First Things, February 2006.
Theorists of public morality “from the ancient Greek philosophers and Roman jurists on” have noticed that apparently private acts of vice, when they multiply and become widespread, can imperil important public interests. This fact embarrasses philosophical efforts to draw a sharp line that distinguishes a realm of “private” morality that is not subject to law from a domain of public actions that may rightly be subjected to legal regulation.
Considered as isolated acts, someone’s recreational use of narcotics or hallucinogenic drugs, for example, may affect the public weal negligibly, if at all. An epidemic of drug abuse, however, though constituted by discrete, private acts of drug taking, damages the common good in myriad ways. This does not by itself settle the question whether drug prohibition is a prudent or effective policy. But it does undermine the belief that the recreational use of drugs is a matter of purely private choice into which public authority has no legitimate cause to intrude.
Much the same is true of pornography. Even in defending what he believes is a moral right to pornography, Ronald Dworkin has identified the public nature of the interests damaged in communities in which pornography becomes freely available and widely circulates. Legal recognition of the right to pornography would, Dworkin concedes, “sharply limit the ability of individuals consciously and reflectively to influence the conditions of their own and their children’s development. It would limit their ability to bring about the cultural structure they think best, a structure in which sexual experience generally has dignity and beauty, without which their own and their families’ sexual experience are likely to have these qualities in less degree.”
In my 1995 book Making Men Moral and elsewhere, I have argued that Dworkin’s efforts to derive from the principle of equality a moral right to pornography never manage to overcome the force of the public interest in prohibiting or restricting pornography that he himself identifies. That interest is not,fundamentally, in shielding people from shock or offense. It is also something much more substantial: the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life, and the choices effectively available, to themselves and their children, in a domain of human affairs marked by profound moral significance….