Obscenity and Public Morality

...In order to protect itself against threats to its shared values (whatever they may be), a society may properly resort to censorship...

...Published in 1969 and more recently in paperback, Obscenity and Public Morality is an indispensable book for all who seek to establish a free yet civilized society...

...The way men live--their "moral character"--is a matter of concern to others and to the society in which we all live...

...The fact that Huston's memo originated not with Huston but with the various intelligence agencies has yet to be mentioned...

...Yet, Clor replies, the Constitution does not specify precisely what an "abridgement" may be or what the Founders actually considered to be ~'the freedom of speech...

...Certainly this book--in its meticulous analysis and political philosophy-bears the marks of Straussian scholarship...

...Yet even if Clor estabhshes that obscenity control is arguably constitutional, he still must answer the objection that obscenity is not a political problem at all, that it has no harmful effects on other people or the community...

...Self-government requires the cultivation of self-restraint...

...It was a highly successful effort, and one may wonder why Murray has followed it up so soon with another book so nearly on the same subject...

...Fifty years ago Irving Babbitt declared, "Civilization is something that must be deliberately willed...

...Regardless of obscenity's effects, he would contend, it is simply not the business of government to enforce ethical standards or mold character...

...But 20 The Alternative February 1974 that is not the "most socially significant" problem...

...Disagreement forestailed the resolution to problems while compromise enhanced it...

...Clor sharply criticizes the Justices for their failure to confront the case for regulation of obscenity--a case, he says, which is '~nowhere examined and nowhere refuted" by the Court...

...Skeptics will wonder whether censorship can work in practice as highmindedly and efficaciously as Clor would wish...

...He disliked contention and crisis, and "regarded compromise and conciliation as superior to argument and disagreement...

...they are not...

...A decent society, even a liberal and democratic polity, requires a moral matrix in order to function...

...After a meticulous scrutiny of the current data, Clor concludes that the evidence is mixed...

...And while the churches are valuable, they are not and cannot now be a '~predominant influence upon character in modern society...

...What seems to be taking place in Ervin's committee--at least with regard to Huston --is a remergence of lynch law, but I guess that was to be expected from a politico bitten by moral zeal...

...In The Politics of Normalcy, Murray has purposed to write a shorter, looser, and more reflective treatment of the Harding era, and has extended his considerations beyond Harding's own administration, so as to evaluate the characteristics of Harding's programs and ideas as they finally matured under Coolidge after Harding's untimely demise...

...And if children, why not also adults...

...A third rationale--which Clor finds the most compatible with modern liberal democracy-holds that certain "minimal moral requisites" exist for the 'tproper performance of political and social duties...

...Madison and Jefferson were wary of censorship, Clor notes, "but they did not deny that a power to restrain some forms of expression must reside somewhere in government...

...When barricades are raised and symptoms of decadence multiply, the appeal of all-purpose political panaceas often becomes irresistible...

...Such a period was the late 1960s in America...

...Far from advocating indiscriminate censorship, Clor emphasizes his commitment to liberal democracy and frequently stresses that curbs on obscenity...

...The implications of governmental growth during the war, the new functions assumed and retained, the expansion of federal service and its transformation into a modern bureaucracy --no account of governmental practice in the 1920s can be complete without assessing these developments...

...Clor would emphatically agree...

...It is unrealistic to expect that the home could hold out unaided against a corrupt "moral environment" around it...

...Law is a powerful and essential factor in the crystalizing of moral sentiments...

...Harding was affable, gregarious, friendly, and generous...

...Both sides can cite experts and studies to support some of their contentions, while on many points reliable evidence is not available...

...Civilized societies act (and must act) through the "political community," whose means of expression is law...

...Clor replies that coercion alone will not deter such acts unless the law is also attentive to '~the conditions which breed indecent men...

...Yet no author can do everything...

...And while he denies that censorship of obscenity must lead to ever-widening repression (it did not happen in the late nineteenth century-many a libertarian's golden age), many readers will continue to distrust the State as an instrument of reform...

...And for all the uncertainty of the specialists, surely everyone would agree that children can be influenced substantially by what they read and hear...

