The First Amendment; Alan Dershowitz
WGBH Boston in cooperation with the Institute for Democratic communications at the School of Communications with Boston University now presents the First Amendment and a free people and examination of civil liberties in the media. In the 1970s. And now here is the director of the Institute for democratic communication Dr. Bernard Ruben. Our subject today is to go around the problem of what constitutes obscenity in print and the rest of the media movies and so on and whether anybody can find some definition or some working arrangement so that we could look at cases like the recent case of Mr. Harry Reid Ames who was convicted for being an actor in a what was deemed a pornographic movie. Well in the case of Larry Flynt who was given. Convicted and given seven to 25 years and an $11000
fine. As the publisher of Hustler magazine and similar cases this obscenity problem is one of the deep running ones that concerns us at all times. I have as my guests today Professor Alan Dershowitz Harvard Law School professor and active participant in civil rights cases. He's been her dreams lawyer. He writes extensively about civil liberties. Been involved in such cases as the Pentagon Papers situation and the ticket follies movie. Recently he commented on Mr. As Mr. Eames lawyer and said any person who participates in any way in the creation production editing or distribution of a sexually explicit film newspaper book Painting or magazine can be hauled into a federal court anywhere in the United States and charged with participating in a national conspiracy. My other guest is Carol rivers the well-known journalist and professor at Boston University. I'm going to ask this question of
you Alan Dershowitz right at the start. Is there anything in your MO in print or through the movies or whatnot that is to be accepted as obscene or pornographic under the First Amendment. Yes depending on where it's displayed and how it's displayed. I'm an absolute ist when it comes to the inside of a book. Well the inside of a movie theater. I think it's none of the state's business to peek in and check what's playing in movie theaters or to start thumbing through the insides of a magazine or a book. But I feel very strongly equally strongly that the state has a reasonable interest in making sure that the covers of magazines are not displayed so as to offend unwilling readers. I'm very strongly of the view that the society has the right to make sure that the marquee theaters are not such as to offend people who pass by and cannot control where their eyes hit.
I have come up with what I call the theory of externality. I think the society has a legitimate right to protect the prude as well as The Pervert. That is if somebody doesn't want to see obscenities he has just as much of a right not to see it as the person who wants to see Obscenity has the right to see it and therefore what we have to do is come up with zones of privacy and the zone of privacy for the reader is the inside of the book with the theater and the zone of privacy for the rest of the citizenry is the outside of the theater and the outside of the book. So I think you can come up with definitions so long as those definitions are limited to the Xterra now it was before. Ask Carol to question you. I'd like to ask one more and that is your resume. Do they differ from the Supreme Court's standard. One of the standard said in Miller versus California of 1973 which talked about the prevailing community standard would evident.
Well there is a big difference because the Supreme Court would have the community peek inside the movie theater. Let's assume we have a small town which has a thousand citizens 900 of whom are offended by what goes on inside that movie theater 100 of whom like to go to that movie theater. My approach is that the 100 have sole control over what plays in that movie theater. But the 900 can determine what's exhibited on the marquee and local community standards should apply there if the 900 people find new pictures offensive the known pictures should be permitted to play on the outside of the theater. But local community standards have no role to play on what goes on inside the theater. Put it another way. The movie itself is an even more local community then the town and so long as nobody forces any of the 900 residents to go into that theater. Then there is no clash. The rights of privacy the rights of free expression of everybody are adequately fulfilled.
