Fast, loose, and stacked: the Attorney General's Porn Commission

Guess what, Miss Liberty. Ed Meese has a birthday present for you. On July 3, a few hours before President Reagan flies north to officiate at the centennial celebration of the world's biggest female statue, his attorney general, if all goes as planned, will release the final text of the report of his pornography commission. The resulting fireworks may rival the big show in the sky over New York Harbor. If they don't, it won't be because Meese hasn't tried.

In the conservative dialectic that defines the Reagan counterrevolution, the report of the Meese commission known officially as the Attorney General's Commission on Pornography—is designed to be the antithesis of its ancestor, the notorious 1970 report of the federal Commission on Obscenity and Pornography. The two reports and the two commissions are indeed antithetical, and not only in the ways Meese intended. If the old commission was the federal equivalent of Playboy, the new one is the equivalent of Hustler — low budget, weak on fact-checking, unsubtle, and fascinated by the perverse.

The 1970 commission had a budget of $2 million, a staff of 22, and two years to complete its mission. That mission, as defined by Congress, was to analyze the obscenity laws, to study the effects on the public of the traffic in obscenity and pornography, and, if necessary, to recommend ways to regulate effectively the flow of such traffic." The 1970 commission sponsored a wide range of original research by reputable scholars, psychologists, and universities. Its chairman, William B. Lockhart, appointed by President Johnson, was the dean of the University of Minnesota Law School.

The 1986 commission, by contrast, had a budget of $400,000 (the equivalent in 1970 dollars of around $150,000), a staff of nine, and one year to complete its mission. That mission, as defined by Ed Meese, was to study the impact of pornography and to recommend more effective ways in which the spread of pornography could be contained." The 1986 commission sponsored no original research, and its consultants were mostly policemen and antiporn activists. Its Meese-appointed chairman, Henry Hudson, is a Virginia county prosecutor who conducted an avid campaign against adult bookstores, and once told the Washington Post, "I live to put people in jail." While serving as chairman, Hudson was angling tor a job—for which he has since been nominated—as a U.S. Attorney.

By all accounts the 1970 commission approached its duties with an open mind. Two or three of its 18 members had taken public positions on pornography, but the rest had not. When it produced its recommendations, they included calls for "a massive sex education effort" aimed at "providing accurate and reliable sex information through legitimate sources," for the prohibition of public displays and the sale to minors of "sexually explicit pictorial materials," and—most surprisingly—for the outright repeal of federal, state, and local laws against "the sale, exhibition, or distribution of sexual materials to consenting adults." The Nixon administration indignantly disavowed the commission, and few of its recommendations were enacted. Not a single state repealed its obscenity laws. But those laws, already spottily enforced, fell increasingly into disuse as police departments turned their attention to more pressing threats to public safety.

The 1986 commission has been stacked to prevent unwelcome surprises. Of its 11 members, six have well-established public records of supporting government action against sexy books and films. One of the commissioners, for example, is a Franciscan priest who has condemned Dr. Ruth Westheimer, the chirpy radio sex adviser, for advocating orgasms in premarital sex. Another is a religious broadcaster whose best-selling book. Dare to Discipline—a title that would not be out of place in the bondage section of an adult bookstore—advocates corporal punishment of children. A third is a University of Michigan law professor who has argued in law review articles that pornography is not constitutionally protected. The Meese commission lacked the financial and staff resources of its predecessor, but since its conclusions were preordained, it didn't really need them.

The Meese report will recommend a long list of stem measures. They include changing obscenity laws to make any second offense a felony rather than a misdemeanor, with a mandatory one-year jail term; prosecuting the producers of porn films under the prostitution laws (because the actors are paid for their work); changing the forfeiture laws to permit the government to confiscate the assets of any business found in violation of the federal obscenity laws (allowing, for example, the seizure of a whole convenience store for the sale of a single dirty magazine); and a big enforcement push, including the appointment of a "high-level" Justice Department task force on obscenity cases. Where the pornography in question is too mild to bring the obscenity laws into play, the report somewhat cautiously recommends "private action"—picketing, boycotts, and the like. Under the federal sunshine laws, the Meese commission has conducted virtually all of its business in public— not only the hearings it staged in Washington, Chicago, Houston, Los Angeles, Miami, and New York but also the working sessions it held in tandem with the hearings. Given the appeal of the subject, the show played to curiously empty houses. Not a single major newspaper assigned a reporter to cover the story on a regular basis. The only reporters who turned up for every meeting, and who assiduously collected the chaotic pastiche of hastily written drafts and documents that will make up the final report, were two representatives of what might be called the trade press. Philip Nobile and Eric Nadler ofForum, a kind of journal of sexual opinion put out by the Penthouse empire, will publish their researches next month in a book. The United States of America vs. Sex: How the Meese Commission Lied about Pornography, which combines solid reporting with lively and intelligent polemics. It is thanks to an advance reading of their manuscript and collection of documents that I have some idea of how the commission went about

