginas or forced oral sex or stories depicting the kidnapping, mutilation, raping, and murder of children do not, to anyone with a degree of common sense, qualify as ideas. And when something worthy of being called an idea is involved, there is no reason to protect its expression in lewd, obscene, or profane language. Such language adds nothing to the idea but, instead, detracts from it.
Today’s Court majority would have difficulty understanding Chaplinsky’s statement that an utterance could inflict an injury to morality. Morality itself has become relativized in our constitutional jurisprudence, so that the Court no longer has the vocabulary to say that something is immoral and, for that reason, may be banned by the legislature. As Walter Berns wrote:
The Court decontrolled the arts, so to speak, and the impact of that has been profound. It not only permitted the publication of sex but it caused the publication of sex—or, to coin a word, the “purification” of sex…. The immediate and obvious consequence of [the end of censorship] is that sex is now being made into the measure of existence, and such uniquely human qualities as modesty, fidelity, abstinence, chastity, delicacy, and shame, qualities that formerly provided the constraints on sexual activity and the setting within which the erotic passion was enjoyed, discussed, and evaluated, are today ridiculed as merely arbitrary interferences “with the health of the sexual parts.“13
Berns wrote that in 1976, when he could have had no idea just how far the publification of sex would be carried. We may not know that even now. Our experience after the end of censorship suggests that there are few or no limits to depravity.
It may be too much to ask that the Supreme Court, as presently constituted, revisit and revise its First Amendment jurisprudence. Most people think of the Court as a legal institution because its pronouncements have the force of law. But the perception is flawed. The Court is also a cultural institution, one whose pronouncements are significantly guided not by the historical meaning of the Constitution but by the values of the class that is dominant in our culture. In our day, that means the cultural elite: academics, clergy, journalists, entertainers, foundation staffs, “public interest” groups, and the like. The First Amendment is central to the concerns of such folk because they are chatterers by profession, and their attitudes are relativistic and permissive. The mention of censorship, even of the most worthless and harmful materials, causes apoplexy in the members of that class.
The truth is that the judiciary’s view of pornographic sex and pornographic violence will not change until the culture to which the Court responds changes. There is no sign that that will occur any time soon. The public debate in the area of the “arts” is not encouraging. Mapplethorpe’s homoerotic photos and Serrano’s “Piss Christ” were displayed with grants from the National Endowment for the Arts. So intimidating has the culture of modern liberalism become that cultural conservatives were reduced to complaining that works like these should not be subsidized with “taxpayers’ dollars,” as if taxpayers should never be required to subsidize things they don’t like. If that were the case, government would have to close down altogether. Both spending and taxation would be at zero. To complain about the source of the dollars involved is to cheapen a moral position. The photographs would be just as offensive if their display were financed by a scatterbrained billionaire. We seem too timid to state that Mapplethorpe’s and Serrano’s pictures should not be shown in public, whoever pays for them. We are going to have to overcome that timidity if our culture is not to decline still further.
Libertarians join forces with modern liberals in opposing censorship, though libertarians are far from being modern liberals in other respects. For one thing, libertarians do not like the coercion that necessarily accompanies radical egalitarianism. But because both libertarians and modern liberals are oblivious to social reality, both demand radical personal autonomy in expression. That is one reason libertarians are not to be confused, as they often are, with conservatives. They are quasi- or semiconservatives. Nor are they to be confused with classical liberals, who considered restraints on individual autonomy to be essential.
The nature of the liberal and libertarian errors is easily seen in discussions of pornography. The leader of the explosion of pornographic videos, described admiringly by a competitor as the Ted Turner of the business, offers the usual defenses of decadence: “Adults have a right to see [pornography] if they want to. If it offends you, don’t buy it.“14 Those statements neatly sum up both the errors and the (unintended) perniciousness of the alliance between libertarians and modern liberals with respect to popular culture.
Modern liberals employ the rhetoric of “rights” incessantly, not only to delegitimate the idea of restraints on individuals by communities but to prevent discussion of the topic. Once something is announced, usually flatly and stridently, to be a right—whether pornography or abortion or what have you—discussion becomes difficult to impossible. Rights inhere in the person, are claimed to be absolute, and cannot be diminished or taken away by reason; in fact, reason that suggests the non-existence of an asserted right is viewed as a moral evil by the claimant. If there is to be anything that can be called a community, rather than an agglomeration of hedonists, the case for previously unrecognized individual freedoms (as well as some that have been previously recognized) must be thought through and argued, and “rights” cannot win every time. Why there is a right for adults to enjoy pornography remains unexplained and unexplainable.