Caryl Rivers Yeah I had. Anything that I had two reactions to the hustler case the conviction of the publisher of that particular magazine my intellectual reaction which was I took a look at the charges of particular organized crime charge and thought they were very flimsy and dangerous in that they could be obviously used against any other kind of publisher at the whim of say some local district attorney. My own my other reaction was sort of sock it to him as my emotional reaction. And I think I know where that came from. I was very much concerned at the flood tide of a sort of new kind of pornography and that is the pornography that makes female sexuality seem dirty and obscene and grotesque and that pain is to violence against women. And I think there is a clear and present danger in our society this kind of hostility in violence to women has been there for a long time. It seems to be growing and I certainly don't blame you know the producers of a certain kind of pornography for producing lamb but I think they
certainly Foster and help to maintain that which is there. And this worries me and concerns me greatly. Well the question of poster looking at a recent issue for this program. And comparing it with such as Playboy and Penthouse we find that there is all sorts of grotesqueness about how headless torsos and that sort of thing. Well yeah but it is blatant. So one wonders whether there is two things going on. One in the same time. The question is Larry Flynt a very successful American Capitalist. And second if we are interested in Larry Flynt are we interested in hos there or are we interested in the conspiracy theory under which he was convicted which has less to do with us than general civil liberties. How do you feel. Well I'm mostly interested in what this river's is just stated because I think that reasonable sounding.
Plea for censorship is far more dangerous in our society than the Know-Nothing plea for censorship after what we've just heard is a very reasonable argument why women are offended and I understand that by Hustler magazine Jews are offended by mine calm of blacks are offended by George Wallace. Every group in our society has another group that it would like to censor. I understand that argument. I would prefer to live in a society where Larry Flynt chose not to demean women. I feel very strongly about Larry Flynt's demeaning of women and about pornography as demeaning of women just to strongly as I feel about anti-Semitic literature and anti black literature. But were we to try to cleanse our society of all objectionable literature we would really be moving toward a regime of real censorship. And that's why I find that approach much more dangerous than the Know-Nothing approach which says Well breasts Yes but other organs of the body no. Because what Miss Rivers is conceding. Is that Larry
Flynt is really making a political point. Surely she would concede that he was entitled to get up on the witness stand to get up on the podium and make a speech saying ladies and gentleman I think women should be demeaned sexually they are not entitled to be regarded as equal. They should definitely be subjected to sexual subjugation. Surely she would concede that that kind of a political address is as legitimate as George Wallaces saying similar things about blacks or the American Nazi Party saying it about Jews the fact that he does it in a representative form by the use of grotesque pictures makes it a no more difficult. And we're really arguing now over plain ordinary political reasons which are good when just to pick up on Carol's point. There was a recent ad in The New York Times the date is February 20th 1977 signed by a lot of eminent people who I think are. Signing their names on a lot they don't understand. It's called Larry Flynt American descender and his sense of control compares
him rather to the dissident writers not just in the Soviet Union. I wonder whether the discussion of the conviction of Larry Flynt as the publisher of Hustler is as important as the conspiracy. The case was handled. I think there are grounds for Caryl Rivers worries as her political statement regardless of whether I agree with you about Larry Flynt's political I think he is a hustler. I don't think he's got a political statement in a bushel basket but nevertheless I am concerned I don't think he's a dissident. I agree with that I want to sign that address I don't think there is any comparison between what Flynt is doing with it which is the commercial exploitation of raunch and what the heroic dissidents in the Soviet Union to doing which is struggling with their lives on the line for their identity for their religious freedoms nonetheless to begin to censor Larry Flynt on the ground that Mr. Rivers is suggesting that is namely that he is saying things and doing things that are offensive to women is an