...Humble, Harding felt it necessary to rely on and to consult with the '~)est minds" of his party, for in his view, the president was not the embodiment of the mystical will of the people, nor even the foremost leader of his own partv...

...Now, unexpectedly, the pendulum is swinging back...

...Clor devotes an entire chapter to the development of a reasonable of "obscenity...

...The book itself is engaging, quick-paced, fluently if not elegantly written, informative as well as analytic a l - i n short, just the kind of book that one might want to give to his undergraduates to read (which is exactly what Murray and the Norton company undoubtedly have in mind...

...What remains to disturb the reader I by Robert K. Murray Norton $6.95 also in paperback $2.65 appears not in the body of the book, but in the author's foreword...

...Again and again Clor reiterates these fundamental arguments...

...without becoming well or truly known...

...Above all, the revived intellectual rationale for limited censorship has been articulated most thoroughly by a scholar named Harry Clor in a book already recognized as a classic in the field...

...Society is not "an autonomous, self-regulating entity" which will automatically develop and protect a moral code...

...Can a good and livable civilization be built on the principle of deliberate indifference to our fellow human beings...

...To the strictures of moralists and traditional conservatives, the retort was blunt: "Mind your own business...

...It is up to judges to decide whether a "slight restraint" upon speech really constitutes an "abridgement" of the overall "freedom of speech...

...And, he would add, civilization does not inevitably follow the spread of knowledge and freedom...

...He cites Leonard I~vy's contention that the very men who adopted the supposedly "absolute" First Amendment actually left in place federal prosecutions for seditious libel...

...And who in the end would really want to live there...

...The moral and political conditions of freedom must be protected...

...Amid talk of corruption in high places, with great expo~s the daily fare of American citizens, people are searching their vague memories of the past~for comparisons and precedents which provide insights or guides to the confusion of the moment...

...Harding's presidential idol was William McKinley, and he was suspicious of presidential power and reluctant to exercise it...

...Ervin and his committee have repeatedly dragged the "Huston RelSort" through the committee's proceedings without ever giving Huston an opportunity to respond...

...Clor repeatedly asserts what many find it difficult to acknowledge: that we live in a civil society, that a '~public interest" must be actively sought, and that (to borrow from Russell Kirk) "order in the soul" and "order in the commonwealth" are deeply interrelated...

...Their passions forge their fetters...

...This reviewer h a s met individuals for whom the very ideas of a "public interest" or a "social good" suggest Nazism...

...Fresh from long researches in the Harding papers and associated collections, he sought to eradicate a number of the myths grown up around the Harding presidency and to extend materially the body of knowledge concerning Harding's political ideas, economic policies, and his work in politics...

...Clor rejects the libertarian division of life into a tiny public sphere and an expansive, inviolate private sphere...

...His concluding chapter on the fulfillment of the normalcy program under Coolidge aptly completes the clear and attractive opening development of normalcy in the early chapters...

...Because he knew his own limitations, Harding never aspired to be the best president the country had ever had, nor even one of the great...

...It is the long-term, indirect, hard-to-measure moral effects of obscenity that are crucial...

...With it appeared an uncompromising ideology of "do-your-own-thing," of pure and total laissez-faire as the sole principle of political (or antipolitical) phileslesophy...

...In short, no one has decisively proven that "salacious literature" directly affects overt conduct...

...If government really wishes to control evil conduct, then "it cannot be indifferent" to these influences which undermine moral restraints on conduct...

...Nor does it seem to matter to Senator Ervin that his career has benefited from the testimony of an admitted perjuror whose transgressions against civil liberties are a matter of historical record...

...Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within...

...a nation of sensualists" will lack the requisite virtues for effective citizenship...

...it certainly did not prevent the states from limiting "licentious speech...

...Censorship, Clor admits, is not a democratic measure, but it is one which is necessary to the success of a democracy...

...In obvious disagreement with Frank Meyer's fusionism, for example, he argues that it is impossible to ascertain with finality the limits on governmental intervention...

...And yet, in an era of rampant ideological warfare, two of the rarer political virtues are apt to be prudence and humility...

...Why can't public opinion, the family, and the church sustain our standards...

...No large body of men," he warns, "can be continuously bound together on the sole basis of the principle that values are a matter of personal choice...

