I often work out my thoughts having imaginary debates with adversaries, and I have from time to time imagined myself having a debate with Larry Flint, having read his book The Naked Truth. You can read it for yourself. I just want to share some thoughts on it in the context of my discussion of the First Amendment.
For starters, I am not a Dominionist who says that all porn should be outlawed in the Christian nation. I think that people who want porn should have access to it, in like manner that adults should have a negotiated access to certain junky or harmful things like tobacco and alcohol. In porn, the physical and emotional gravity of sex is relegated away from the realm serious living and into the thrill of sexual danger as a disposable, voyeuristic pleasure. Porn also has a "snuff" aspect to it that traffics in the danger that porn actors traffic in with STD risk among other things. It was Susan Sontag who said, "What pornography is really about, ultimately, isn't sex but death." That said, free people need to have the opportunity to choose sin – even Adam and Eve had the opportunity to choose sin.
The problem in regard to porn is whether all parties agree that porn is actually an unhealthy "junkfood" version of sexuality. If all parties agree that A) porn is unhealthy and junky and B) all those who want the freedom to have porn should have access to porn it, then those who want the freedom from being exposed to porn need to have that too. Porn should have a "soft prohibition" imposed on it as something that is limited to particular places that adults can go to get it and not be given any public "right of way".
If Flint were to agree to all of this, then it would follow that Flint would impose limits on the availability of his own porn. In other words, if all barriers to Flint's realm were removed, and he had full access to all media, he would impose these boundaries on his enterprise. But Larry Flint is not self-limiting. For Flint to be capable of limiting himself would require that he have some idea that sex is precious and exists for more than disposable pleasure.
The hardcore porn that Larry Flint promotes stems from Flint's view of sexuality that sex is merely something that is available for pleasure, and wherein the emotional dangers are to be dismissed and the physical dangers are to be mitigated with STD technology. In his book Flint says that he doesn't feel a "spiritual" dimension to sexuality. By relegating all notions of sexual gravity to those who feel “spiritual”, he defines any idea of the preciousness of sexuality as belonging to mysticism and not to the realm of rationality. In his book, Flint does not lay out a compelling argument for the ontological un-preciousness of sexuality nor does he seriously take on any of those who have argued for the harm that is associated with porn.
What Flint does is cleverly point to certain hypocritical actions from certain members of the religious right in regard to sex and porn and then offer his unfettered porn and sex as the antidote to hypocrisy and inhibitions. It’s a clever “if the thing I attack is bad, the thing I offer must be good” rhetorical strategy. For this reason, Flint is not merely trying to offer a "tree of temptation in the garden" where people who want to can go and choose a temptation. Rather, Flint is offering a worldview that will pave the way for the expansion of his porn wherever it is believed.
Another clever thing Larry Flint does is to make the First Amendment central to the cause of advancing his porn enterprises. In doing so, he is not only doing his porn enterprises a favor, he is also, ostensibly, doing us all a favor as well. Who, after all, would want to hold back the precious freedom that is guaranteed in the First Amendment? By claiming to be a First Amendment advocate, LF has wrapped his struggle in the grandeur that the First Amendment has because of the ideals that are woven into the Constitution that the First Amendment amends and clarifies. So why is this a problem?
As I discussed in my last blog post on First Amendment Responsibilities, the U.S. Constitution is built on the principle that those who are granted rights are also granted responsibilities. Though the statement “with rights come responsibilities” does not exist as a verbatim phrase in the Constitution, the principle is woven into the very first line. The Constitution begins “We the People…” and proceeds to grant the People ultimate control and, also, ultimate responsibility for the government. Having responsibility for the government also, by direct corollary, includes having responsibility for the Common Good in all the ways that that the caring for the Common Good can be performed whether via the government or not.