argument with no limiting principle I think time for Carroll to come right think you know because I wonder if this argument doesn't mean that. You cannot do anything because there is a danger that they would go all the way in other words there is no clear and present danger. Society has no interest and no power of regulation. Even if say we're dealing with child pornography which is another issue that's coming up now has for example society no right to say to the pornographer that they cannot use children a particularly vulnerable minority in pornography. That's a complete red herring of course. We have the right to tell pornographers that they can't use children. It is against the law it is a serious felony for children to engage in sexual relationships particularly for pay. The action itself the using of children is punishable I don't know a single civil libertarian in this country who would defend the right of a point ah grapher to exploit children or to exploit anyone else directly in the actions there is an enormous difference however. Except we're taking women to explain oh no I would in
every civil libertarian I know would defend the right of a society to prevent the exploitation of women directly in the making of a pornographic film for example if someone were dragged in an involuntary subject that what we're talking about is something very different. Do not drag the kids who might be using a pornographic movie we're clearly not bound in and drugged and they might voluntarily if you don't understand the difference between a woman of age volunteer ing to engage in sexual conduct and a child volunteering. Then I think you don't understand women's liberation. No I guess women are people. No they are just like men. They are entitled to consent. Children are not entitled to. I guess what I'm trying to ask you is obviously then there are some limits you would set. There are there is a point at which you can say yes this should not be done. Neither would you not absolute to the point where there's hands off on everything I am aware this time. No no I am absolute in what can be shown. And of course are not absolute on what can be done. I would never justify the making of a snuff film if that required the killing of a
human being on the other hand I would justify the showing of a movie of somebody being killed if somebody had snuck into the reformatory and photographed Gilmore being executed. I would defend his right to show that film just as if we were if there were a society somewhere else in the world where it was perfectly OK for children to engage in sex and somebody would photograph those children engaging in sex. I would defend his right to show that film to consenting adults who want to watch it as long as nobody was forced to watch it. Though I would not defend the right of anybody in the United States to make that kind of and I'd like to return to the community. Many of us when we did let me just quote. Film critic Molly Haskell. I think this is relevant here and she's written this was about the movie you just talked about which purported to show a woman being murdered after sexual intercourse. And she said when do we hold our ground and say enough. Perhaps it is up to women for men. Our friends are of the same sex as our abusers and attackers and rarely seem to understand the special ever present nature of our vulnerability and the degree to
which any assault on women in films and plays is a reminder of that vulnerability and a warning. Well I see two categories of concern here. I see Carol that you have a very real social concern and that predominates in your view. You see the ultimate objective of society and social meaningful terms. And Alan Dershowitz I see you as being primarily concerned from the legal side that if there is a curb there's no there is no limit to that curve. And you also are sending. I think a new rule of privacy of course the first major article was Louis Brandeis and so on. But in 1890 but you're talking about something new I think you're saying that the community can be the movie theater audience. I think as I hear it this is novel. Are you suggesting something might be a new test the Dershowitz test that the community is not the geographic nor the political community
but the community of audiences participating people the privacy of associations. Yes I am I suggested that test several years ago when I defended the film. I Am Curious Yellow and the court in Massachusetts the federal district court accepted that argument it was the first court. In the United States to accept the argument that what goes on inside a movie theater is not the business of the society so long as nobody is forced to see it. I think that's a test that should be adopted by the Supreme Court. There are certain some states that are moving toward that test. I think the society has a very real interest in protecting those who are offended by this material. But the debate between Ms rivers and myself is a much more profound one. You mentioned correctly she sees things in social terms every censoring society in the world sees this problem in social terms. And the corollary by the way in every society that I know of which censors the corollary of the statement you may not read certain books is the exact opposite. You must read other books.