...Thomas Etzold 22 The Alternative February 1974...

...One can only hope that Murray, whose knowledge of his era is peerless, will fill this lacuna in coming years...

...Nowhere, perhaps, was the new ideology more successful than in the field of obscenity and pernography...

...It is perfectly correct for government to become "concerned with such morality as a precondition for the willingness or capacity of men to contribute to the common tasks and interests of a community...

...By now some apprehensive readers have no doubt consigned Clor to the dark realm of authoritarianism...

...It is impossible to define absolutely distinct "moral enclaves" into which the law can never intrude...

...George Nash I In the era of Watergate, no comparisons in American history come more readily to mind than those taken from the Harding era...

...Despite the political strife of his administration, the scandals erupting as he grew ill, Harding's death occasioned a great outpouring of affection in the American people, and he achieved his ambition in death as he could never have done in life...

...It is "neither reasonable nor safe" for a society to do nothing until vicious acts are committed or are about to be committed...

...In The Politics of Normalcy, Murray has written much that is useful, only a little that is less good...

...Clor has altered the terms of a perennial debate...

...But if I think of myself only, what kind of man am I? Readers of Clor's book might well add: If we the people incessantly think of ourselves only, what kind of society will we have...

...Not, Clor insists, to the principles of inflexible, unmodified libertarianism...

...Obviously the average man can be moved by what he roads, and that includes obscenity...

...He points out that Madison and Jefferson, the most libertarian of the Founders, regarded the First Amendment as a restriction on Congress only...

...He has written an excellent reaffirmation of traditional conservative doctrines and a forceful critique of philosephical permissiveness...

...And surely Clor in one incisive book has done enough...

...Public opinion is not "a self-dependent moral agent...

...Judges," he warns, "cannot reasonably assume, without argument, that obscenity is harmless to individuals and to society just because it is indulged in voluntarily and in private...

...Clor argues forthrightly that '~the widespread circulation of obscenity, particularly when legally protected, can so affect the moral atmosphere of the average man that virtuous dispositions are inhibited and vicious ones encouraged...

...And in the process he has raised questions that transcend the single issue of indecent literature...

...After all, it is said that you cannot legislate morality and that genuine virtue depends on free choice...

...An ethically relativistic philosophy of self-gratification will never be sufficient for this task...

...Meanwhile Murray has opportunely provided a brief summary of Harding's personality, mind, intentions, and presidency...

...An ideology that exalts freedom, noble though it may be, is not enough...

...Clor is particularly skeptical of some libertarian arguments, such as the "tenuous and disputed theory" that obscenity operates as a "safety valve...

...Clor would have strengthened his argument by a more The Alternative February 1974 21 precise analysis of the ways that obscenity actually undermines republican morality...

...As Walter Berns puts it, "the formation of character is the principal duty of government," and one tool of law is censorship...

...Instead, the tone of his book is remarkably sober, judicious, and fair...

...This leaves the law, which can fill several useful roles...

...An intellectual counterrevolution has begun...

...Supported by increasingly permissive Supreme Court rulings, the advocates of unfettered selfexpression and the "new morality" appeared triumphant...

...r what...

...says the indignant libertarian...

...In the present moment, when it is so tempting to draw on the twenties for illustrative analogy to contemporary political phenomena, the book is especially thought-provoking, and serves in a way Murray never intended as a corrective for careless quasi-historical thinking about the deckle of the twenties, and by extension, the seventies...

...Kristol in turn has been strongly influenced by the Straussian political scientist Walter Berns, whose own important essay on the subject appeared in the Public Interest in 1971...

...But C|or is definitely not an ignorant or rabid zealot...

...Murray remarks that loyalty ranked high in Harding's values, and quotes one of Harding's acquaintances: "He liked politicians for the reason that he loved dogs, because they were usually loyal to their friends...

...All too often conservative thought on obscenity is caricatured as prudish and philistine at best, or intolerant and fascistic at worst...

...The Supreme Court has consistently held for a generation that "obscene matter" is not protected by the First Amendment...

...But much that deserved deep thought and analysis in the problems of government in the Harding era are untouched in this volume...

