Robert P. George: Pornography, public morality and constitutional rights

Published: Sunday, Oct. 23 2011 12:00 a.m. MDT


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Every member of the community has an interest in the quality of the culture that will shape their experiences, their quality of life and the choices effectively available to them and their children.

Theorists of public morality — from the ancient Greek philosophers and Roman jurists on — have noticed that apparently private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of "private" morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.

Considered as isolated acts, someone's recreational use of narcotics or hallucinogenic drugs, for example, may affect the public weal negligibly, if at all. An epidemic of drug abuse, however, though constituted by discrete, private acts of drug taking, damages the common good in myriad ways. This does not by itself settle the question whether drug prohibition is a prudent or effective policy. But it does undermine the belief that the recreational use of drugs is a matter of purely private choice into which public authority has no legitimate cause to intrude.

Much the same is true of pornography. Even in defending what he believes is a moral right to pornography, Ronald Dworkin has identified the public nature of the interests damaged in communities in which pornography becomes freely available and widely circulates. Legal recognition of the right to pornography would, Dworkin concedes, "sharply limit the ability of individuals consciously and reflectively to influence the conditions of their own and their children's development.

"It would limit their ability to bring about the cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which their own and their families' sexual experience are likely to have these qualities in less degree."

In my 1995 book, "Making Men Moral," and elsewhere, I have argued that Dworkin's efforts to derive from the principle of equality a moral right to pornography never manage to overcome the force of the public interest in prohibiting or restricting pornography that he himself identifies. That interest is not, fundamentally, in shielding people from shock or offense.

It is something much more substantial: the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life and the choices effectively available to them and their children in a domain of human affairs marked by profound moral significance.

When we bring this reality into focus, it becomes apparent that the familiar depiction of the debate over pornography regulation as pitting the "rights of individuals," on the one side, against some amorphous "majority's dislike of smut," on the other, is false to the facts. The public interest in a cultural structure — in which, as Dworkin says, "sexual experience has dignity and beauty" — is the concrete interest of individuals and families who constitute "the public." The obligations of others to respect their interests, and of governments to respect and protect them, is a matter of justice.

It is in a special way a matter of justice to children. Parents' efforts to bring up their children as respecters of themselves and others will be helped or hindered — perhaps profoundly — by the cultural structure in which children are reared. Whether children themselves ever get a glimpse of pornographic images in childhood is a side issue. A decent social milieu cannot be established or maintained simply by shielding children from such images.

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