Few works of political reflection are as intrepid as Harry Clor’s 1969 classic Obscenity and Public Morality. Clor, teacher and scholar, who died in 2018, wrote the book with a sense that the sexual revolution and the rights revolution underway at that time challenged those who would defend a civilized public morality. He knew that liberal democracy’s perennial dispute between personal freedom, public morality, and the law would never die and that public morality needed a defense. Never having met the man, I write this as an appreciation of his work and career.
Even his intellectual opponents recognized the depth of Clor’s treatment of these issues. Charles Rembar, the chief litigant in the effort to deregulate obscenity and author of The End of Obscenity (1968), thought Clor’s “the best pro-censorship book.” Clor’s book was written after the fashion of Aristotle: beginning with the common opinions of the matter and deepening them through a discursive confrontation with facts and arguments and concluding, philosophically, with modest judgments suited to the nature of things. Neither alarmist, libertarian, moralist, nor dogmatist, Clor presents a thorough argument, which makes the book less than accessible to the rushed or casual reader, but manifestly inspiring to those interested in thinking.
The deepest issue in Obscenity and Public Morality concerns the clash between obscene art and the demands of public morality. Clor methodically treats the works implicated in obscenity suits in an effort to do that which is notoriously difficult: define the obscene. Obscenity, for Clor, reduces the human to a body, or makes the private public without also making people more than a creature of elemental passions and sensations.
Art often implicates the body and the lurid, but puts them in the service of character development, shows the emptiness of a pleasure-obsessed life, or reveals a deficiency. Thus Aldous Huxley’s Brave New World (1932) or D.H. Lawrence’s Lady Chatterley’s Lover (1928) are art with sex scenes, while John Cleland’s Fanny Hill (1748) and The Lustful Turk (the 1828 work by John Benjamin Brookes about which Clor, a gentleman, writes in stunning detail) are obscene. Henry Miller’s Tropic of Cancer (1934) presents the hard, borderline case in Clor’s view.
Societies can take much of the former but should be concerned to censor the latter.
The rationale for censoring obscenity concerns sustaining public morality which, for Clor, is a communal ethos shaping the opinions, habits, and actions of citizens in every political community. Citizens take their bearings from what is honorable in a particular society—and a political community’s public standards of honor and its legal standards end up constituting its moral standards about right and wrong. Most individuals require “authoritative pronouncements” on the proper nature of the family, marriage, duties, love, and modesty, among other things. Undergirding public opinion is the law, which helps to form the public opinion in the first place and then sustains it in the long term. The law is an educator, as much in obscenity as in race relations. Civil rights laws played no small part in making racial discrimination dishonorable, writes Clor; and in like manner, obscenity laws contributed to the bad name that pornography once had and still, to some extent, does have.
Roth v. United States and Miller v. California
At the time that Clor wrote, radicals depreciated a relatively conservative, public morality which taught self-restraint, modesty, and enduring love, as repressive and uncreative. He chronicles and analyzes how the Supreme Court gutted the reasonable obscenity standards that existed before its decision in Roth v. United States (1957) and then gutted the compromises involved in the Roth holding itself over the course of a decade. None of the Court’s decisions gave adequate weight to the interests of public morality, which is to say that legal rules developed without reference to their purpose.
Broadly speaking, before Roth, the claims of public morality won out. The various legal tests derived from Roth increasingly narrowed the range of justifiable censorship through the claim that works had to be “utterly without social redeeming value” to be banned. Few works would be censorable under those conditions. Roth’s road to Miller v. California (1974), which seemed only to ban hardcore pornography, was evident to Clor in 1969.
The Supreme Court was unwilling in certain respects to carry its libertarian judgments to their logical conclusion. This lack of logic sowed confusion about purposes while rendering the regulation of obscenity less and less legitimate. Aspects of obscenity regulation remained—including, most prominently, the public display of pornography and age restrictions on its purchase.
Liberals tried to tell themselves that these restrictions were primarily about consent, not really morality. Public display would force some to see images they did not want to see; age restrictions concerned parental rights to raise their children how they wanted. Neither argument stands on its own, however. Such public displays of pornography are banned because obscenity is corrupting, or detrimental to a healthy public morality—otherwise obscene displays would not be singled out. Legislators adopt age restrictions because they think it is legitimate for parents to think that youthful exposure to obscenity is harmful.
It is difficult to imagine these restrictions surviving as the public becomes ever more tolerant of obscenity. But something of the old public morality remains to be protected and, perhaps, built upon.
Caring About the Effects
Censoring obscenity would henceforth only be allowed when obscenity causes harm. As a result, Clor, following the courts, found it necessary to engage the social scientific literature about the harms that obscenity causes. Scientists brought their art to bear on the public policy of obscenity, and Clor shows the limits of their wares. Scientists ran pseudo-experiments. They conducted surveys. Their analyses came across either as advocacy for one side or the other, or as pseudo-science, or both—in any case leaving unasked the central question of the long-term effects of a public increasingly exposed to obscenity. Probably no ethical science could conduct a genuine experiment on obscenity.
For Clor, the images in the culture contribute to shaping the minds, desires, and emotions of citizens, with long-term effects on their character and actions. Exposure to obscene material operates on “deep-rooted passions and inclinations” and thereby affects attitudes and character. Deregulation will therefore “break down moral standards by undermining the convictions and sensitivities which support them.” This is what the sexual liberationists thought (and why they favored deregulating obscenity). This is what moderate moralists like Clor thought, too.
Science cannot easily isolate variables sufficiently to demonstrate the extent to which obscenity causes such changes. Suggestive evidence for Clor’s chain of reasoning has emerged. Recent studies in brain structure show how exposure to pornography rewires the brain, with no few implications for reshaping the affections of viewers of pornography. More could be, and has been, said about this.
Citizens support public morality and the laws necessary to sustain it because they believe morality and its laws are right and salutary and, perhaps, holy. While Clor recognizes that the restrictive view is connected to revealed religion, he seems to lack confidence that religious belief will continue to sustain itself. He seeks therefore to protect great literature and the liberal arts from the corruption that may come from the deregulation of obscenity, in the hopes that these cultural achievements might provide a basis for resisting an obscene culture. Deregulation brings with it a decline in standards—and a palpable, profitable play to the most prevalent human passions. When the liberal arts and religious belief decline, what possible ground for a conservative public morality would remain?
Clor’s Obscenity and Public Morality shows that the best arguments against deregulating obscenity were made at the most crucial time of policy change. Few ears heard them. Nor did Professor Clor enter the political arena overmuch. He did not serve on the Meese Commission of the mid 1980s, the last high-level public effort to regulate obscenity. This might have been because Clor was disinclined to engage in such high-level politics, or because public officials failed to recognize the gem that his discursive book was, or both. Certainly, Aristotle and Professor Clor knew that the wise hardly constitute a faction in politics.
In any event, he lived to see the advent of Internet pornography and the general coarsening of American culture along the lines he anticipated. The liberalism that Clor corrects and qualifies is the predominant public morality, a truth that testifies to the wisdom of the political philosopher and to the limits of our age.