A Greater Harm

The U.S. Supreme Court has wisely put an end to the attempt by some feminists to outlaw pornography by having it declared sex discrimination. The city of Indianapolis adopted such a law in 1984, and Los Angeles County thought about it last year. But six of the court’s justices voted Monday without comment to uphold the ruling of the 7th Circuit Court of Appeals that the Indianapolis ordinance violated the First Amendment to the U.S. Constitution. That should put an end to it.

This ordinance was a bad idea from the outset, and it was clear that it would not survive a constitutional challenge. Yes, obscenity is offensive to many people, but offensiveness alone is not enough to justify limiting free speech.

The pornography statute would have empowered individual women to go to court to block the distribution of material that they considered degrading to all women. It meant that every bookseller would suddenly be faced with 120 million potential plaintiffs, and their response would almost certainly have been to stop selling anything that any woman might consider degrading. This standard could have taken in everything from Shakespeare to the feminist books written by the authors of the ordinance.

Even if its application was narrowed by the courts, the law would have greatly expanded the category of material that could be barred. The Supreme Court has a fairly narrow definition of obscenity. The definition of material that could be enjoined under this statute was much broader. Proponents of the measure argued that this was necessary because pornographic material is demonstrably harmful to women, and speech that causes harm can in some circumstances be curtailed.

Virtually the same ordinance was proposed for Los Angeles last year by the County Commission for Women, but the Board of Supervisors shelved the idea after County Counsel DeWitt Clinton advised them that it would probably be found unconstitutional. Instead, the supervisors created a Task Force on Pornography, which is now trying to come up with another plan for limiting the availability of pornographic material. So far it hasn’t come up with any.

The trouble with these statutes is that they conflict with the right of all individuals to read and think about whatever they please. There is grave danger in allowing society to restrict the freedoms of thought and expression, which are the freedoms on which our experiment in self-government is based.

The majority may not impose standards of truth on what may or may not be spoken, which is precisely what the Indianapolis ordinance tried to do. If the depiction of women met with women’s approval, it could go forward. If not, it could be blocked. Think of how that might be expanded to prevent you from reading what you want to read. Pornography may cause harm, but impinging on the freedom of speech is a greater harm.