It was quite a show. The commissioners heard 208 witnesses, including 68 policemen, 30 "victims," and 14 representatives of antipornography organizations. They were subjected to slide shows that were—in the words of the two ultimately dissenting commissioners, Ellen Levine, editor ofWoman's Day, and Judith Becker, a Columbia University psychiatrist—"skewed to the very violent and extremely degrading," including, in one case, a picture of a man having sex with a chicken. They made field trips to "adult bookstores." They listened as a retired FBI agent assured them that the pornography industry was dominated by organized crime. They engaged in many a zany, aimless conversation, including one discussion of necrophilia during which a commissioner wondered aloud, "Is it legal to have sex with a corpse if you're

The "victims" who testified before the commission included former prostitutes, former abused wives and children, former junkies, and people who complained that a relative had spent the family savings on dirty books. All blamed their troubles on pornography, though the causal connections were never clear. One of the most curious victims was a wispy, neatly dressed man of 38 who appeared, Bible in hand, at the commission's Miami hearing.

"I am a victim of pornography," the witness began. "At age 12, I was a typically normal, healthy boy. My life was filled with normal activities and hobbies. All that changed the following summer when I went to visit relatives, a married couple, who decided to teach me about sex. . . . I saw a Playboy magazine for the first time in my life.

"All the trouble began a few months later, back at my mother's home. The house we rented had a shed out back, and that's where I found a hidden deck of cards. All 52 cards depicted hard-core pornography—penetration, fellatio, and cunnilingus. These porno cards highly aroused me and gave me a desire I never had before."

The witness then detailed his subsequent record of wrongdoing, all of it, according to him, ascribable to the fatal deck of cards. From shoplifting, he descended to masturbation, anal intercourse with another teenage boy, peeping on his mother, "oral and finger stimulation on my parents' dogs," reading sex magazines ("I used to read Hugh Hefner's Playboy philosophy, and I am sure through his help I bought the program of the '60s, hook, line, and sinker"), taking drugs, and—the ultimate degradation—"watching R-rated movies on HBO and Showtime cable."

In conclusion, the witness solemnly told the by now stupefied commissioners, "If it weren't for my faith in God, and the forgiveness of Jesus Christ, I would now possibly be a pervert, an alcoholic, or dead. I am a victim of pornography."

Even the most ardently antiporn commissioners were embarrassed by this sort of testimony—much of which, Chairman Hudson admitted during one of the working sessions, was written and structured by the commission staff.

At the beginning of March, that staff, under the guidance of its executive director, a 34-year-old federal prosecutor from Kentucky named Alan Sears, presented the commissioners with a proposed draft of the final report. It quickly became apparent that this elephantine draft—whose 1,200 pages included 200 pages of lurid, unsubstantiated "victim" testimony—owed more than a little to the porno-card school of discourse. One of the commissioners, Frederick Shauer, the Michigan law school professor, protested.

In a letter to his colleagues, Shauer set forth his complaints. He pointed out that the ex-FBI agent who had testified on the connection between pornography and organized crime was a convicted shoplifter with (in the words of the judge who tried him) "a great propensity to lie." He noted that one publication cited in the draft was included only "because it was astoundingly gross, bizarre, and disgusting," and added: "But that does not make it legally obscene, and it does not make us any less of a laughingstock for including it." He called the section on constitutional law "so one-sided and oversimplified that I cannot imagine signing anything that looks remotely like this." On the "victim" testimony, he wrote: "If this section is included as is, we will have confirmed all the worst fears about the information on which we relied, and all of the worst fears about our biases." Finally, he announced his intention to write an entirely new draft himself, taking into account the views of the other commissioners. Six weeks later, he had done just that.

Whether Edwin Meese realizes it or not, he owes Frederick Shauer a great deal, for Shauer has saved him from issuing a report that it would have been superfluous to ridicule. The Shauer draft, 211 pages long, immediately became the basis for the text of the report the commission will issue on July 3. Though the draft has its share of howlers, on the whole it is reasonable and civilized in tone. It is written in a calm, even stately style. It contains little in the way of hysteria. To the limited extent that it takes note of the views of those who disagree, it treats those views with civility. Yet it preserves the basic conclusion Meese had programmed the commission to reach.

