[Congressional Record Volume 141, Number 168 (Friday, October 27, 1995)]
[Senate]
[Pages S16104-S16105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       SOME SECOND THOUGHTS ON THE FIRST AMENDMENT AND CENSORSHIP

  Mr. LIEBERMAN. Mr. President, I rise today to call my colleagues' 
attention to a thought-provoking speech recently given by Judge Robert 
Bork about the media, and our perceptions of the first amendment and 
censorship.
  Judge Bork, who is now a resident scholar at the American Enterprise 
Institute, made these remarks at a forum sponsored by AEI entitled, 
``Sex and Hollywood: What Should Be the Government's Role?'', at which 
I had the privilege of speaking. As the title suggests, this forum 
sought to examine what effect the media's bombardment of sexual 
messages is having on our children and our culture, and what 

[[Page S 16105]]
steps the Government can and should take to address the public's 
growing concern about the threat posed by these increasingly explicit 
messages.
  In his comments, Judge Bork argued that this threat puts not only our 
children at risk, but our civil society as well. If the entertainment 
industry's standards continue to drop, he suggested, the Government 
would be well within its constitutional bounds to take more active 
steps to protect children by regulating lewd and indecent content. In 
making this argument, Judge Bork reminded the audience that the 
Government has regularly played the role of censor--albeit a limited 
one--for most of our history, and that in recent years the general 
notion of what forms of expression are fully protected by the first 
amendment has, in Judge Bork's eyes, become distorted. Judge Bork's 
comments remind us that our commitment to free expression must be 
balanced by our commitment to protect our children and the moral health 
of our Nation.
  With that, Mr. President, I ask unanimous consent that the text of 
Judge Bork's statement be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

        Sex and Hollywood: What Should the Government's Role Be?

     (Remarks at the Sexuality and American Social Policy Seminar, 
              Washington, DC, Friday, September 29, 1995)