...Massive infusions of obscenity into society might well help to "desensitize" citizens and to subvert the "convictions" and feelings that support "moral standards...

...In making his case, Clor is obliged to refute a host of libertarian objections...

...Far from those battlefields and those times, we may grant that the soldier overstated his point...

...Still, some judgments are possible...

...The meaning of the First Amendment, he argues, is neither ~elf-evident nor self-defining...

...Harding's desire deserves respect and refiection, for it permits assessment not only of how far the nation and the presidency have come in aspiration and in fact, but of how great the loss when gentle hnr~nlty, modesty, and conciliatory spirit are no more found in the nation's high oi~ces...

...nne moral character of a society is a matter of vital public interest...

...How "open" can a society become before it ceases to be a civilized society at all...

...First, he analyzes the argument of Justices Black and Douglas that the Constitution absolutely prohibits censorship...

...Most people learn to do right, and then only by "a long process of moral training and habituation," Censorship in itself, of course, will not make us virtuous, but it can improve the ~noral environment" in which we live...

...And here Clor, while moderate, is unequivocal: "Obscenity can contribute to the debasement of moral standards and ultimately of character...

...Murray's portrait of Harding is striking for the few parallels with Nixon's presidency, rather than for the many...

...The law has a legitimately preventative as well as coercive function( But is not such a system likely to be ineffectual...

...If you wait till then, you have waited too long...

...Only a few years ago the trend seemed inexorable...

...It is likewise unfortunate that Murray's promises of deeply reflective rethinking and new analytical excursions, made in the foreword, seem exaggerated after the book has been read...

...To be sure, the First Amendment states that Congress shall make "no law . . . abridging the freedom of speech...

...To be fully human, men must discipline their passions, and for this task the law is indispensable...

...it is not something that gushes up spontaneously from the unconscious...

...Clor presents three possible rationales for censorship...

...More charmingly, though not perhaps more modestly, he hoped above all to be the best loved American president...

...0nly four years ago, Murray published his voluminous biography of Harding...

...First, there is the Aristotelian argument that civil society exists not merely to preserve men's life, liberty, and property, but to foster the good life and the highest ends of man's being...

...Government invention of and promulgation of an ideology by means of law, for example, would never be permissible...

...These reservations aside, Murray has undeniably extended his thoughts beyond the point he had reached in the more detailed and narrative biography, and in many respects has done a fine job...

...Not everyone will applaud Clor's book...

...Among intellectuals, Irving Kristol, a ~eader of the "neo-conservatives," has written a memorable article, "Pornography, Obscenity, and the Case for Censorship," b y Harry 12...

...As long as what we did was r as long as it was done voluntaVAy and privately, as long as it supposedly did not interfere with others, who could object...

...Edmund Burke Writing home from the trenches of France in World War I, an unknown American soldier advised his son, '~When a man begins to be certain, he begins to be a fool...

...Clor University of Chicago $9.50 also in paperback $2.50 in the New York Times Magazine...

...Here Clor seems to be on solid ground...

...Murray's sustained insistence that he is leading the field in Harding scholarship is less appropriate in his own foreword than it would be in the words of another writer, though perhaps it seems necessary to him when within the space of several years a number of major books on Harding have appeared...

...It is not that his arguments are weak...

...But why, objects the libertarian, must the law concern itself with "mere" words...

...If the decisions of the Warren Court are murky and inadequate, where can we turn for guidance...

...Clor admits that the highest virtue does indeed arise from voluntary acts...

...Push a society to such extremes, and you will make community life "extremely tenuous...

...must always be justified, scrutinized, and democratically controlled...

...He is distressed by recurrent difficulties in the Court's thinking as well as by the increasingly permissive cast of its findings during that period...

...Clor further demonstrates that the Founders were primarily concerned with political and religious speech...

...Because, Clor replies, none of them is sufficient...

...In a happy accident, Robert K. Murray has published his second book on the Harding era...

...But that is largely beside the point...

...If, as everyone would admit, adults can be affected by good literature, why not by evil literature...

...But mere historical eviden~ drawn, perhaps, from contemporary Sweden and Denmark-might have bu~qxessed an already powerful case...

...Would a society of '~pure" freedom and "self-interest" be a blissful utopia of peaceful exchange or a Hobbesian jungle of incipient civil war...

