Panel Discussion: Regulation of Pornography


DEAN REDLICH: This panel discussion is on the regulation of pornography by law or private action, on how to mitigate adverse effects without offending the first amendment. I ask all of our panelists, particularly the lawyers, to note that the subject also includes private action. I think there is always a tendency on the part of lawyers to view this subject within the framework of governmental action-the first amendment and the fourteenth amendment-rather than some of the other issues we have discussed this morning and this afternoon relating to private action.

Two members of the panel you have already heard from-Herald Price Fahringer and Susan Brownmiller. They will speak again toward the end of the discussion.

Our first speaker is a civil liberties lawyer who has worked in the area of the first amendment. He is with the firm of Hahn, Hessen, Margolis & Ryan, and is a graduate of the Columbia Law School. We are pleased to welcome Mr. Marshall Berger.

OPENING STATEMENT OF MARSHALL BERGER: I am not a civil liberties lawyer. I would say I am a media lawyer, and I did not raise my hand when asked if I was a first amendment absolutist. I am a first amendment pragmatist. In the present Supreme Court my views would be best represented by Justices Stewart and Brennan. The thing that has disturbed me about a lot of the comments I heard today is the notion that because things are done for profit they are necessarily bad. I think that in examining the first amendment one must acknowledge that profit is the motivating force behind our free press. There is a section of the Constitution-the copyright section-that is based upon the concept that free dissemination of information and ideas requires the prospect of commercial gain. I am proud of participating in a copyright case, Rosemont Enterprises v. Random House, which held that although something is done for profit, it still is valuable and therefore will enjoy the protections of the fair use defense in copyright. I submit, therefore, that the presence or absence of the profit motive is irrelevant to first amendment protection.

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