[This op-ed piece appeared in the The Wichita Eagle & Beacon on May 21, 1977.] 


Obscenity: Not Simplistic  [title given by the newspaper; what was intended was probably “Obscenity: Let’s Not Be Simplistic”] 


By Dwight D. Murphey


EDITOR’S NOTE: Dwight D. Murphey is an associate professor at Wichita State University and a lawyer.  A frequently published author on political philosophy, he considers himself a “classical liberal;” i.e., a liberal in the 19th century sense as favoring individual freedom and limited government. 


            Immediately after Vern Miller took office as district attorney for Sedgwick County in January, he began vigorous enforcement of the Kansas statute against obscenity.

            I, for one, applaud this enforcement.

            It seems to me that we need the kind of “great debate” that the enforcement has caused in Wichita.  Social, legal and moral issues of the greatest importance are raised by the ubiquitous availability of sexually explicit materials.  Such issues shouldn’t go by default—which they are so long as no one had the will or the courage to challenge the existence of pornography. 

            I am writing this article because I feel that some important aspects of the question have not been considered.  To my mind, each side of the controversy has some merit, but each side also over-simplifies what is in fact an immensely complicated skein of issues.

            The rule under which our legal system has been operating was first expressed by the Warren Court in the Roth decision in 1957.  It has since been modified by the Burger Court.  The rule looks to:

            1.  “Contemporary community standards” as those standards exist in the “average person.”  The Warren Court majority defined this as a national standard, but the Burger Court shifted it to the local community.

            2.  “Dominant appeal to prurient interest.”  The material must also be “patently offensive on its face.”  The entire work, not just parts, must be judged.

            3.  The material must have no “redeeming social value.”  The Warren Court held that, to be obscene, it must be “utterly without” such value.  The Burger Court, however, allows considerably more prohibition by looking for a “serious” redeeming value. 

            It seems to me the Supreme Court has gone down the wrong track with both versions. 

            Each entails a cultural relativism that is inappropriate in defining the Constitutional rights of the individual.  Since in my opinion one of the functions of a written constitution is to chain down the powers of the state, I would not have individual rights depend on the vagaries of the public’s mood, either in a national or a local community.

            Both versions involve such radical ambiguities that the meaning of the criteria is to be found in the jury decisional process rather than in conceptual clarity.  Is there any generally accepted definition of “social value”?  The “community standard” concept is not even amenable to definition: we are not told by what method a jury is to ascertain it, or what a witness is purporting to talk about when he testifies about it.  Modern society is not bound together by a consensus on issues such as this.  In our diverse society, there is no such thing as a community standard unless we are willing to accept the decisions of legislative bodies.  A jury in an obscenity case is left to mull something that is essentially a fiction. 

            The main objection to both versions, though, is that they allow the public to substitute its judgment for that of each individual in a matter of personal concern to himself.  Society is seen as a cultural collective rather than as the product of individual freedom.

            I would prefer a rule that would incorporate the principles that have long been advocated by libertarians of both the Left and the Right.  This would hold that an adult should be able to see or to read whatever he chooses.

            At the same time, I don’t have much sympathy for an over-simplified version of this that is rampant among those who defend the pornography.  The freedom of the individual, if he chooses to see pornography, should be placed within such bounds as would respect the rights of others not to see the material if that is their choice.

            Under this rule, the state would have a duty to prohibit “captive audience” situations.  Sexually explicit materials could not be displayed on street corners, as they are in Los Angeles; nor in convenience grocery stores as they have been in Wichita.  Drive-in movies would be subject to control if they could be seen by passers-by; and advertisements and posters could not appear in places where they could be seen by those who did not seek them out.

            And the interest that many people have in protecting their children from pornography is subsumed under the “captive audience” principle.  This is so even if the children see the material voluntarily, but without the permission of their parents.  Since the role of parents is fundamentally important to a free society, it is the parents’—not the children’s—consent that is relevant.

            The issues relating to the location of X-rated theaters and bookstores are associated with this right of the parents.  The omnipresent existence of pornography defeats the right of parents to decide the appropriate influences on their children.  Because of this, I consider appropriate zoning, keeping such theaters and bookstores out of residential neighborhoods, both necessary and legitimate. 

            The failure of current law to militate against these aspects seems to me to be the worst part of the present situation.  It is the effect on my children that I dislike most.

            When I favor a libertarian rule on the obscenity issue I do not mean to brush aside the concerns voiced by social conservatism and by those holding religious scruples on the pornography issue.  Those are vitally important concerns.  And yet, the urgent need to raise the cultural and moral tone of our society to a higher denominator must be harmonized with individual freedom.  We cannot rely on the state, through criminal penalties, to create the spiritual and moral fabric that a society needs.  That fabric must exist independently, and be cultivated by such other institutions as the family, the church and the school.

            It seems to me that this is a challenge to those holding libertarian principles.  They wish, as I do, to see the day when sexuality takes its place as an acknowledged part of human expression.  But ideally this should occur at a time when society is in countless ways ascending, rather than descending, the scale of values.  We need a stronger, not a weaker, family unit; a heightened, not a lessened, sense of personal responsibility; a cultural tone that is more ennobled, less vulgar.  Any person who works for a libertarian rule on pornography without also working to enhance these other values has misplaced his sense of balance.  Although as a classical liberal I advocate a libertarian standard, I am far from enthused about what such a standard would bring with it in today’s society. 

            Thus far, I have commented on the substantive issues relating to what the legal standard ought to be.  But the main issue is not really substantive.  It is an issue of method: the question of how such matters are to be decided within a democratic society operating within an orderly system of law.  This aspect is almost always ignored.

            A session of the Kansas legislature just ended.  There have been three or four such sessions since the obscenity issue previously appeared in Wichita.  But those who favor the right of people to see or read whatever they want have not gone to the legislature to seek a liberalization of the law; in fact, the legislature even tightened the Kansas statute a year ago, moving it from the more liberal Roth criteria to the more restrictive Burger Court criteria.

            The reason the advocates of a libertarian rule have not gone to the legislature seems clear enough: they have known they would lose. 

            We have developed far too strong a tendency in American society to rely on the pressures of confrontation or on the courts to change the law.  This is essentially anti-democratic.  The reason for it is that most of the initiatives for social change come from an intellectual subculture what does not share the values held by a majority of the public.

            It can be argued that “libertarian opinion on both the Left and the Right has long acknowledged that the majority has no right to abridge individual rights, that such rights should be inviolate even against the will of the majority.”  I certainly can’t disagree with that; as a classical liberal I am no devotee of the unlimited power of the majority.  But we should recognize that we live in a society that, though not ideal from a libertarian standpoint, is nevertheless overwhelmingly free; that it is a society with orderly processes for change readily available to those who can persuade others; and that, therefore, there is no real justification for resorting to processes that are essentially at odds with democratic procedure. 

            The result of these thoughts is that I support District Attorney Vern Miller in the moves he has made.  Whether he wins or loses in a given case, he is enforcing the law as it is written. 

            What is needed is that those favoring a more libertarian standard seek it in a way that is compatible with democratic method and within the context of a set a values that will enhance rather than dissolve the moral and cultural preconditions of a free society; and that those who oppose pornography on conservative or religious grounds consider how their opposition can be harmonized with individual freedom.

            In the meantime, the law, as it exists, should be enforced.