Hard-Nosed About Hard-Core

When the Justices of the Supreme Court sat down to consider their current harvest of pornography cases, they found themselves in rare and unanimous agreement on one point: the procedures then in effect for handling the problem were a hopeless failure. Thus they concluded that the entire legal definition of obscenity had to be reexamined. Justice William Brennan, chief architect of the court's gradual course toward liberalization, argued urgently that virtually all pornography bans should be scrapped as constitutionally unworkable. With no less force, Chief Justice Warren Burger spoke in favor of stricter standards, "more concrete than those in the past." Last week, in a decision that could drastically clamp down on the so-called sexual explosion in U.S. art and entertainment and, perhaps more important, turn loose the forces of puritanical repression, the court backed Burger's call for curtailment.

The other three Nixon nominees and Byron White joined the Chief Justice in a new test for pornography. It is now constitutional, said Burger, for states to ban any "works which, taken as a whole, appeal to the prurient interest in sex,'which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value."

The last part contains the significant shift. Previously a work had to be "utterly without redeeming social value." Now to be considered obscene it must fail to rate as a "serious" entrant in the marketplace of ideas.

Burger was not troubled by the argument that because no one has proved pornography harmful, states have no right to prohibit it. "Although there is no conclusive proof of a connection between antisocial behavior and obscene material," said Burger, a legislature "could quite reasonably determine that such a connection does or might exist." Obscenity, Burger added, has never been protected by the First Amendment. Thus there is no constitutional problem--which leaves states free to protect "the quality of life and the total community environment, the tone of commerce in the great city centers and, possibly, the public safety itself."

The Chief Justice did concede that many current state statutes are so vaguely drawn that they do not give clear notice of what is banned. The court, therefore, was careful to toughen the standards for anti-obscenity laws in an effort to prevent imprecise or overly extensive statutory language. Only "works which depict or describe sexual conduct" can be outlawed, said the court, and that conduct "must be specifically defined by state law."

Though legal experts maintained that careful study and even new test cases are needed before the effects of the decision will become fully clear, the impact seemed all too obvious to some sellers of hard-core pornography--against whom the decision was specifically aimed. In New York, Washington, Los Angeles and other cities, "porn shop" operators almost immediately yanked some of their more blatantly sexual material off shelves and display cases. In addition, New York police learned that operators of live sex shows planned to require performers to wear G strings, and that many "adult" movie-house owners were about to make a quick switch to more soft-core fare.

"The hard-core industry is going to dry up," said Dave Friedman, president of the Adult Film Association of America, an organization of X-rated movie producers. "The court ruling is a lot more far-reaching than any of us expected."

New Tactic. Indeed, it may reach further than even some pornography reformers expected. In Utah, which has one of the nation's toughest anti-obscenity laws, officials felt sufficiently bolstered by the new ruling to announce that any attempt to show Last Tango in Paris, which had been scheduled to open in Salt Lake City, would result in arrests and the confiscation of the film. "It will never be shown here without undergoing lots of prosecution," promised Deputy Attorney General Robert Hansen. Last Tango's explicit sex scenes have, in fact, stirred enormous controversy for months, but some legal authorities doubted that even the court's strictest members meant to brand such pictures as hard-core pornography. Last Tango has, after all, attracted as much serious acclaim as it has protest. What the new definition does is to shift an important tactical burden from the prosecution to the defense. Where in the past the state was often forced to produce expert testimony to prove a work valueless, now the defendant will most likely have to produce his own experts to testify to its value. Moreover, Burger specifically ruled that even without any expert testimony, judges and juries may conclude that a work is pornographic.

Substantially increasing the importance of the new definition of pornography was another ruling that will allow local courts to decide whether or not a work is obscene in the light of local community standards rather than national attitudes, as in the past. "It is neither realistic nor constitutionally sound," said Burger, to require "that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City."

That reasoning has the considerable popular appeal of allowing towns and cities to decide for themselves how much of the sexual revolution they want to find in movies and books within their boundaries. It may even mean that different neighborhoods could have different standards, though the court did not get that specific. In any case, Georgia Bar Association Official Larry Salmon predicted that legislatures and city councils will lose little time in accepting the court's suggestion that they pass laws spelling out "what will and what will not be tolerated in the nature of explicit sexual material."

