The contours of American life are regulated by its Constitution and the empowering amendments that make it possible for its citizens to pursue their versions of the ‘American Dream’. In the ‘Land of the Free’, this pursuit of happiness is guaranteed by a number of amendments to the constitution, of which, the First Amendment plays an important role.
Amendment 1 of the US Constitution states that the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Government Printing Office 1013). The exercise of this freedom has at times seen its interpretation being stretched to the limits of normal moral ethical behavior as well as attempts to limit such a freedom. Larry Flynt, the proprietor of the Hustler magazine and a range of adult entertainment products, has successfully used the First Amendment to further his adult entertainment business. The question that deserves examination is that does pornography and obscenity qualify for protection under the First Amendment and is Larry Flynt justified in his stance.
Larry Flynt was born in an impoverished neighborhood in Kentucky and since early childhood had to struggle to make his mark in the society. Very early, Larry understood that ‘sex sells’ and that a particular niche in explicit sexual imagery existed. So in the 1970s Flynt launched his premier hard core pornographic magazine, The Hustler, which was a runaway success. The magazine’s success also set the stage for Flynt’s clash with the State, the Church and the polity who did not approve his explicit depiction of female private parts. Women advocacy groups held the charge against Flynt that his magazine debased women and the slant of the Hustler articles even if the publisher deemed them as parodies, were hurtful and defied commonly held beliefs of propriety.
Central to the ethical dilemma is that it is very difficult to define what pornography is. Popularly, people have stated that they could see pornography; it was all around them but at the same time very difficult to define in legalistic terms. To give an example, Indian Temples such as at Khajuraho and Konark have facades adorned by numerous reliefs with multiple figures in myriad explicit sexual positions (Kieran, 152). In India, which still has specific Victorian laws on obscenity and lewd behavior, such art is tolerated. Shiva, the lord of destruction and regeneration, with millions of followers spread across India and South East Asia is worshipped through a phallic symbol, the Shiva Linga, which could be viewed as an obscene depiction of combined female and male private parts by those in the West unfamiliar with Eastern religions. So does the faith of millions who also have scores of devotees and temples in America qualify as pornography? For that matter, how different are nude paintings and sculptures of men and women made by renowned artists such as Raphael any different from the photos of the same that adorn the pages of Hustler and other ‘pornographic’ magazines? Is it that because Flynt is not an acclaimed painter makes him any less qualified to depict human nudity, a license ostensibly granted to painters and artists who openly display their naked work in the esteemed and hallowed galleries of Paris, London and New York. Is it that because such artistic works are created in small numbers and cannot be mass produced like the Hustler and therefore accessible to only a few and not to many that makes them acceptable and non-pornographic?
Flynt’s argument was that the First Amendment protected not just what the majority considered to be an improper form of expression, but also the right of other forms of expressions. Flynt has stated that Americans no longer found much of anything to be obscene and that in a society …. where one of Jerry Springer’s most popular returning guests was a porn star famous for having sex with 300 people in one day, what could possibly be obscene? (Stein Para 2)”. Scores of lawsuits were filed against Flynt for his irreverent and licentious publishing. Larry Flynt contested every one of these charges under the protection of the First Amendment.
Flynt’s most celebrated victory has been in the Hustler Magazine, Inc., v. Falwell, 485 U.S. 46 (1988) case in which The Hustler had portrayed a parody of a Campari advertisement in which Falwell was shown to ‘state’ that he had an incestuous relationship with his mother while drunk. However, the Supreme Court held that the First Amendment protected Flynt’s right to publish the objectionable article as a parody. The decision of this case became a benchmark for future cases involving the First Amendment and the right to freedom of expression.
Since then the case has been used as precedence for future first amendment cases. Courts did try to limit the blanket freedom guaranteed by the First Amendment as Saunders observes that the Supreme Court has recognized several categories of speech that are unprotected by the amendment (46). This too has proved to be notoriously difficult to prove. The Federal Communications Commission (FCC) defines indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities” (Calvert 3). However, it has proved extremely difficult to use such definitions to challenge the First Amendment cases in courts. Cleveland argues that all pornography dehumanizes women and debases sex ( 1). Others argue that magazines such as Hustler not only debase women but also lead to crimes against women and encourage women to take up prostitution. Magazines such as the Hustler are easily available for under-aged boys to read which feed their fantasies and may lead to deviant social behavior with its concomitant effect on the larger society.
The author of this essay opines that there is no empirical evidence to prove that pornography has led to an increase in violence against women, sex crimes and moral degradation of the society. One can equally argue with as much or more convincing fervor that rank individualism and corporate greed has done more to degrade American society than has a peddler of few girlie magazines. The argument that pornography encourages prostitution because it gives easy pecuniary benefits to women, who otherwise would not have chosen it, is patently false. It is not for nothing that prostitution is known as the world’s oldest profession and that it exists in as much if not greater proportion in far more ‘prude’ countries where public sale of pornographic magazines is banned. At the end, it is a matter of individual choice in a democracy which must be guarded against lest the state encroaches upon the cherished freedom which may lead to the end of the American free society. Very simply, if someone does not like the Hustler, don’t buy it, if someone dislikes pornographic movies don’t watch them, if some do not like the topless clubs and bars do not visit them. In the age of internet, enforcing restrictions is an impossibility which was recognized by the US Supreme court which struck down a 10 year old anti-child pornography law on the grounds that parents could protect their children by installing software filters on their computers (Savage Para 2).
In conclusion the author of this essay opines that since pornography is very to difficult to define and putting restrictions would only serve to harm the free American society, the controversial Larry Flynt, no matter how outrageous may be his actions, has the inalienable right to express as a free citizen of this country and thus is fully justified the protections guaranteed under the First Amendment.
Works Cited
Calvert, Clay. “Sins of Omission and “A Line-Drawing Exercise”: A Response to FCC Chairman Kevin Martin’s Comments on the “Expansion of Indecency Regulation”.” 2008. Journal of Law and Policy. Volume 60. No.1 : 1-11. 2009. Web.
Cleveland, Stephainie. “Pornography”. 2007. Web.
Kieran, Mathew. Revealing Art. NY: Routledge. 2005.
Saunders, Kevin W. Violence as Obscenity: Limiting the Media’s First Amendment Protection. Durham, NC: Duke University Press, 1996.
Savage, David G. “Supreme Court lets Internet Porn Law Die.” LA Times.com. 2009. Web.
Stein, Joel. “Larry Flynt, The Sequel.” 1998. Time.com. 2009. Web.
US Government Printing Office. First Amendment- Religion and Expression. 2002. Web.