One of the interesting things about this discussion is that all of the people I know I know you by reputation and I know Cairo for many years there are no more outstanding civil libertarians that I could have around the table. And it seems to me that is the nature of the argument. What does the Supreme Court going to do I have a hunch that the community standards test of Miller versus California has led the country often direction and dissipated. I think that's right I think what the Supreme Court tried to do in Miller was to state and correctly that New York should not necessarily impose its values on Wichita Kansas. But what's happened is the Supreme Court didn't understand the independence of the communications industry of the press of magazines of movies and what resulted is that now Wichita Kansas can control the reading and viewing habits not only of New York City and Boston but of London and Paris as well because any magazine that's produced in this country or any movie that's produced in this country will find
its way into Wichita Kansas and so we have a lowest common denominator or we're the most parochial town in the country determines national standards. You can't have local community standards in this country. We are one nation for what is what happens what happens then if you if you say that my natural extension of the media it is to be expected that the mass media you know come into the privacy of one's home and which we are the community namely television and radio there have been some cases on radio and television already that we can expect the extension of. Say first the Playboy approach penthouse approach. Perhaps the hustler approach beginning with cable television and working in reverse. Would you remain an absolutist on this issue under the conditions of general transmission through the airwaves into the private home through the airwaves No. We are a limited number of airwaves available and it seems to me the community has the right to make some degree of determination and children of course may sit in front of TVs and flip the channels. I would be an
absolutist on cable however it seems to me that if somebody wants to introduce into the homes of those people who choose to a pornographic cable station anybody has the choice to accept it or reject it. I would surely you'll have to see the child I was going to say I would surely allow at least those families which are all adult families to choose to do that. Now what if there are children in the home. Justice Frankfurter in a famous opinion winters vs. New York in which New York tried to ban adult books from on the ground the children get access to them said look. The reading habits of the adults in this country cannot be determined by our children. The same philosophy by the way would prohibit the dissemination of aspirins and other medicines which are dangerous to children but which adults need to balance that our society strikes is to require tremendous degree of caution to be exercised to prevent this from getting into the hands of children but not absolute ban on what adults can do. You know what I think bothers me most about a lot of the pornography debate and I think the Larry Flynt case is a good example. Is that
the argument I am making and I'm not necessarily arguing for censorship because I don't know the answer I'm looking for. I guess what I'm asking is that my argu be taken really seriously not that everybody run out start censoring but I'm very very disturbed that an ad would be taken out in the Times as we mentioned in which Larry Flynt is made to seem a great crusader for Intellectual Freedom sort of a John Peters anger and it becomes sort of intellectual chic to defend pornography and often people make the argument I make are sort of dismissed as little old ladies in tennis shoes and this is not a serious argument and I wonder if there have been a spate of movies not an isolated movie but a spate of movies in which sponsored by the White Citizens Council the KKK in which black people were systematically lynched dismembered and mutilated would there be the same. Would there be you know 35 distinguished literary figures sort of hiding in AD The New York
Times defending this material or would they quickly be ways found for that material to somehow. Discipline I think I think you've got a good point of issue here. What do you think. Well I think you do have a very good point and I think there are things that should be done to make it clear that Larry Flynt is not to be glorified. What I think he I think he is doing a disgusting thing and I wish I could limit my defense of civil liberties to those people with whose views I agree I have to tell you that were the black anti-black movie at issue. I would defend the right of that movie to show in theaters I would not defend the material I was asked several years ago to defend the American Nazi Party and I made the line very clear in my discussions with them. You're right to do it is defended but not the material at issue. And I agree that people should be cautious about how the ED reads to make it clear I think most of the people who signed this pledge that would agree with you that what Flynt is doing is absolutely disgusting and nobody should
defend what he's doing on the merits Indeed I think it's very appropriate by the way for women's groups black groups Jewish groups you name them to boycott this kind of periodical to try to persuade others not to buy it. To try to persuade others to use economic sanctions against the publisher of these magazines I draw a very sharp distinction however between that and the power of the government to say absolutely this idea shall not be circulated in the marketplace now the marketplace of ideas by its very concept employs the use of economic sanctions and the use of boycotts of the marketplace. After all if you don't like what's being sold in the market don't buy it and tell your friends not to buy it. That's the attitude I would take to a lesser Justice Frankfurter in the middle 50s one of these cases came out with a famous lawyer. It's not necessary to burn the house to roast the pig. Now that's one you might call it a test. On these issues ever
