From the drumbeat of criticism, you'd think that something Orwellian had gripped Mayor Giuliani's New York. "His vision is . . . authoritarian, repressive, and antithetical to our rich tradition of tolerance for the right to protest and dissent," thunders New York Civil Liberties Union executive director Norman Siegel. Rumbles self-styled First Amendment lawyer Floyd Abrams: "We're talking about constitutionally protected speech. You can't drive them out of town." Echoes Kathleen Camuti, a bar owner from Queens: "This is not a free state anymore."
Are newspaper offices being padlocked, or political dissidents herded onto buses for New Jersey? Is an avant-garde publishing house being closed? No: all this fuss is over 100 or so "sex shops," where people take off their clothes, gyrate, and reveal body parts usually kept covered in civilized society. But while the fate of a few tawdry bars and peep shows may not appear a matter of mighty consequence, the legal battle in which the city has been caught up in its attempt to regulate them has taken on epic proportions—albeit a rather comic epic.
Rudolph Giuliani came to the mayoralty understanding one very big thing that had eluded his immediate predecessors—that to reduce crime and reverse the infamous decline in the city's livability, little things counted. He had absorbed the broken-windows thesis of George Kelling and James Q. Wilson—that low-level disorder and vandalism drive law- abiding people from the streets and encourage more serious offenders—and he grasped the implications of Nathan Glazer's famous 1979 article that showed how subway graffiti induced fear in riders by sending the message that "no one is in charge down here." Giuliani put this understanding to work in his crackdown on quality-of-life crimes and his campaign for civility in public places.
It also moved him to take on the pornography business. Neighborhood decline accompanies sex joints just as surely as it does broken windows and graffiti. The associated prostitution and rowdiness are bad enough, even putting aside the assault on public morals—a subject of no concern to carousing college students or conventioneers, but crucial to families trying to raise children on the block.
For decades, the chattering classes have been instructing government in America not to take pornography seriously: relax, who's to judge, don't be a Mrs. Grundy. But Giuliani knew that commercial sex was one of the little things that counted, and in 1995 he secured passage of a new law barring "adult establishments" from operating in purely residential neighborhoods, within 500 feet of residential buildings or schools—or within 500 feet of one another, to ensure that, even within the commercial and manufacturing areas where they could legally operate, sex shops could not cluster into red-light districts, like the old Boston Combat Zone. The law defined an "adult establishment" as one that devoted a "substantial portion" of its operation to "adult entertainment," and offenders had a year to comply.
Instead, they rushed to the courthouse in today's familiar fashion, and then they fell back on a series of delaying actions that finally careened off into the absurd—the kind of things conceivable only in an out-of-control legal subculture. First, they enjoined the city from enforcing its law during a tortuous trip through the New York courts, with a trial, appeals, and finally, in February 1998—almost three years after the legislation's adoption—a 6-0 decision from the State Court of Appeals that cleared the law on both state and federal constitutional grounds. Deputy Mayor Randy Mastro declared the city ready to begin enforcement.
But wait: now came the trip through the federal courts. For although the Court of Appeals has the last word regarding the New York Constitution, perhaps a federal forum might overturn its analysis of the U.S. Constitution's free-speech requirements. So three days later, Judge Miriam Goldman Cedarbaum of the Federal District Court in Manhattan ordered the city once again to cease enforcement while she determined if any First Amendment stone had been left unturned. And when, three weeks later, she declared herself satisfied and prepared to dissolve her restraining order, lawyers for the sex shops and the NYCLU (purporting to represent sex-shop customers) walked down the hall to the U.S. Court of Appeals for the Second Circuit, and a three-judge panel of that body issued its own order against the city, pending a full hearing. At that hearing, two months later, sex-shop lawyers argued that the zoning law did not leave sufficient place in the city for their clients to operate, and that the law's real purpose was to drive the sex shops out of business. Judge Jose Cabranes announced that the order blocking enforcement would remain in effect until his panel ruled. It did so a month later, on June 3, holding that the New York Court of Appeals had adequately examined all the free-speech issues and that enforcement could "begin forthwith."
