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 between "private" morality, which is not subject to law, and public actions that may rightly be subjected to legal regulation.
Considered as isolated acts, someone's recreational use of narcotics, for example, may affect the public weal negligibly, if at all. But an epidemic of drug abuse, though constituted by 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. It does, however, undermine the belief that the recreational use of drugs is a matter of purely private choice.
Much the same is true of pornography. Even in defending what he believed is a moral right to pornography, the late philosopher Ronald Dworkin identified the public interests damaged when pornography becomes freely available and widely circulated. Legal recognition of the right to pornography would, Dworkin conceded, "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."
I do not see any way to avoid the conclusion that Dworkin's efforts to derive from the principle of equality a moral right to pornography cannot 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 involves 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 themselves and their children.
When we bring this reality into focus, it becomes apparent that the familiar depiction of the pornography debate as pitting the "rights of individuals" against some amorphous "majority's dislike of smut" is false. 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, and of governments to respect and protect, their interests 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 culture in which children are reared. A decent social milieu cannot be maintained simply by shielding children from pornographic images. It is the attitudes, habits, dispositions, imagination, ideology, values, and choices shaped by a culture in which pornography flourishes that will, in the end, deprive many children of what can be characterized as their right to a healthy sexuality. In a society in which sex is depersonalized, and thus degraded, even conscientious parents will have enormous difficulty transmitting to their children the capacity to view themselves and others as people rather than objects of sexual desire and satisfaction.
We know that a more or less unbridled culture of pornography can result in a sexualization of children that robs them of their innocence and even places them in jeopardy of sexual exploitation by adults. Can anyone honestly deny that we have witnessed a shameful sexualization of children in our own culture? Think about the sexualization of adolescents in contemporary music, television, movies, and commercial advertising.
Some might argue that the artistic value of certain pornographic depictions provides a reason to immunize it from legal regulation. But such depictions remain pornographic, and their negative impact on public morality cannot be denied. Moreover, it is difficult to see how any degree of artistic merit could justify the insult to morally conscientious taxpayers when they are forced to pay for pornographic depictions.
Art can elevate and ennoble. It can also degrade and even corrupt. Whatever should be done or not done by way of legal restriction of pornographic art, we ought not to make things easy on ourselves by pretending that art cannot be pornographic.
There are real and substantial human and personal interests competing with "freedom of expression" when it comes to the question of art and pornography. If we, as a society, are to decide against these interests, we should face up to what we are prepared to sacrifice, particularly when it comes to the well-being of children. And if judges are to impose a decision against these interests, they should provide a legal and moral justification for doing so. It will not suffice to appeal to "established constitutional principles." The truth is that so-called established constitutional principles on free speech and pornography are, at best, weakly justified in the cases.
In defending pornography, a bare reliance on a right to free speech simply confirms the validity of the arguments that Hamilton and other Founders advanced against the Bill of Rights: namely, that the enumeration of certain rights would distort the scheme of liberty established in the body of the Constitution by miseducating Americans about the nature of constitutional government and the moral substance of their rights.