Pornography bill dangerousAmong the questions on the Cambridge ballot Tuesday is an amendment to the city's Human Rights Ordinance that would define pornography as sex discrimination and permit victims to recover actual and punitive civil damages from producers, distributors and consumers.
[For the full text of the amendment, see The Tech, Oct. 11, page 7.]
The measure, while well-intentioned, is overreaching and poorly drafted to the point of violating the First Amendment's guarantee of free speech. It should be defeated.
The referendum defines "pornography" essentially to be "the graphic sexually explicit subordination of [people] through pictures and/or words." This definition must be taken at face value. Pornography is, of course, in the eye of the beholder. The bill's drafters have employed their arbitrary, subjective view.
That view is neither good nor bad by itself; what the drafters do with it is another matter. The referendum lists four areas that constitute sex discrimination through pornography:
O+ Coercion into pornographic acts: This section is reasonable. The law should and does protect people from being coerced into activities, pornographic or otherwise, in which they do not wish to engage.
O+ Forcing pornography on a person: Again, this section is reasonable. Anyone coerced into experiencing pornographic representations should have recourse in law.
O+ Assault or physical attack due to specific pornography: It would be difficult to prove a direct causal link between viewing pornography and committing violence. Should such a link be established in a specific case, however, recovery against the seller of pornography might be constitutional.
Courts have allowed claims against liquor sellers by those injured by intoxicated patrons. A Maryland court recently found the seller of a handgun liable to the plaintiff who was shot with it during a robbery.
The Constitution does not protect producers and distributors of liquor or guns; it does, however, protect producers and distributors of words and pictures (or "speech"). The exception is speech that incites violent or dangerous action. Shouting "Fire!" in a theater, urging a crowd to riot, or explicitly insulting someone is not protected.
Each of these examples is of verbal speech with instantaneous effects and intention on the part of the speaker to create those effects. Court decisions punishing other forms of speech with less immediate results -- such as Eugene V. Debs's conviction for urging draft evasion during World War I -- are generally held in low esteem today.
For producers and distributors of "pornography" to be liable, an average person would have to consider the specific pornographic material to be an intentional or reckless incitement to violent action. Very little of the material listed in the definition's nine subsections could even possibly be so considered.
O+ Trafficking in pornography: "To produce, sell, exhibit, or distribute pornography, including through private clubs" would subject an individual to civil penalties. This clause renders the bill unacceptable. The condition of specific injury that might render the assault clause constitutional is missing here.
Constitutionally, only "obscenity" is censorable. The definition of "pornography" avoids any mention of what is or is not obscene. The amendment makes no exception for works of "serious literary, artistic, political or scientific value," protected under the Supreme Court's test for obscenity.
The amendment's problems, however, would not be solved by the insertion of a sentence to the effect that pornography is, by definition, obscenity.
The First Amendment has a two-fold purpose regarding speech: to prevent government from censoring individuals, and to prevent individuals from censoring themselves. When laws exist that punish expression, people will be discouraged from expressing themselves for fear that their work might violate the laws.
Even a law prohibiting obscenity has this negative "chilling" effect on creators of expression. The cost to permitting obscene speech is much smaller than the cost of self-censorship of protected speech.
Pornography represents an expression, abhorrent to some, that others want to make or consume. As long as no one is compelled to associate with those people or their ideas, the government should not punish or censor.
If one would censor pornography, then one must also acquiesce to censoring any work abhorrent to the majority. That acquiescence is too dangerous to permit. The bill must be defeated.