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The cliché about Playboy—“I buy it for the articles”—is actually valid: It’s hard to imagine why anyone who wants to get off would buy the magazine. Playboy publishes nude shots of tanned women, often with surgically enhanced breasts (the way to tell for sure is to look at the photos in which the women are lying down—fake ones stay unnaturally pert). As for what’s between their legs, all you see are their landing strips or Brazilian wax jobs. None of the models is pictured having sex, and there’s not a naked man, let alone an erect penis, in sight.

Hustler on the other hand, sells sex—hetero, lesbian, oral, anal, group, in various positions and various combinations thereof. More often than not, a vagina is in full view (usually helpfully held open by the model for examination); hence the industry term for magazines such as Hustler: “pink.” But the two are strange bedfellows. Playboy and Hustler, along with the now defunct pornography tabloid Screw, are the only skin magazines that have consistently included political editorial commentary.

All of this is brought to readers courtesy of the First Amendment of the Constitution: “Congress shall make no law...abridging the freedom of speech, or of the press.” As various court rulings in the past century established, the First Amendment covers the publication of photos of a three-way with a dildo just as much as it covers an editorial that calls the president a liar. Although Roth v. United States (1957) held that obscenity is not constitutionally protected under the First or 14th Amendments, it’s difficult to prove that something is obscene. The Supreme Court defined obscenity in Miller v. California (1973) with a four-part test: taken as a whole, the contents of the material in dispute must be about sex, be patently offensive to an average person and lack redeeming social value. Neither Playboy nor Hustler, by these legal standards, is classified as obscene.

Anthony Lewis, who holds the Columbia J-school’s James Madison Chair in First Amendment issues, recently published Freedom for the Thought That We Hate: A Biography of the First Amendment. In the book, Lewis argues for the importance of the First in commenting on and correcting the abuses of political power. The speech that some might find objectionable or hateful has a right to be heard in the marketplace of ideas. This applies as much to the words of a terrorist as it does to Screw, Hustler and Playboy.

Most of the magazines found in the porn section of the magazine racks—Busty, Gallery, Fox, High Society, Girl + Girl and Club International, to name a handful—are full of nude photos and little else. The only text is the occasional interview with one of the models, or a tenuous explanatory scenario for the unfolding story in the photos (“Jana & Renee have known each other for what seems like forever. They’ve even picked up guys together. Yet the beautiful buddies never acknowledged their sexual attraction for one another—until Jana started undressing in front of Renee one afternoon...”).

Of course, Screw, Hustler and Playboy do this too, but only to an extent. What sets them apart is their political content. Al Goldstein, Larry Flynt and Hugh Hefner (the founders of Screw, Hustler and Playboy, respectively) present themselves as some of the staunchest defenders of the First Amendment. No one else, with the exception of the American Booksellers Association and various book publishers (think of Shakespeare & Co. in Paris smuggling copies of Joyce’s Ulysses into the United States) has been quite so vocal on the subject. Within the pornography industry, it’s often hard to tell which came first: the porno or the interest in the First Amendment. Cynics might suggest that interest in the latter arose only when it suited the business needs of the former.


Screw

When I initially called Al Goldstein, founder of Screw, he was more than a little defensive. “I do have something to say, but why should I say it to you for nothing?” he said. For Goldstein, self-styled “First Amendment absolutist,” it seems that some speech, at least, ain’t free. He soon forgot his price tag, though, and we met later that week at a diner at the edge of Chelsea, where he loudly exercised his First Amendment rights (which may be the reason the waitress seemed to avoid refilling our coffee cups). He talked about how he’d had sex with 7,000 women (several of whom he had paid) and why he had spent time in prison: Apparently, he had printed his third wife’s phone number in Screw. “I told readers to call her up and call her a cunt.” He paused. “I wouldn’t do that now.”

In 1968, Goldstein started Screw, a New York-based tabloid that preceded Hustler by about six years. It ran close to 60 pages in length and was unique at the time for carrying advertisements for prostitutes; it even had a section called “TV guide” (this took me a second to figure out; it wasn’t television program listings, but a guide for readers interested in transvestites). It also featured explicit photo spreads of men and women having sex (there’s even a picture of someone fornicating who looks suspiciously like Jesus) and printed blatant front-page headlines like “Pussy-Eating for the Gourmet!” “Safari for the Wild G-Spot!” and “Cocksucking Supermodels!” It’s hard to track down a copy now, even on eBay. I finally found Screw at the Museum of Sex in the Flatiron district. The museum has extensive pornography archives, including four cardboard boxes of Goldstein’s publication.

As the above headlines suggest, Screw contained an awful lot of sex-related material. So it’s interesting to note that it’s also full of political-opinion pieces. The first issue contained a pro-gay rights piece that said, “A vote for Nixon, who is nothing but a stalking horse for Right Wing Prudes, is a vote for sexual regimentation and for a crackdown on sex-freedom progress.” When written by Goldstein himself, the pieces often turn into rants. In May 2001, his editorial on then-Mayor Rudy Giuliani said, “Die now, Rudy, you fucking scumbag. Die, already. You’re making me tired.”