Victory? Not quite, because under federal court rules the panel's decision would not become official for 21 days—enough time for the sex-shop lawyers to request yet another stay while they petitioned the full Second Circuit to rehear their case. They also asked U.S. Supreme Court Justice Ruth Bader Ginsburg to issue her own stay while they prepared an appeal to her court. On July 22, both Justice Ginsburg and the Second Circuit turned down any further extensions, and in January of this year the full Supreme Court formally declined to take up the case.
So as of July 1998 the legal maneuvering—what people like Harvard law professor Alan Dershowitz call "creative lawyering"—was effectively over, right? Alas, no. Sex-shop lawyers started all over again in New York City's trial courts. The arguments were no longer constitutional, but rather involved a host of dodges on the part of individual pornography businesses to keep the law—now, at last, actually being enforced—from being applied to them.
One tactic was to rearrange floor space so that the owner could claim that only 40 percent was for pornography, the rest for tourist trinkets or classic films. Since the law defined an "adult establishment" as one "predominantly" devoted to adult entertainment, less than half smut must mean you were exempt. City inspectors went in to measure; lawyers for the owners raced to Justice Stephen G. Crane, in Manhattan, to claim that their measurements were better. City inspectors went back to measure more carefully, to the point where buildings commissioner Gaston Silva reported that "some of the wives of the inspectors have been complaining. They don't like this duty for their husbands."
Bronx Justice Douglas E. McKeon allowed El Coche, a club in his borough, to reopen after its owner promised to clothe his performers in bikinis. City lawyers warned of a likely relapse into fully nude dancing, but the judge ruled that "they are entitled to an opportunity to comply" and said that he might visit to check. Craftier still, Ten's World Class Cabaret on East 21st Street announced that it would admit minors, if accompanied by adults, prompting Justice Crane to rule that "Ten's cannot be defined as an adult . . . establishment if it does not exclude minors." Understandably, the mayor exploded, calling this "one of the jerkiest rulings" he had ever seen and sending the City Council to fix the law. But as lawyers quickly realized, changing the key descriptive term in the law- -"adult"—would open a revised law to renewed constitutional challenge and could take the entire process back to square one. So Ten's continues to flourish. Though some smaller places have closed, and others have relocated to approved zones, Gene Eckstein, owner of Wild Wild West in Sunset Park, Brooklyn, sums up the situation to date: "In Manhattan, you've got all the places still basically open; why would they come down here?"
Why is the mayor trying to clean up the porn mess with a toothbrush, attacking the obvious evil of commercial sex joints with a zoning ordinance? Why not simply prohibit the live or pictorial display of sex acts and body parts for money, period? The answer, chorused immediately by the Civil Liberties Union, the assorted "First Amendment lawyers," the judges involved in the case at all levels, and even, grudgingly, by the mayor himself, is that "the Constitution of the United States forbids it."
But all the participants who have gone to law school, or have the thinnest acquaintance with American history, know that this is nonsense. The Constitution prohibits government from "abridging freedom of speech or of the press." We know a great deal about what this meant to the Founders. They sought to protect free speech because it was essential for republican government. Without political debate, without the freedom to criticize officeholders and mount effective opposition to them, self-government through representative institutions would be strangled. Thomas Erskine, a great English lawyer, expressed perfectly the late eighteenth-century liberal understanding of free speech, calling it the capacity "to address the reason of the nation on questions of Policy and the Constitution."
For the founding generation, thinking about free speech began with the prohibition of "prior restraints." As Sir William Blackstone put it in his Commentaries of the Laws of England, a book the American Founders greatly valued: "To subject the press to the restrictive power of a licenser, as was formerly done . . . is to subject all freedom of sentiment to the prejudices of one man and make him the arbitrary and infallible judge of all controverted points." But, Blackstone continued—in a vein the Founders endorsed— that didn't mean that a person could publish anything he liked with impunity. On the contrary: "to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order . . . the only solid foundations of civil liberty." This is the understanding reflected, for instance, in the Delaware Constitution of 1792 (the year after the ratification of the federal First Amendment): "The Press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty."