The idea of Liberty that is contained in the Declaration of Independence is the classical idea that Liberty is a combination of “license” and responsibility. The Framers knew this precise definition of Liberty even though most people walking the street today probably do not. Most modern people confuse license and liberty together within the word “freedom”, and their idea of “freedom” is usually the same as the classical idea of “license”, which means, simply, the ability to do something without restraint. When Thomas Jefferson said that people were endowed with the right to Liberty in the Declaration of Independence it was understood that they were endowed with a combination of rights and responsibilities for the Common Good in the broadest sense. Liberty in this sense is a choice that is available to citizens as to how they choose to advance the common good not whether to advance the common good.
While the common good has many aspects to it, the essence of Common Good is that it extends beyond one’s immediate self-interest to include the broadest interests of others and the society at large, though it may also include one’s immediate self-interest as a form of “enlightened self interest”. Common Good that includes one’s self-interest is a far cry from stating that ones self-interest and the interest of the common good are inseparably one and the same.
Throughout the past two centuries since the days of the Founders, there have been many attempts to conflate common good and self-interest so that one is rendered indistinguishable from the other (dealing with all of the ideas that have conflated self-interest and common good would require a different essay). It is the conflating of self-interest and common good that has contributed to the modern vocabulary of “freedom” at the expense of the vocabulary of license and liberty. The problem with this is idea of “freedom” at the expense of “license and liberty” that it muddies the very concept of "Common Good".
To truly care about the Common Good in the most magnanimous sense is to examine an issue from the manner in which it may harm or benefit many different sorts of people at different stages of their lives. It requires working making a good-faith effort to have the broadest intellectual lens on an issue. For Larry Flint to take the Common Good seriously in this manner, he would need to examine his actions from the broadest intellectual lens possible, which would be impossible to do without examining the dark side of his enterprise. Flint, however, has made it his goal to “push the envelope” of what our culture and society will tolerate in order to advance his own self-interest.
In order to win a debate over Common Good, a First Amendment advocate like Flint must make Tolerance the highest moral idea for the civic organizing of society, trumping all others. For one seeking a broad vista of common good, caring about Tolerance is a value to be cared for among other considerations. The question of Common Good, however, needs to be a higher question than mere Tolerance, because that act of merely being tolerant cannot sort out all of the moral realities that need to be examined by diligent people to facilitate the Common Good. The Constitution itself is designed for partisans to debate and for one particular view to prevail as law in an an environment of negotiated Tolerance. For those who have A) conflated self-interest and common good and B) have defined Tolerance as the highest common good, Tolerance of their self-interest is therefore the Common Good. They would like you to believe that to question their self interest is to put the American Flag in peril.
Specifically for Flint, vaunting Tolerance of his envelope pushing as the highest common good would define non-criticism his actions or any other similar action as the highest good. In other words, Flint has two choices. He admits that A) he is an advocate for merely the license aspect of the liberty of the First Amendment that is attached to the Constitution for the advancement of his porn enterprise or B) is operating under the pretense that he is an advocate for the whole Common Good, which would mean that he was borrowing from the moral gravity of the Constitution and its First Amendment to lend moral force to the act of with-holding criticism from his porn enterprise. Either way, it is a fish wrapped in the American Flag.
This is connected to the larger problem. Conflating self interest with the Common Good in the name of freedom has come at the expense of many peoples' personal commitment to diligent intellectual honesty in examining the Common good from a magnanimous vantage point. It has degraded the quality of our citizenry.
In regard to the Constitution, I am not a strict “originalist” when it comes to interpreting the Constitution in that I don't believe that we are hidebound to the original meaning of something on a particular issue when that meaning no longer makes any sense for the promotion of our common good. I do, however, think that we need to keep the original purpose of the constitution in mind, and doing so requires an originalist understanding of the meaning of Liberty and common good. In regard to a particular Constitutional issue, we need to see how the original meaning was intended to advance the common good/liberty in its day, and, from there, adjust our modern day interpretation of and application of it in order to arrive at an understanding that is relevant for promoting the common good in this day and age.
