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As we saw when looking at pornography, legal arguments about abortion and pornography in the U.S. hinged on the idea of "rights." But there are limits to our rights: despite the First Amendment guarantee of free speech, you can't shout "fire" in a public theater, whether it's showing dirty movies or no. So it wasn't surprising that the conservative strategy against porn and abortion in the post-Sexual Revolution world focused on the supposed harm done by smut.
Ronald Reagan's 1980 ascension to the White House — like an Old Testament patriarch preaching a doctrine of fiscal and social conservatism — marked the beginning of this new Comstockery. Behind the former actor's grandfatherly demeanor was a record that included siccing the National Guard on protesting Berkeley students in 1969, defending public prayer, denouncing abortion, and doubting Darwin's theories of evolution.
Edwin Meese III, who served as Reagan's campaign manager, and then Attorney General from 1985 to 1988, was also a pink-cheeked, grandfatherly sort. But behind his '80s aviator glasses, he epitomized the hypocrisy of an approach that trumpeted individual rights while trying to dictate private morality.
As the Reagan Administration's point man in the judicial system, Meese openly challenged the Supreme Court's broad interpretations of the law — at least wherever they conflicted with conservative social policy, most notably in the Roe v. Wade decision. Where the First Amendment was concerned, however, the Constitution could be thrown out the window. In May of 1984, Reagan called for a commission to investigate pornography. Its purpose was to question the findings of the 1970 Commission on Obscenity and Pornography, which reported that there was no link between sexually explicit material and violence. (Citizens for Decent Literature founder Charles Keating, the sole Nixon appointee on the commission, was also the lone dissenter to its findings.)
The new Attorney General's attack on the Supreme Court was a tempest in a teapot. Bolstered by conservative Nixon appointees, the court had already been turning the fifties' and sixties' tolerance for smut on its ear for a decade. In 1973, Chief Justice Warren Burger, in his commentary on Miller v. California, created a new litmus test for the legality of porn.
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You can't shout "fire" in a public theater, whether it's showing dirty movies or no.
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Rather than the older "redeeming social importance" defense, the new criteria were "(a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
The "community standards" guideline had teeth. In 1976, federal agents ordered copies of the New York-based tabloid Screw to be delivered to Wichita, Kansas, with the express intent of entrapping its foul-mouthed publisher, Al Goldstein. Not surprisingly, a conservative jury convicted Goldstein of obscenity. Similarly, in 1977 Hustler publisher Larry Flynt was convicted for obscenity in Keating's hometown of Cincinnati. Flynt, ever a mirror of the American psyche, conveniently became a born-again Christian while his lawyers lobbied for appeals. In June of 1978 — four months after Flynt was shot and paralyzed in what was likely a Mafia hit — long story — Hustler's cover showed a woman being fed through a meat grinder, with the headline, "We Will No Longer Hang Women Up Like Pieces of Meat — Larry Flynt." Though Flynt was later acquitted of the criminal charges, the June cover, with the headline deleted, became deadly ammunition in the war against pornography.
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