Goldstein is quick to insist that he, not Flynt, was first to highlight First Amendment issues in his work. “Hustler came out of Screw. Larry stole the concept,” he said, adding, “Even though he’s a thief and derivative, he’s the most courageous man I know. He has two bullets in him and he still puts out Hustler every month.” Playboy, according to Goldstein, is a different animal entirely. “Hugh Hefner wouldn’t review X-rated movies. He always had the best writers, and he defended Lenny Bruce. Even though I wish he was more courageous, he’s still worthy of admiration.” Later on, Goldstein added that Playboy’s problem was that “Hefner didn’t want to be a bad boy. He believed in the First, and he wouldn’t go as far as Larry and I.”


Hustler

Much like Screw, Hustler contains a mix of porn and politics. In the March issue, there’s an article discussing the First Amendment. “Is ‘Fuck Bush!’ protected speech?” asks regular columnist Nat Hentoff, author of The First Freedom: The Tumultuous History of Free Speech in America, who also has a weekly political column in The Village Voice and has written about the First Amendment in other publications. In the April issue of Hustler, Hentoff’s “Sharing the Patriot Act with Pakistan” attacks the CIA’s practice of extraordinary rendition and argues that “Bush and Cheney have certainly immobilized certain parts of our Constitution.” In the same issue, there’s a piece by Chris Mooney that castigates Bush for refusing to sign the Kyoto Protocol, placing “bizarre” limits on stem-cell research, blocking wide availability of the morning-after pill and tampering with government-produced scientific studies of global warming.

In between these articles, there’s some standard-issue hard-core porn, jarred by an odd juxtaposition: after eight photo pages of two women having sex in the back of a truck, there’s a boner-deflating true-crime piece picturing the naked corpses of murdered prostitutes. As for the porn itself—and this holds true as much for Screw as it does for Hustler, and even more so for Playboy—my chief complaint is that, with some notable exceptions, the models look faintly bored.

I spoke to Larry Flynt, founder of Hustler, on the day he announced he’d pay $1 million to Ashley Dupré (the call girl who allegedly slept with ex-Governor Eliot Spitzer) to appear in his magazine. “We’ll pose her in a single-girl spread. It will be very tasteful,” he said.

Flynt claimed that he has been a staunch advocate for the First Amendment since he first stood trial for obscenity in a Cincinnati courtroom in 1976. “I realized free speech wasn’t something that should be taken for granted,” Flynt said. “I’ve been engulfed ever since.” It’s often said that he even took a bullet for freedom of expression. He was shot by a white supremacist who objected to Hustler’s publication of photos of an inter-racial couple. Flynt survived but is paralyzed from the waist down.

He was also instrumental in helping to shape some First Amendment law of his own; in Hustler Magazine v. Falwell in 1988, the judges held that public figures could not file suit for emotional distress unless the statements were false, and the plaintiff either knew they were false or had shown reckless disregard for the truth. Flynt’s parody of evangelist Jerry Falwell, which claimed that the preacher lost his virginity to his mother in an outhouse, did not meet this standard—it didn’t claim to be based on facts, so it couldn’t be held accountable for its lack of them.

Hustler is still printing photo spreads that push the envelope on notions of obscenity alongside highly opinionated political articles. “I feel that if you’re not offensive, you don’t need the protection of the First Amendment,” Flynt said. “Newsweek doesn’t need that protection. Magazines like Hustler need that kind of protection.” Flynt argues that the protection is not just for the porn, but the political content as well, “especially during the Bush administration, when we lost so many of our civil liberties.” Flynt also claimed the credit for revealing that Republican Sen. David Vitter was among the clients of the “D.C. Madam,” and he’s still gunning for more. “There’s a couple on the grill now. With the election going on, it’s expensive to keep surveillance on those guys because they’re moving around.”

An incredible amount of rivalry still exists between Playboy and Hustler. As Goldstein both denigrated and praised Flynt, so does Flynt with Hugh Hefner, founder of Playboy. “When it comes to the First Amendment, Hefner’s a coward,” said Flynt. “I want to give him credit for one thing—being on the forefront of the sexual revolution. But he never came out of his pad in Chicago or L.A. to defend the First Amendment. He’s very much living in the Fifties. He’d be more comfortable being publisher of Time magazine.”

Asked whether he would have gotten so involved with First Amendment rights had it not been for Hustler, Flynt said, “Probably not, probably not. If I hadn’t gotten into publishing, I would be a gynecologist or an evangelist.”


Playboy

Playboy’s political content is similar in tone to that of Hustler. The January 2008 issue featured a piece by Jimmy Breslin titled “Land of the Free, Home of the Scared.” In it, Breslin argued against politicians who created a culture of fear and repression in the wake of Sept. 11, and cited Giuliani among the offenders. “Probably the first thing he did was to cheer any proposals for more government wiretaps and eavesdropping,” Breslin wrote. The pull quote sums up his thesis: “A government can take fear and control everything with it.”

