Private Acts and Public Interests

Private acts of vice, when they multiply and become widespread, can imperil important public interests

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.

 

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.

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