The Magazine


Mar 9, 1998, Vol. 3, No. 25 • By JEREMY RABKIN
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David Lowenthal

No Liberty for License

The Forgotten Logic of the First Amendment

Spence, 315 pp., $ 27.95

The title of David Lowenthal's new study of the First Amendment has a decidedly old-fashioned flavor: When he entitles a book No Liberty for License, he really means "license," as in acting licentiously. And the book's title is an accurate indication of its contents. Lowenthal spars with the academic legal commentators of twenty or thirty years ago, in order to press home his attack on Supreme Court precedents of fifty to seventy-five years ago, all in order to vindicate constitutional doctrines of one or two hundred years ago. Altogether, this is a very old-fashioned book -- which may be why, at this moment, it is particularly timely.

There is something revealing in the fact that the central section of Lowenthal's book is an attack on the judicial doctrine that has emerged over the years concerning obscenity and the First Amendment. An analysis that followed the Constitutional text would have to begin with the topic of religion, as the First Amendment does. An analysis that followed the historical order in which issues reached the Court would only turn to obscenity last. Lowenthal's placement of the topic at the center of his own analysis highlights its importance for him. He demands that obscene publications and entertainments be suppressed by law, not safeguarded by twisted interpretations of the First Amendment.

Of course, even in its most liberal phases, the Supreme Court has always refused to extend First Amendment protection to hardcore pornography. But Lowenthal demands much more far-reaching censorship than the Court presently allows. Indeed, he wants to go further than many other conservatives. Harry Clor, for example, published a carefully argued defense of censorship in his 1969 Obscenity and Public Morality, which used various lines of moral and philosophical analysis to distinguish the literary artistry of D. H. Lawrence from the dehumanizing commerce of Larry Flynt. Lowenthal has a much simpler solution: Ban Lady Chatterley's Lover, and be done with it. Similarly, he denounces Justice Rehnquist's 1974 opinion extending First Amendment protection to the movie Carnal Knowledge, a mainstream Hollywood production starring Jack Nicholson and Art Garfunkel. Uninterested in how explicit or artistic the depiction of sex acts may be, Lowenthal wants to ban all literary and visual depictions that promote bad ideas -- such as the thought that adultery is acceptable or that "shallow animal sensuality" is harmless and pleasing.

In order to defend his view, Lowenthal turns to the Founders (and their heirs in the nineteenth century) and shows that they were not at all reluctant to see states and localities impose controls on the press and the arts for the sake of "public morals." Even Jefferson, we learn, derided the sexual mores of the French and warned against influences that would insinuate comparable corruption into American family life. The Supreme Court's 1931 decision in Near v. Minnesota (famous for identifying "freedom of the press" with freedom from the "prior restraint" of licensing or pre- publication controls) made an explicit exception for controls to protect decency, with an eye to such things as film censorship.

But Lowenthal is not content simply to remind us that earlier generations were less tender about censorship. He wants to vindicate the moral outlook of earlier times and revive the rhetorical accents of those times. So he denounces the "violence, brutality, and sadism pervading the mass media" and warns that "the mass media are the pollutants of the soul, having it in their power to do gradual, often invisible but definite harm by degrading our ways of thinking, our ideals, our character, taste and conduct." So it "would hardly be foolish" to blame movies, TV, and popular music for some part of " the enormous crime rate, . . . the increase in drug use, profanity, illiteracy, . . . the multiplication of sexual crimes, teenage pregnancy, wife-battering, divorce." While many law professors today scoff at the idea that the First Amendment has any connection to truth, for Lowenthal it is about eternal verities.