...How, to borrow Burke's phrase, do the passions of intemperate men forge their fetters...

...He suggests, for example, that obsession with sensual gratification can weaken the "higher faculties" essential to "self-control and social responsibility" and lead to a self-centered withdrawal of energy from crucial public concerns...

...Moreover, to the extent that public opinion is solid, this is, in part, precisely because of the reinforcement provided by law...

...dained in the eternal constitution of things, that men of intemperate minds cannot be free...

...Among large sectors of the population arose an antinomian mood of resistance to all tradition and all authority...

...the more there must be without...

...Statutes against obscenity can "contain" some of the evil influences besetting us...

...As for the family, it is simply not "an autonomous social force capable of independently generating and sustaining values...

...It is a happy accident for several reasons: accident, of course, because the work was in progress long before the revelations of Watergate, and fortunate because Murray has established himself as perhaps the foremost scholar on the first American decade after the Great War of 1914--1918, and is consequently a man who can write with real authority on an era that somehow became famous (infamous...

...we simply do not know what they thought or intended about obscenity...

...they can "clarify and define" community standards...

...For self-government to succeed, "civility" is essential, and it will not be attained if the ethic of self-sacrifice is scorned and sensual self-indulgence obsessively cultivated...

...He criticizes libertarians for their superficial exploration of possible "long-range effects of obscenity upon mind and character...

...In this area we must interpret the Constitution for ourselves...

...Since a truly civil society depends on virtue among its citizens, it cannot passively hope that "fortuitous circumstances and chance influences" will somehow produce the desired results...

...The doctrinaire who myopically demands only more freedom does not understand that for liberty to flourish, a "reg/me conducive to liberty" must be maintained...

...For the "capacity for voluntary self-discipline and right choice" does not develop spontaneously in a vacuum...

...Here we come to what Clor recognizes as the key issue: '%Vhat is the public interest in moral norms and moral character, and how is that interest best served...

...Why, for example, is government necessary for the maintenance of minimal morality...

...This point, said Justice Burger recently, is "categorically settled...

...Clor next proceeds to explode a number of misconceptions about the Founding Fathers' views on free speech...

...Suddenly the Supreme Court has reversed itself...

...Absolute individual freedom, then, cannot be the exclusive goal of the political order...

...It is or...

...The remainder of his book may best be described as a long and formidable demolition of one objection after another to the moderate but necessary restraints on expression which Clor advocates...

...As a student of Joseph Cropsey and Herbert Storing of the University of Chicago, he evidently belongs to the school of the late Leo Strauss...

...Although his ambition belongs to a time gone by, to an age more innocent, simpler than our own, in the swirling disputes and contentions of the seventies, Harding's naive aim should evoke more than the cynicism, much more than the derision and contempt with which, as Murray notes, Harding and his era have for the most part been treated by historians...

...Clor begins with an analysis of Supreme Court decisions from the Roth case (1957) to Ginzburg (1966...

...As the Founding Fathers knew, to sustain a republic you must have a republican morality...

...it is frequently '%rustable, uncertain, and transitory...

...they can symbolize"a moral decision of the community...

...What I do with my life is my own affair--not yours, and certainly not the government's...

...Ideas and arguments about sex---as distinguished from obscenity (which is hardly an exchange of "ideas")--should not be curtailed...

...Legitimate censorship" aims not at all literature which might have an evil impact but fundamentally at '~the most vicious materials...

...Second, there is the contention, advanced by Ernest van den I-IAAg, that society---any society--requires cohesion and consensus to survive...

...These are very plausible propositions...

...Why not confine itself to the punishment of antisocial acts when they occur...

...in Miller v. California (1973) Chief Justice Burger and the majority have rejected the notion that "anything goes" and instead sanctioned the suppression of some forms of obscenity...

...Nor does Clor accept the common libertarian assumption that an "autonomous civilizing or socializing process" will produce a viable morality or polity...

...As the social fabric unraveled, such conservative ideals as moral consensus, individual self-control, and duty to others were frequently stigmatized as repressive, even totalitarian...

...As a wise saying in the Talmud observes: if I do net think of myself, no one else will...