Disparate Rulings. That local-standard rule could conceivably turn into a nightmare for publishers, film makers and other distributors of mass-circulation material. Robert Bernstein, head of Random House, sees the decision as "a call to arms to every crazy vigilante group in this country." Michigan Attorney General Frank Kelley warns, "This really sets us back in the dark ages. Now prosecuting attorneys in every county and state will be grandstanding, and every jury in every little community will have a crack at each new book, play and movie."

Many works will clearly be acceptable in some parts of the nation but not in others. Disparate rulings would force distributors into an uncomfortable choice--either bowing to the strictest law, forfeiting part of their business, or circulating various versions of a work. "Community enforcement may result in hundreds of different film prints distributed around the country," predicts Producer Russ Meyer, a creator of softcore nudie flicks. Producer-Director Stanley Kramer predicts that the decision could bring chaos to many movie companies; Irwin Karp, an attorney for the Authors League of America, said that publishers will be put under "real restraints."

Actually, there is still some doubt about the ultimate potency of local standards. Burger specifically stated that communities have the power to decide whether or not works are "patently offensive" and predominantly "prurient." His opinion even left open the possibility that "seriousness"--the third and newest test for obscenity--was a matter of local interpretation. But what would happen if Masters and Johnson's Human Sexual Response, despite its obvious, even relentless seriousness, were ruled obscene by a local jury? Could that determination be thrown out by an appeals court? Surely the reply has to be yes, but the definitive answer must await further decisions.

In other new rulings that, as anticipated, strengthen Government regulatory powers (TIME, June 25), the court decided that officials can prevent the importation or transportation of pornography across state lines on public carriers even for strictly personal use. It was also held that obscenity is illegal even when it is offered in adults-only shows. Said Burger: "Conduct that the state police power can prohibit on a public street does not become automatically protected by the Constitution merely because the conduct is moved to a bar or 'live' theater stage, any more than a 'live' performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue." California Attorney David Brown, whose firm has defended numerous obscenity cases, noted that Burger had thus "flatly rejected" the contention that the Government has no interest in telling adults what they can see or read--his "principal argument" in the past when defending clients charged with pornography violations. The only liberal rule left untouched by the court is that individuals may have anything, however filthy, in their own homes for private use.

The court's dissenting minority freely conceded that the prior attempts to establish limits to pornography had failed miserably. "After 15 years of experimentation and debate," said William Brennan, "I am reluctantly forced to the conclusion that none of the available formulas" are acceptable. He favored dropping all prohibitions except those to protect juveniles and adults who wish to avoid smut. As a result he opposed the Chief Justice's new effort at definition. "Even a legitimate, sharply focused state concern for the morality of the community," he said, "cannot . . . justify an assault on the protections of the First Amendment," which guarantees freedom of speech and the press. Justice William Douglas agreed. The new definition, he said, "would make it possible to ban any paper or any journal or magazine in some benighted place."

Burger brushed aside dissenting attempts to "sound the alarm of repression." Actually, he said, "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans . . . the First Amendment and its high purposes in the historic struggle for freedom." Courts can distinguish between ideas and exploitation. "One can concede that the 'sexual revolution' of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation." But that should not prevent "regulation of patently offensive 'hardcore' materials."

For a man so careful to tell the states to be precise in drawing up their laws on sexual conduct, Burger was remarkably imprecise in his own definition. Sexual conduct can, in his view, include "patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals" as well as "ultimate sexual acts, normal or perverted." But "patently offensive" by whose standards?

What about the sort of unabashed nudity and uninhibited sexual discussion that is the staple of such successful magazines as Playboy and Penthouse? It may well have to be toned down. In any case, most states will probably have to redraft their laws, since existing statutes now tend to be so prudish that they do not actually define what they are forbidding.

It is, in fact, unlikely that the court itself can rest on its current decision for long. The Burger opinion has created new ambiguities in the law that can only be resolved by fresh appeals, many of which will probably grow out of prosecutions encouraged by last week's tough rulings. In allowing states greater freedom to protect their "quality of life" by cracking down on pornography, the court, in effect, billed its decision as the latest antipollution law. It may soon find, as have surprised environmentalists, that strict regulations of pollution in one form can quickly increase its danger in other forms.

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