The most ardent champions of free speech among the Founders, such as James Madison, interpreted the First Amendment as going further than Blackstone; Americans, they argued, should enjoy greater freedom of speech than Englishmen. Along with other Jeffersonians, Madison opposed post-publication punishment for the crime of "seditious libel" (calumnious attacks on the character of a public official). But neither Madison nor any of the other most ardent advocates of free speech thought all speech absolutely protected.
What were the categories of expression for which speakers, writers, and exhibitors might be called to account? About one such category, there is no doubt: the lewd, the licentious, and the obscene—and that meant words, pictures, or other displays that graphically depicted sex, the human "organs of generation," or excretory functions. One of the most remarkable things about discussions of liberty, and especially liberty of expression, in our founding period is the way in which they almost invariably and immediately distinguished "liberty" from "license" or "licentiousness."
This exclusion of graphic sex from the realm of protected speech wasn't just a quirk of late eighteenth-century American thought that quickly died out in our law. In fact, what one sees is remarkable continuity for almost 200 years, with leading commentators and judicial interpreters hewing to the original understanding. You can hear it in Supreme Court Justice Joseph Story's Commentaries on the Constitution of the United States in 1833: "That this [first] amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he may please, without any responsibility, public and private, therefor, is a supposition too wild to be indulged in by any rational man." In 1868, here is how Judge Thomas Cooley put the same idea in his treatise Constitutional Limitations, a standard work until well into the twentieth century: "The constitutional liberty of speech and of the press, as we understand it, implies a right freely to utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character may be a pubic offense. . . . The State has also a right to determine what employments shall be permitted, and forbid those which are deemed prejudicial to the public good. Under this right it forbids . . . the keeping for sale of indecent books and pictures." In 1931, in a great First Amendment case striking down an attempt to suppress a newspaper, Chief Justice Charles Evans Hughes carefully noted that "the primary requirements of decency may be enforced against obscene publications."
As late as 1942, Justice Frank Murphy could write for a unanimous Supreme Court: "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.' . . . [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step toward truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." For most of our history as a nation, therefore, we had public decency laws in force at the local, state, and federal levels without any sense of constitutional contradiction.
What happened? How did a constitution never intended to restrain government from closing down sex shops come to be read as if it did? This makeover was not the work of the American people acting through conventions or legislatures, but rather of a small group of men who served on the Supreme Court in the late 1950s and 1960s under Chief Justice Earl Warren. They virtually defined away the concept of obscenity. Up to that time, though there were always close cases at the margins, "obscenity" had been a perfectly serviceable legal term, and judges had no wrenching difficulties making the relevant distinctions. But in Justice William Brennan's new version, announced in the Roth decision in 1957, "obscenity" became only a tiny, unspeakably vile subset of the pornographic, including only material that met three or four vaguely worded criteria—so vague and difficult of application that even Brennan later abandoned them as hopeless, announcing that henceforth he would vote to protect everything, including the hardest of the hard core.
But his Roth opinion opened the floodgates of the commercial sex industry. After Roth, it became so difficult to prove something obscene that government at all levels virtually gave up trying, and the sex industry boomed. By 1966, the transformation was so complete that Justice William O. Douglas could write that "the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression." As a statement of the American constitutional tradition, this was sheer fantasy; but Brennan, Douglas, and their brethren had made it the law of the land.
Along with the rest of the American elites, the Warren Court had joined the sexual revolution, with its promise that all would be well if we abandoned the restraints and conventions governing sexual behavior that civilization had evolved, and people were freed to pursue sexual "fulfillment." Liberated from repressions, "hang-ups," and "artificial" restraints, we would all be satisfied, healthy, and happy. Today, however, the sexual revolution increasingly looks like a failure on its own terms. Did the revolution make us happier, as promised? On the contrary, as books such as Wendy Shalit's recent A Return to Modesty reveal, we have an epidemic of disappointment and discontent—not to mention divorce, illegitimacy, and date rape. Never has sex been so problematic and contentious as in the Age of Clinton, but we still have the constitutional law that was born of the illusions of 40 years ago.