since Regina the Regina case versus Hickman of the 1860s of Great Britain we've had a tendency to deprave proximity and degree a clear and present danger. Community standard. Is this a ghost hunt. Are we on a search for a test a magic test. As if there was one. Or is it up to each generation to to fight it out and to set the standard for itself. Well I think that it is a search for a ghost to try to figure out how one group in a society should determine whether another group in society should read I think we would all spend our time much more intelligently and I think we're moving in this direction. Toward defining what one group can thrust upon another unwilling group there I think we can come up with standards. I think we can also spend their time advantageously adopting this river's approach and that is thinking about what kind of material we should encourage in our society. But we should not waste our time thinking about
how to define what is inside a book or inside a theater which is subject to governmental Banning. Well one thing that intrigued me was that the president's commission on pornography did a very exhaustive study and they found that they could they could find or they said that in effect at that point there wasn't a link between you know antisocial acts criminal acts in pornographic literature. And I think they're right in the individual case I doubt that you find many people reading hustler Singhvi going out and murdering someone. But what if what does seem to to be happening and I'm very sensitive to this because I've just been doing some studies on rape and I notice a number of my female students have been raped. I've just been doing some stories on sexual abuse of women in the marketplace and I find this climate of hostility is is pervasive it's terribly pervasive and it's been invisible because these are crimes that tend not to be reported and tend not to be taken seriously. And so that I I am
looking for ways. I don't like legal censorship but I certainly am looking for ways to get this particular kind of pornography that breeds in this climate of hostility. And has I think great impact on our social climate. I'm looking for ways maybe to harass it harness it get rid of it and at the same time not trample over the first of all wouldn't it be helpful to combine your thoughts Dershowitz and Caryl Rivers. If despite your disagreements by the way there's a difference between your values not a disagreement over values which is another one of the Supreme Court tests. If groups got together and pointed out in a full page ad what the issues were in this case or on programs like this that the issue was the conspiracy theory that goes back to William Penn being arrested on Christ Church Street for meeting with other Quakers that was used against labor unions and so on and so forth rather than have the public the public are not lawyers the public in a civil
libertarian absolutist. The public are worried or is worried are whichever is grammatically correct. Is this something tangible like that practical people should do when worried about these things. Yes I think it would be very useful for a group of people to put an ad in the paper saying that we oppose the government's right to prevent Flint from publishing but we equally deplore flints judgment in publishing this kind of material by the way it wouldn't be limited to pornography. Abuse of women is rampant and other forms of literature are as well the general macho literature that are prevalent in our society today which is not necessarily pornographic indeed non pornographic material probably has a greater impact on perceptions of women and perceptions of blacks and perceptions of other minorities minorities than pornography literature it's easy to pick on pornography because so many people are opposed to it on moralistic grounds but if we can separate the moralism and get the some of the really hard issues I think a coalition
could be formed to make both of these points simultaneously. I think so because I said What has bothered me so much is that this has not been taken seriously that we have concentrated on plumbing. You know in the issue of pornography what you can show can you show below the waist or above the waist. And we haven't counted on the attitude toward human beings displayed in this material and people have not commented on that. This is because in the past you know the. Because of mass media communication and printing millions and millions of issues every every week that sort of thing there's a generally pervasive nature so that people feel they cannot escape even if they are not participants or interested. There is that is also kind of the Gresham's Law of pornography every point I go for who goes up to a certain point you get somebody else is going to go a step further and every prosecutor who goes up to a certain point and prosecutes are going to get an ambitious prosecutor who also is willing to go a step further so are getting is a war of extremes in this area that is very divisive and very dangerous to First Amendment
values and ultimately its the persistence of the First Amendment over the facts of the case the rights and liberties of the people that must be protected. And again I think its brought out sometimes we discussed Larry Flynt even though we may find him personally obnoxious or his product notorious and venomous because of the First Amendment. I want to thank you very much Owen Dershowitz and Carole rivers for what I consider to be one of the few engrossing discussions on this subject that certainly I participated or heard about you know long time we didn't resolve any of the issues and that's as it should be because the First Amendment doesn't say that three people can get together and settle something so once again my thanks. This is Bernard Ruben saying good night. For WGBH radio in cooperation with the Institute for Democratic
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