       Lionel Chetwynd is surely correct in reminding us that 
     motion pictures and television are not solely, perhaps not 
     even primarily, responsible for the social pathologies that 
     are rampant in America today.
       An interesting fact that tends to bear out that conclusion 
     is that in both the United States and the United Kingdom the 
     rates of illegitimacy and violent crime, after long periods 
     of stability, began rising in 1960. That was well before 
     movies and television became as sex- and violence-drenched as 
     they are today.
       It is also true that Hollywood's selling of sex has to be 
     seen in the context of all the sexual messages that flood our 
     culture.
       That said, it is impossible to believe that Hollywood's 
     sexual messages have no significant impact on sexual 
     behavior. I find persuasive Jane Brown's and Jeanne Steele's 
     giving of a qualified ``yes'' to the questions whether the 
     sexual messages being sent promote irresponsible sexual 
     behavior, encourage unwanted pregnancies, and lead to 
     teenagers having sex earlier, more frequently, and outside of 
     marriage.
       One of the most persuasive items of evidence is the effect 
     movies and television have had on levels of violence. Why 
     images and words would affect one form of activity and not 
     the other is unclear, particularly since one who contemplates 
     violence must also contemplate the possibility that he is the 
     one who will be hurt. There is no such deterrent to one 
     contemplating sex. The prospect of pregnancy is unlikely to 
     deter teenagers with a short time horizon.
       I am unpersuaded by the argument that the market will take 
     care of the problem. We are told that there is more sex on 
     prime time TV this year than ever before. As for the movies, 
     we will have to wait to see whether ``Showgirls'' is 
     commercially successful. If it is, the market will ensure 
     that the floodgates open.
       There is a major problem caused by the fact that Hollywood 
     must compete with other modes of delivering sexual messages, 
     messages that are increasingly perverted. Some of this is the 
     material on cable channels, which are, I suppose, part of the 
     generic term ``Hollywood.'' But there is also Internet, which 
     supplies prose and pictures of small boys and girls being 
     kidnapped, mutilated, raped, and killed, and even supplies 
     instructions on the best time of day to wait outside a girls' 
     school, how best to bundle a girl into your van, and the rest 
     that follows. Soon it will be possible to get digital films 
     of such materials on home computers.
       The market will not take care of that problem. We already 
     have the evidence for that conclusion. The pornographic film 
     business exploded in profitability when it was no longer 
     necessary to go to an ``adult'' theater to see pornography. 
     It has been possible for some time to avoid the embarrassment 
     of being seen entering such a theater by renting pornographic 
     video tapes. The business is making billions of dollars 
     annually and is expanding rapidly.
       But when pornographic and frequently perverted films are 
     available on home computers, the customer will not even have 
     to face a clerk in getting a videocassette or be seen 
     browsing the X-rated film racks. What we have learned is that 
     the more private viewing becomes, the more salacious and 
     perverted the material will be. On Internet, people are 
     downloading still pictures of pedophilia, sadomasochism, 
     defecation, and worse. Among the most popular pictures are 
     sex acts with a wide variety of animals, nude children, and 
     incest.
       I don't think there is any doubt that competition from 
     pornographic digital films, which can be sent from anywhere 
     in the world, will pull Hollywood in the direction of more 
     and more shocking sexual films and television.
       Is there a role for government? I think the answer is yes. 
     It may be impossible to do anything about Internet and films 
     on home computers. Technology, it is said, is on the side of 
     anarchy. But it is possible to do something about movies, 
     television, and rap music.
       There are those who say the solution is rebuild a stable 
     and decent public culture. How one does that when the 
     institutions we have long relied on to maintain and transmit 
     such a culture--the two-parent family, schools, churches, and 
     popular entertainment itself--are all themselves in decline 
     it is not easy to say.
       It is also no answer to say, ``If you don't like it, don't 
     go to the offensive movies, use the remote to change the 
     television channel, don't listen to rap.'' Whether or not you 
     watch and listen, others will, and you and your family will 
     be greatly affected by them. The aesthetic and moral 
     environment in which you and your family live will be 
     coarsened and degraded. Michael Medved put it well: ``To say 
     that if you don't like the popular culture to turn it off, is 
     like saying, if you don't like the smog, stop breathing. . . 
     . There are Amish kids in Pennsylvania who know about 
     Madonna.''
       The cultural smog has several bad effects. I have mentioned 
     the ugliness of the aesthetic and moral environment, which 
     includes everything from the use in public of language that 
     used to be confined to the barracks and was sometimes frowned 
     upon there to attitudes about sexuality which must translate 
     into attitudes about fidelity and preserving marriages.
       Stanley Brubaker argues that in a republican form of 
     government, where the people rule, it is crucial that the 
     character of the citizenry not be debased. The late 
     Christopher Lasch pointed out that democracy cannot dispense 
     with virtue. He said that we forget ``the degree to which 
     liberal democracy has lived off the borrowed capital of moral 
     and religious traditions antedating the rise of liberalism.'' 
     Those traditions are dissipated by the kinds of 
     entertainments we have been discussing.
       There is, however, a third point. The attitudes and actions 
     expressed in rap lyrics, on Internet, and soon on home 
     computer movies are incitements to action. Do we really think 
     that a heavy diet of pornography, of rape scenes, of coercing 
     children to have sex cannot ever trigger action? If we do 
     not think that, then some form of regulation is called 
     for. The pleasure that a million addicts get from a 
     thousand depictions of rape is not worth one actual rape.
       What, then, can government do? This brings us to the topic 
     of censorship. Almost everybody has been so influenced by 
     liberal ideology that censorship is considered unthinkable. 
     Irving Kristol, who also favors censorship, says it might be 
     more palatable if we spoke of the regulation of public 
     morals, but I don't think anybody would be fooled.
       Somebody is bound to say that any regulation of pornography 
     would violate the First Amendment. That view is a recent 
     development and ignores the historical understanding. Until 
     very recently, not even pornographers thought the First 
     Amendment was relevant in prosecutions for producing and 
     selling the stuff. They raised no such defense.
       As recently as 1942, a unanimous Supreme Court said in 
     Chaplinsky v. New Hampshire: ``There are certain well-defined 
     and narrowly limited classes of speech, the prevention and 
     punishment of which have never been thought to raise any 
     Constitutional problem. These include the lewd and obscene, 
     the profane, the libelous, and the insulting or `fighting' 
     words--those which by their very utterance inflict injury or 
     tend to incite an immediate breach of the peace. I has been 
     well observed that such utterances are no essential part of 
     any explosition of ideas, and are of such slight social value 
     as a step to truth that any benefit that may be derived from 
     them is clearly outweighed by the social interest in order 
     and morality.''
       That Supreme Court understood that the Amendment intended 
     to protect the expression of ideas and that lewd and obscene 
     were no necessary part of such expression.
       We don't have to imagine what censorship would be like. We 
     lived with it for over three hundred years on this continent 
     and for about 175 years as a nation. And we had a far 
     healthier public culture. Ratings systems for recordings and 
     movies have proved a farce. The era of the Hayes office in 
     Hollywood was also the golden age of the motion pictures. And 
     maybe something like the Hayes office would be the way to 
     start. Government could encourage the producers of movies, 
     television, and music to set up such self-policing bodies. We 
     could see if those industries would comply. If not, or if the 
     modern version of Hayes offices proved ineffective, we could 
     contemplate the next step. That next step would be direct 
     government action, which is what we used to have.
       One thing seems clear, however, if the depravity of popular 
     culture continues and worsens, we must either attempt one or 
     another form of censorship or resign ourselves to an 
     increasingly ugly and dangerous society.

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