Pornography and the Courts

President Obama’s choice of David Ogden for Deputy Attorney General is not of concern to Americans only. The world-wide explosion of pornographic material, and its exploitation through the internet, is to a great extent the result of legal activism in the United States. Legal activism is a threat at the best of times—a way in which elites and special interests can circumvent the democratic process and impose themselves on the majority. In the case of pornography it also opens the way to a temptation against which ordinary people are inadequately protected.

Porn exploits the existing screen-addiction, induced by TV and the internet, in order to catalyze a far worse addiction, which is the addiction to vicarious sex. Psychologists, philosophers and social critics concur in the judgment that this addiction is immensely damaging, not merely in undermining family relations and exposing children and other vulnerable people to sexual predation, but in destroying the capacity for loving sexual relations. It is one of the great social diseases, and it is looked on with dismay by the majority—including a majority of those who are addicted to it.

Yet it is legal activism in America that has paved the way for the world-wide flood of pornographic material, and for the world-wide revulsion against a society and a culture that seems to find nothing wrong with it. The issue of pornography is therefore not just a major domestic problem: it is, or ought to be, at the top of the foreign policy agenda. For President Obama to be making overtures of conciliation towards the Muslim world—something that is certainly needed—while appointing to high legal office one of the most virulent advocates of a culture that poses the greatest threat to Muslim society is, it seems to me, indicative of a deep confusion—a confusion inherent in the essential negativity of liberal politics.

The idea that pornography is “speech,” within the meaning of the first amendment, and thereby protected by the Constitution, is so absurd that it is hard for an outsider to see how American judges have been persuaded to accept it again and again. Of course porn is big business, and can afford to keep beating at the doors of the courts. But the real reason for the legalization of pornography in America lies in the culture of the liberal elite and in the strategy of legal activism whereby that elite continues its relentless assault on majority values. Porn has been incorporated into the “culture war” precisely because ordinary Americans see it as a threat to family and religious values. This fact is sufficient to prompt the liberal establishment to add porn to its agenda, as one more thing to be defended in the court against the legislature. Again and again we have seen this process at work, as the values and transgressions of elites are seized upon by the ACLU and similar organizations, rebranded as essential liberties, and defended as constitutional rights, regardless of their subversive effect on society as a whole. In the course of the battle the old distinction between liberty and license, made vividly by Locke and essential to the defense of a truly liberal constitution, is forgotten. Transgression is defended as an “alternative life style,” regardless of the damage.

This would matter less if the consequences were confined to America. But because the conflict between liberty and license is fought out in the American courts, the judgments of those courts become precedents around the world. They are a world-wide guide to how liberty and license are currently to be seen. Moreover, by taking advantage of the American courts, the porn industry can build a secure base in the world’s most powerful economy. And internet providers, operating freely in America, can effectively ignore the law elsewhere. For these and other reasons societies around the globe are both dependent on American legal decisions, and also threatened by them. And it goes hard with all of them—America included—when one of the principal activists on behalf of porn is rewarded with one of the highest offices of government.