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Censorship, the spirit and the letter

The increasing drive in American society to restrict pornography, or ban it outright, is causing a problem for many. Simply, it's this: Is it possible to censor the production and distribution of objectionable books, movies, and other sexually explicit materials without trampling on First Amendment rights?

The answer, alas, is that it is not! For constitutionalists and those who cherish free speech, the argument ends there. Censorship is wrong - under any circumstances. Ban Hustler magazine and you open the door to restricting the publication of the Bible. Place official sanctions on trashy, exploitative novels and you jeopardize the religious treatises of John Calvin and the political writing of John Stuart Mill.

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To sensible people, talking of Hustler in the same breath as the latter works seems ludicrous. But the same principle must be applied. Censorship is the beginning of the end of a free society. It is the route to state control.

So then, is there no way to restrict materials that offend public morality and may tend to incite violence against women and children? Sure there is. Self-restraint in the form of individual boycott of pornographic materials and those who distribute them is the best way. But there are others - including legal maneuvers, such as zoning, that can effectively restrict obnoxious books and films without actually banning them. All governmental devices must be used with great discretion, however. Censorship, even indirect censorship, is dangerous.

Defenders of constitutional freedoms traditionally shun all censorship on the basis that it represses free ideas. Civil libertarians point out that what may be offensive to some may be acceptable to others. And many feel that there is a thin line between public constraints and outright censorship, and that the former could fuel the fires of vigilantes who would ultimately like to determine for everyone what is acceptable and not acceptable in our libraries, bookstores, schools, and markets.

The pornography business in the United States reportedly grosses $7 billion annually. And it is obviously supported by a portion of the mainstream - and not alone by sexual deviates and those with criminal intent.

Some have recommended organized boycotts of publishers of pornography as well as commercial outlets that sell these materials. This is an attractive idea, for it falls short of broad censorship which could be overused, abused, and possibly violate individuals' constitutional rights. But vigilantism must be guarded against.

Of late, a new device is being used in an attempt to control pornography. It comes in the form of local ordinances that address violation of women's rights and would allow the offended (those who could prove in court that they were raped, molested, or violently attacked as a result of sexually stimulating materials) to collect damages against the purveyors of pornography.

Indianapolis recently passed such a law. Similar local ordinances are being discussed in Detroit and in Madison, Wis., among other places. Feminist groups staunchly defend them. The American Civil Liberties Union and other First Amendment purists oppose them - fearing that even well-intentioned action along these lines could lead to broader censorship and government repression. And they are right.

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Meanwhile, the judiciary has moved cautiously in attempts to restrict pornography and deter pornographers without throwing out the constitutional baby with the bath water.

The US Supreme Court, however, has totally drawn the lines on production and selling of obscene materials involving children, holding that child pornography is not protected by the First Amendment. Also, the high court has allowed that localities may restrain pornography in terms of ''contemporary community standards.''

Meanwhile, courts in Michigan and Massachusetts have upheld use of zoning ordinances to restrict locations of so-called ''porn'' shops and ''adult'' movies theaters.

But it's likely the battle has just begun. Despite restrictions, the sexual-paraphernalia empire continues to expand. Pornographic videocassettes and ''aural sex'' phone services have been added to the market of objectionable books, magazines, and movies. And sensibilities are shocked by mounting reports that children, often infants, are being exploited for pornographic publications.

Add to this a movement to link pornography with abridgment of women's civil rights and research (up to now spotty and unsubstantiated) connecting sexually explicit materials with crimes of violence, and the time may be ripe for what some are calling the new ''war on porn.''

The question now is: Are we going to face up to a serious societal problem in a rational and lawful way, or will we let emotional outrage trigger action that could bring about Constitution-defying, broad-based censorship? The first approach is unquestionably the only reasonable one. The pornography business, one hopes, will someday dry up of natural causes as society embraces a more expansive and less sensual - in a word, a more mature - concept of individual worth and dignity.

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