That conclusion, as best 1 can make it out through the fog of professorial qualifications and unacknowledged internal contradictions, is that pornography is "harmful," and that therefore the police powers of the state should be mobilized to suppress it. More precisely, according to the report, certain kinds of violent and "degrading" pornography seem to cause certain ill-defined varieties of "harm"—though not nearly as much harm, the report admits in two separate places, as either "weaponry magazines" that focus on "guns, martial arts, and related topics" or "slasher" movies of the Friday the 13th variety.

The process by which this conclusion is reached relies on a spectacularly tenuous chain of causation. For example, in certain laboratory studies, male college students were shown certain movies—exactly what movies the body of the report does not say, though it seems that in one case they included Lina Wertmuller's highly acclaimed Swept Away—andthen were taken to mock rape trials. Afterward, they were asked to fill out questionnaires. According to the results of the questionnaires, the students who saw the movies seemed to show less sympathy for the complainants in the rape cases than did students who had not been shown the movies. From this it is concluded that pornography causes—well, maybe not sex crimes, exactly, maybe not even a disposition to "unlawful" sexual aggressiveness, but something. (And never mind that Edward Donnerstein, the University of Wisconsin psychologist whose findings the commission relies on, has repudiated its interpretation of his work.)

This is as intellectually rigorous as the report gets where the question of "harm" is concerned. Mostly it turns with relief to more capacious definitions. "An environment, physical, cultural, moral, or aesthetic, can be harmed," it argues, "and so can a community, organization, or group be harmed independent of identifiable harms to members of that community." Broad enough? Apparently not, for in the very next sentence we are assured that "the idea of harm is broader than that."

Another bit of slippery reasoning in the report concerns the report's division of pornography into four "classes." In this scheme. Class I, violent pornography, and Class II,

'degrading" pornography, are definitely "harmful," while class III, nonviolent and nondegrading materials (such as ^depictions of ordinary vaginal intercourse), is probably harmless and Class IV, simple nudity, is definitely harmless. This definition would seem to put the vast bulk of commercially available erotica, including magazines like Playboy and Penthouse, in Classes III and IV But in drafting this section, Shauer broadened the definition of Class II. Taking a leaf from Andrea Dworkin, the renegade feminist antipornography crusader, Shauer incorporated into the "degrading" category "material that, although not violent, depicts people, usually women, as existing solely for the sexual satisfaction of others, usually men, or that depicts people, usually women, in decidedly subordinate roles in their sexual relations with others." By this sleight of hand. Class III suddenly became "quite small in terms of currently available materials," while erotica of the PlayboyPenthouse variety just as suddenly became "degrading"— and therefore, in the commission's view, subject to suppression.

If everything had worked out according to plan, the release of the report of the Attorney General's Commission on Pornography would be the signal for a gigantic national crusade, fronted by right-thinking political leaders, against demon porn. The report is not scheduled for release until July 3, but it is already safe to predict that the crusade will fizzle. For this, thanks are owed the people of Maine.

On Tuesday, June 10, the voters of that rocky, laconic state were asked to approve or disapprove a new, four-and-a half-page statute that for ballot purposes had been boiled down to a one-liner: "Do you want to make it a crime to make, sell, give for value or otherwise promote obscene material in Maine?" The statute itself anticipated some of the Meese report's recommendations (such as heavy jail sentences for sellers of naughty magazines), and its endorsement at the polls—which would have provided the ideal fanfare for the report—was a far from unreasonable expectation. Maine is one of the more conservative states of the region, remote from the sophistications of fleshpots like Boston. The local Roman Catholic bishop campaigned for the referendum, as did a noisy and powerful movement of politically active evangelicals gathered under the banner of the Maine Christian Civic League, which has been a force in the state since it led the fight for Prohibition. The "no" forces, for their part, had the Maine Civil Liberties Union, Democratic Governor Joseph Brennan, and Maine's most famous author, Stephen King.

The turnout was the highest ever for any comparable election in Maine, and the outcome was decisive: 16,101 citizens voted "yes" and 48,976 voted "no," a margin of better than three to one against. Whatever the good people of the Granite State may think of smut, they are unambiguous in their dislike of censorship and the busybodies who promote it.

Politicians are sure to take note of this result. While true believers such as Jeremiah Denton and Pat Robertson will continue to pound the table about porn, their more opportunistic, less principled colleagues will probably ease off. As Maine goes, they will reason, so goes the nation. Posturing against porn may not yet be quite the political equivalent of herpes—it will still be required of Republicans in places where the religious right is strong—but the issue has now lost much of its punch. As for the president, he may be expected to make a Saturday morning speech in order to please his friend Meese and to placate the constituency Meese represents. But the old trouper—who has a history of tolerance for sexual unconventionality among his Hollywood chums, his staffers, and his wife's social circle, who has a daughter whose recent novel includes the normal quota of steamy sex scenes and a son working for Playboy, and who himself divorced one actress and then married another after remarking that he was tired of not knowing the names of the starlets he was waking up next to—will probably refrain from expending much of his popularity on an issue that was never especially congenial for him and is now a proven political loser as well.