The second bit of advice—“If it offends you, don’t buy it”—is both lulling and destructive. Whether you buy it or not, you will be greatly affected by those who do. The aesthetic and moral environment in which you and your family live will be coarsened and degraded. Economists call the effects an activity has on others “externalities”; why so many of them do not understand the externalities here is a mystery. They understand quite well that a person who decides not to run a smelter will nevertheless be seriously affected if someone else runs one nearby.
Free market economists are particularly vulnerable to the libertarian virus. They know that free economic exchanges usually benefit both parties to them. But they mistake that general rule for a universal rule. Benefits do not invariably result from free market exchanges. When it comes to pornography or addictive drugs, libertarians all too often confuse the idea that markets should be free with the idea that everything should be available on the market. The first of those ideas rests on the efficiency of the free market in satisfying wants. The second ignores the question of which wants it is moral to satisfy. That is a question of an entirely different nature. I have heard economists say that, as economists, they do not deal with questions of morality. Quite right. But nobody is just an economist. Economists are also fathers or mothers, husbands or wives, voters, citizens, members of communities. In these latter roles, they cannot avoid questions of morality.
The externalities of depictions of violence and pornography are clear. To complaints about those products being on the market, libertarians respond with something like “Just hit the remote control and change channels on your TV set.” But, like the person who chooses not to run a smelter while others do, you, your family, and your neighbors will be affected by the people who do not change the channel, who do rent the pornographic videos, who do read alt.sex.stories. As film critic Michael Medved put it: “To say that if you don’t like the popular culture, then turn it off, is like saying if y
ou don’t like the smog, stop breathing…. There are Amish kids in Pennsylvania who know about Madonna.“15 And their parents can do nothing about it.
Can there be any doubt that as pornography and depictions of violence become increasingly popular and increasingly accessible, attitudes about marriage, fidelity, divorce, obligations to children, the use of force, and permissible public behavior and language will change? Or that with the changes in attitudes will come changes in conduct, both public and private? We have seen those changes already and they are continuing. Advocates of liberal arts education assure us that those studies improve character. Can it be that only uplifting reading affects character and the most degrading reading has no effects whatever? “Don’t buy it” and “Change the channel,” however intended, are effectively advice to accept a degenerating culture and its consequences.
The obstacles to censorship of pornographic and violence-filled materials are, of course, enormous. Radical individualism in such matters is now pervasive even among sedate, upper middle-class people. At a dinner I sat next to a retired Army general who was now a senior corporate executive. The subject of Robert Mapplethorpe’s photographs came up. This most conventional of dinner companions said casually that people ought to be allowed to see whatever they wanted to see. It would seem to follow that others ought to be allowed to do whatever some want to see.
The entertainment industry will battle ferociously against restraints, one segment of it because its economic interests would be directly threatened, the rest because, to avoid thinking, they have become absolutists about First Amendment freedoms. Then there are the First Amendment voluptuaries. The ACLU is to the First Amendment what the National Rifle Association is to the Second Amendment and the right to bear arms. The head of the ACLU announced in a panel discussion that the Supreme Courts failure to throw protection around nude dancing in night clubs was a terrible blow to our freedom of speech. Some years back, when I suggested to a law school audience that the courts had gone too far in preventing communities from prohibiting pornography, the then president of the organization compared me to Salazar of Portugal and the Greek colonels. Afterward he said he had called me a fascist. It is fascinating that when one calls for greater democratic control and less governance by a judicial oligarchy, one is immediately called a fascist. The ACLU seems to think democracy is tyranny and government by judges is freedom. That is a proposition that in the last half of this century our judiciary has all too readily accepted. Any serious attempt to root out the worst in our popular culture may be doomed unless the judiciary comes to understand that the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.
It is not clear how effective censorship of the Internet or of digital films on home computers can be. Perhaps it is true, as has been said, that technology is on the side of anarchy. Violence and pornography can be supplied from all over the world, and it can be wireless, further complicating the problem of barring it. We may soon be at the mercy of a combination of technology and perversion. It’s enough to make one a Luddite. But there are methods of presentation that can be censored. Lyrics, motion pictures, television, and printed material are candidates.
What we see in popular culture, from “Big Man with a Gun” to alt.sex.stories, is the product, though not, it is to be feared, the final product, of liberalisms constant thrust. Doing anything to curb the spreading rot would violate liberalisms central tenet, John Stuart Mill’s “one very simple principle.” Mill himself would be horrified at what we have become; he never intended this; but he bequeathed us the principle that modern liberals embrace and that makes it possible. We have learned that the founders of liberalism were wrong. Unconstrained human nature will seek degeneracy often enough to create a disorderly, hedonistic, and dangerous society. Modern liberalism and popular culture are creating that society.