In 1973, the Court, by then under Warren Burger, attempted to contain the damage and narrowed the Roth test somewhat, making it easier for prosecutors to prove something legally obscene. It was too little, too late. Some cities and towns wrote new ordinances, prompting sex businesses to cut back on intrusive street advertising, but nothing really changed. Only particular pictures, movies, or performances that were proved obscene after years of litigation could be banned, and then the "adult" entrepreneur might be right back in business the next week with a new stock-in-trade.
Here is where zoning law came in. In decisions in 1976 and 1986, the Court allowed municipalities to subject "adult" businesses to zoning regulation without any particular findings of obscenity against any of their wares. The zoning regulation, the Court said, was, after all, not based on the content of what was offered for sale or display, but on the "secondary effects" the sex shops have on their neighborhoods.
Certainly, these secondary effects are very real and very ugly, and it is always better to be able to do something rather than nothing about an evil. Over the last several decades, some cities have made dramatic improvements by using zoning ordinances against the sex industry. But it is a painfully awkward business, and having to pursue this route is subtly corrosive of the way we think and talk about the problem of pornography. Zoning talk requires that our moral faculties be disengaged and our moral vocabulary stifled in favor of a strictly utilitarian language of crime rates, neighborhood blight, property values, and even traffic congestion, because these are the only legally acceptable grounds for regulation.
Even so astute an observer as David Brooks was recently fooled by this dodge. In a February Weekly Standard cover story titled "Good and Plenty: Morality in an Age of Prosperity," Brooks wrote of Plainfield, Connecticut, a small city suddenly confronted with a brand-new sex shop. Residents opposed it by citing the dangers to public safety and the likelihood of more police overtime costs, rather than condemning it as a threat to public morals. Brooks interprets this response as reflecting a decline in moral sensibility, resulting from a combination of prosperity and the morally ambiguous fact that many in the town earn their good living at the nearby Foxwoods gambling casino. But it is nothing of the kind. These citizens were simply responding in what the American legal establishment had taught them for 25 years was the only language appropriate for attacking porn. Without realizing it, they had been bullied into thinking that moral judgments were somehow unconstitutional.
Imperfectly adapted to the task as it may be, zoning is about the only tool that American government has left to combat the porn businesses. But every wretched delaying tactic, every farcical twist and turn in New York's attempt to regulate sex shops, springs from the horrendous error made by the modern Supreme Court when it brushed aside constitutional understandings settled since the beginning of the Republic and covered with free-speech protection the most sexually explicit expression. This error has already become so deeply embedded in contemporary constitutional law that it won't be corrected anytime soon.
The elite culture that will defend it to the last ditch is turning the Founders' theory of free speech upside down. Today, leading legal and political intellectuals are determined to maintain the most scrupulous protection of graphic sex—the kind of "speech" that the Founders thought it essential to restrict—while at the same time they are eager to circumscribe political speech, the thing the Founders were most particularly concerned to protect, in areas from "hate speech" legislation to the regulation of electoral campaigning and the restriction of "issue ads" on the airwaves. University of Chicago law professor Cass Sunstein, for instance, has recently proposed a "New Deal for speech," subjecting various kinds of political speech to governmental regulation in the name of "fairness," much as Franklin Roosevelt's New Deal undertook to regulate economic activity.
For the mayor, and dozens of officials like him around the country, there is nothing to do but soldier on, nailing legal spaghetti to courtroom walls and achieving at least modest containment of the sex industry. But, Mr. Mayor, here is a suggestion that may make the frustration a little easier to bear. The next time someone says to you, "Of course, the Constitution forbids closing the sex shops down," invite that person to imagine asking James Madison for a drink at Ten's, to watch a woman clad only in panties and high heels performing a "lap dance" in front of a customer in return for a $20 bill. Invite him to imagine explaining to Madison, as her crotch undulates within a few inches of the customer's nose, how it is that the constitutional protection of free speech, which he championed with such austerely high-minded fervor, must logically apply to this.