Still, even if the report fails to touch off the hoped-for national crusade, it is bound to play an important part in a decentralized but wider effort to constrict personal liberty and freedom of expression. Most of the fuss over dirty books occurs at the local level, in small cities and towns. Typically, an ambitious or perfervid prosecutor decides that obscenity busts are the road to political advancement or social celebrity, or an ad hoc group of self-righteous citizens tries to make its own narrow preferences mandatory for a whole community, particularly for its schools, libraries, and convenience stores. When such people succeed, the result is censorship of a small but tangible kind. They will get plenty of encouragement from the Meese report.

Experience shows that these vigilante actions are almost never aimed at violent or even "hard core" pornography. The targets are usually books that treat sex realistically, or, in the case of convenience stores, popular men's magazines. And the commission has shown the way.

Last February Alan Sears wrote to a number of large companies informing each of them that the commission had "received testimony alleging that your company is involved in the sale or distribution of pornography." He invited them to explain themselves, adding ominously, "Failure to respond will necessarily be accepted as an indication of no objection." Attached to the letter addressed to the Southland Corporation, which operates the 7-Eleven chain of convenience stores, was a photocopy of a page that read in part, "The general public usually associates pornography with sleazy porno bookstores and theaters. However, many of the major players in the game of pornography are well-known household names. Few people realize that 7-Eleven convenience stores are the leading retailers of porn magazines in America." There was no indication of where the page came from. (In fact, it was from the testimony of Donald Wildmon, executive director of a religious right organization called the National Federation of Decency.) A few weeks later, Southland removed Playboy and Penthouse from its stores.

No doubt the Constitution will survive. Yet the fact remains that in some areas convenience stores are the only places magazines are sold. Playboyand Penthouse publish not only erotica but also what might be called politica. Nobody buys these magazines for the articles, despite what husbands caught with them tell their wives. Still, the article are sometimes read. Playboy and Penthouse are sources of faintly heretical ideas as well as sexy pictures. Their removal from their largest sales outlet by what amounts to government intimidation does not improve the political health of the country.

Furthermore, there's no logical reason why the commission's slippery-slope syllogism should be limited to porn. The syllogism goes like this: (a) stores have the right not to carry any publication they don't want to carry; (b) private citizens have the right to boycott or protest in front of any store that carries a publication they don't like; (c) government approval or encouragement of such private efforts doesn't violate the First Amendment. The issue here is a technique of suppression. Some would argue that it is freedom of political speech that is protected by the Constitution. Yet once it is established that indirect government pressure on magazine distributors is okay, there is no guarantee that such pressure won't be applied to publications that the reigning ideologues don't like for political reasons. "Private action" isn't so private when government commissions explicitly encourage it.

The Meese report also will encourage the kind of local crusaders for decency who are forever trying to ban supposedly dirty books from schools and libraries. One doesn't need to exaggerate the likely impact of this sort of thing to understand that it will be real enough for the schoolteachers and librarians forced to choose between their consciences and their jobs. Finally, the commission will probably succeed in its goal of encouraging local prosecutors to do their worst. Given the commission's loose definition of harmful pornography and the advent of the Rehnquist Supreme Court, their worst might ultimately turn out to be quite bad.

Despite its many assertions to the contrary, the Meese commission has simply failed to demonstrate that pornography constitutes a meaningful threat to the public interest. At a minimum, the commission is guilty of what Levine and Becker, in their dissent, call "unacceptable efforts" to "tease the current data into proof of a causal link." But even if some such showing could be made, it would not follow that freedom of speech and of the press ought therefore to be abridged. The First Amendment contains no requirement that the speech it protects be harmless. On the contrary, speech that somebody thinks is harmful is the only kind that needs protecting.

The commission's report will be widely read, because even a government book about sex is still a book about sex. And it's especially irresistible if it's as fat, as obsessed with kink, and as full of inadvertent humor as this one. A final, apposite example of the last: After a long section on the problem of "underprosecution," the commissioners conclude, "We urge that many of the specific recommendations we suggest be taken seriously."

How wonderfully lame. The logically required corollary, of course, would be this: "We urge that some of the recommendations we suggest not be taken seriously."

Though insufficiently inclusive, this seems wise.