9
The Rise of Crime, Illegitimacy, and Welfare
The United States has surely never before experienced the social chaos and the accompanying personal tragedies that have become routine today: high rates of crime and low rates of punishment, high rates of illegitimate births subsidized by welfare, and high rates of family dissolution through no-fault divorce. These pathologies are recent, and it is now widely accepted that they are related to one another.
The proximate cause of these pathologies is the infatuation of modern liberalism with the individual’s right to self-gratification along with the kind of egalitarianism, largely based on guilt, that inhibits judgment and reform. These pathologies were easy to fall into and will be very difficult to climb out of. There is, in fact, no agreement about how to cure them. It may be, in fact, that a democratic nation will be unable to take the measures necessary, once we know what those measures are.
If radical individualism and egalitarianism are the causes, we should expect to see their various effects produced at about the same time as one another. And that is what we do see. During the same years that popular culture was becoming ever more sordid, the pathologies of divorce, illegitimacy, and crime exploded. The story is well documented and may be quickly summarized. The more difficult question, particularly about illegitimacy and welfare, is how to escape what we have done.
Rates of illegitimate births and the commission of serious crimes began rising together and did so at the same time in both the United States and England.1 National illegitimacy statistics were first gathered in the United States in 1920. Illegitimate births then constituted 3 percent of all births. The proportion slowly went up to just over 5 percent in 1960, and then shot up to 11 percent in 1970, above 18 percent in 1980, and 30 percent by 1991. These are figures for the entire population. Black illegitimacy started from a higher base than white and skyrocketed sooner, reaching 68 percent in 1991. White illegitimacy had reached a little over 2 percent by 1960 and then shot up to 6 percent in 1970, 11 percent in 1980, and just under 22 percent in 1991. Combined black and white illegitimacy in 1992 was 32 percent. These are national averages; illegitimacy is much higher in lower-income communities and neighborhoods.
Crime displays the same pattern. National records about violent crime in the United States were first kept in 1960. The number of violent crimes in that year was just under 1,900 per 100,000 people; the number doubled within ten years, and more than tripled to almost 6,000 by 1980. After a brief decline, the crime rate began rising again and had reached almost 5,700 by 1992. It is thus apparent that crime and illegitimacy trends began rising at almost the same time and then rose together.
The figures suggest two things. One is that the social pathologies they reflect did not originate in the Sixties. Crime and illegitimacy began rising in 1960. The men and women (or boys and girls) responsible must have been born not much later than 1945, and the culture that influenced them was that of the Forties and Fifties. The moral chaos of the universities did not become manifest until the mid-1960s. That chaos and the rhetoric and violence that went with it surely contributed to the social breakdown the crime and illegitimacy figures reflect, but they could not have caused it. This suggests further that rising crime, illegitimacy, and student rebellion had a common cause. While the middle-class student radicals turned to dreams of revolution and the destruction of institutions, some of the lower classes turned to crime and sexual license, and probably for the same reasons. That fact bodes ill because it suggests a long-developing weakening of cultural constraints, constraints it will be very hard to put back in place.
A general cultural decline is also suggested by the fact that crime and illegitimacy began to surge at the same time. That means that rising illegitimacy was not then the cause of rising crime. The children born out of wedlock in 1960, no matter how precocious, could hardly have begun committing serious crimes in the same year. That fact does not by any means rule out the inference that, as these processes proceeded, illegitimacy became a major, probably the major, contributor to criminality. But the initial relation of the two re
minds us that humans do not respond solely to economic incentives and that a crime wave and a sexual revolution, though perhaps of lesser proportions, were on the way, with or without welfare payments.
Increases in crime are often associated with sudden increases in population, and the baby boom affected all levels of society. The jump in the population of lower-class youths was also a “vertical invasion of the barbarians” that the institutions of the culture—family, school, church—were not fully able to tame. These youths, as much as those destined for prestige universities, had available the new technologies of entertainment, and that entertainment was one of increasingly unbridled emotion and sexuality. The industry that produced such entertainment catered to adolescent fears and discontents, which are as abundant in one social class as another. The factors already discussed as contributing to student radicalism apply in this context as well. Though the trends that made the Sixties were in place long before that decade, the special factors (technology, affluence, etc.) that came together after World War II gave free rein and added impetus to the spirit that had been building.
While they were not influenced to the same extent as the white college students by liberal parents and professors, black youths heard the incessant liberal civil rights rhetoric which insisted then, as it often does now, that the black population’s difficulties were entirely due to racism. That message, endlessly repeated, can lead not only to civil rights laws but to fatalism, the aimless search for pleasure—since accomplishment is, by definition, blocked off—and to anger and violence. It should have been possible to campaign for civil rights laws without rhetoric so false and incendiary.
Slouching Towards Gomorrah Page 18