As I have said, the First Amendment was originally created with the idea of having freedom of assembly and freedom of the press for a citizenry who had been given the charge to seek to advance the Common Good. A later Supreme Court decision said that expression is a form of speech and is thus protected by the First Amendment. And expression truly is a form of speech. Expressions in whatever venue or context comprise a form of "language" in which ideas and values are encoded and encrypted. Though interpretations will vary, these expressions can be decoded and un-encrypted into linguistic speech. It is for this reason that expression speaks, and it is for this reason that an expression should be scrutinized for what it is "speaking" to see whether that expression is advancing the common good. In regard to porn, I think that it is an expression that speaks a message that the pleasure of sex can be enjoyed as a commodity without conscious regard to its gravity.
The problem, of course, is that expressions are harder to decode than speech and are subject of more and varying interpretation. It is for this reason that those who are merely expressing and not speaking have often not held themselves accountable to whether their expressions are advancing the common good, as opposed to advancing the interests and pleasures of a particular clientelle. For this reason, diligent personal intellectual honesty has been somewhat of a casualty of amplifying the First Amendment's verbiage of "freedom of press" and "freedom of assembly" to include anyone's verbal or non-verbal expression.
Even as expanding the original meaning of "freedom of speech" to mean "freedom of all verbal and non-verbal expression" has caused problems, it is not to say that we should not recognize these expressions as forms of speech. As I said before, I do not believe that we are necessarily hide-bound to originalist meanings on specific Constitutional issues, even as we are bound to its original purpose. Rather, as the range of expression has increased and the intent of expressions farther removed from the original intent to directly facilitate the advancement of the common good, there has arisen a need to negotiate these expressions when they have dubious value with regard to the common good.
Employing a "soft censorship" to such expressions is not necessarily a violation of the First amendment. Rather, it follows reasonably from the manner in which the meaning of the First Amendment has been amplified and altered from its original context. We are not hidebound to the original meaning of idea of "speech" or "freedom of press and freedom of assembly" when it comes to all of the sundry expressions that are not written or verbal speech. In a similar manner, we interpret the "right to bear arms as part of a state militia" for the modern era as the negotiated right for one to have certain fire arms in one's personal possession irrespective of one's membership in a state militia. In the service of the common good, we do not interpret the second amendment to mean that one may personally own cruise missiles if one is a card carrying member of a state militia. In this case as in many others, the modern day restrictions result from honest attempt to extract the elements of the original Constitutional ideas that will best promote the greatest the common good in the modern day and age.
In regard to the "freedom of speech", as the idea of the "speech" has been broadened from the original meaning to include a much broader range of expressions, so too has the idea of what "freedoms" needed to be broader and more nuanced to accommodate all of these sundry expressions. These freedoms/licenses are negotiated within a range that spans from A) where you can say anything anywhere and 2 ) where you can only express things in certain times and places. Some expressions are "self-censoring" in that they are necessarily limited to particular times and places (like seeing play or going to an art gallery). Other expressions are not self-censoring, and if they are harmful to the common good, need a restriction imposed upon them from the outside. It is those expressions that lay serious claim to attempting to advance the common good that should, and do, receive more generous freedom from restriction. It is those expressions of dubious value to the common good that receive less.
It is within this nuanced spectrum of "freedom" that we need to decide where to place "porn". In the case of porn, as I am convinced that porn is junky and unhealthy and that its only claim to exist in our society is that of a "tree of temptation in the garden" and nothing more, and has no tenuous claim to the common good of society beyond that. Therefore, it is no violation of the promotion of the Common Good—nor the of the First Amendment— to delineate boundaries to place around porn as are that are placed on other unhealthy and junky things and on other unhealthy and junky forms of expression.
Larry Flint needs to have his porn enterprise limited to a "tree of temptation in the garden" in our society by forces outside of himself. And any effort that Flint makes to use moral gravity of the American Flag to advance his enterprise beyond that boundary needs to be confronted by those who have a broad enough vista of the Common Good to see the dark side of porn.