Articles aside, the “Playboy Forum” is the magazine’s regular section devoted to politics. Recent issues have included a look at AT&T’s involvement in the National Security Agency’s wiretapping without obtaining warrants, and a piece demanding that the current presidential candidates “fix Washington’s fouled-up systems.” The September issue last year linked Playboy explicitly with the fight for free speech. The piece “Playboy of the Muslim World” is written by the editor of Playboy Indonesia, Erwin Arnada, who was charged with indecency (he was subsequently cleared). “If convicted,” he wrote, “I would face nearly three years in prison.” Of the trial itself, he described how “our witnesses included a magazine distributor who was later beaten by thugs for his audacity.”

Hugh Hefner’s Playboy has a whole corporate arm devoted to funding various civil-liberties groups, as well as human-sexuality groups and reproductive-rights groups. It also gives out the annual Hugh M. Hefner First Amendment Awards, the brainchild of Christie Hefner, Hugh’s daughter and CEO of Playboy Enterprises. Hugh Hefner would perhaps like his legacy to be his free-speech advocacy work, rather than the Playboy bunnies. Nobel invented dynamite, but look what he’s remembered for.

Christie Hefner said, “The idea behind the awards, in addition to the direct grants that we give to organizations that work toward freedom of expression, is to acknowledge and honor individual effort, and generate more awareness of what First Amendment battles were.” During our interview, she mentioned “the Playboy philosophy” repeatedly, in reference to her father’s political work. “It’s an integral part of the magazine—he was putting his money where his mouth is when he started the foundation.”

Chip Rowe, a senior editor at Playboy who previously edited the “Political Forum” section, also talked about the philosophy of the magazine, making me wonder whether it was mandated in a staff manual. “Initially, the Forum came out of the Hef philosophy of the mid-Sixties. He had a multipart series where he set out what he believed and what the magazine believed. It was initially a forum of reader response, long essays debating his philosophy. Eventually they started a section called ‘News Front’ on the First, police abuses, gun rights, that kind of stuff.” This slant, he said, “comes out of Hef, definitely. When he was in college, he did a paper on the Kinsey Report and the sex laws at the time that outlawed many types of sexual behavior—including oral sex, in certain states.” Rowe added that Hefner thought that “these laws were unconstitutional, that the state shouldn’t be in the bedroom. From that, he founded this magazine with the idea of freedom and freedom of choice.”

Rowe said he believes that Hefner is committed to his First Amendment work. Responding to critics who say it’s just a case of self-interest, he added, “Of course, that’s part of it, but I don’t think that’s the reason that he believes in it, not because he wants to make money.” Rowe pointed out that the majority of the magazine is editorial content; only about 20 percent is skin. Rowe said he’d send me more information, and the next week, an eight-page document landed in my mailbox, with the title “The Playboy Philosophy—Condensed Version.” So there actually is a staff handbook that provides an answer for every argument ever used against sexually explicit material.

In it, Hefner crystallized his philosophy, arguing that “while the courts have become increasingly liberal in their interpretations of what constitutes obscenity in recent years, they still persist in judging our art and literature on the premise that obscenity does indeed exist and that it is illegal and outside the protections guaranteed to our freedoms of speech and press. It is with this premise that we wish to take issue.” He brings out some big guns—Thomas Jefferson, Justice Hugo Black, George Orwell—to back up his argument that a legal definition of obscenity goes against the First’s declaration that Congress “shall make no law” abridging free speech.

At the end he added, somewhat coyly, “The magazine has never attempted to push to the outer boundaries of what was censorable or what could be considered objectionable by the more sophisticated part of our society.” In other words, Hefner left the hard-core stuff to Flynt.


* * *

Chris Hansen, a senior staff attorney at the American Civil Liberties Union’s First Amendment Working Group, said that the relative merit of the content of porn magazines is irrelevant. “Is the speech valuable or not valuable? Value isn’t a question I ask in that context,” he said, adding, “We only need the First Amendment to protect speech that people find offensive.” He views Hefner and Flynt as defenders of free speech: “Have the publishers of those magazines played a role in preserving the strength of the First Amendment principles that protect speech? The answer is clearly yes.”

Still, not everyone is convinced of the greater good that Playboy and Hustler claim to promote. Last December, I attended a debate at Columbia that was part of a BBC series on free speech and the media. Catherine MacKinnon, a professor of law at the University of Michigan well-known for her radical feminism and her anti-pornography stance, said, “Obscenity law, while it is legal, is useless.” In other words, MacKinnon believes that the four-part test hinders the ability of those who feel victimized by pornography to win an obscenity lawsuit. I approached MacKinnon to interview her for this article, but she declined, citing an intense teaching schedule.

Edward de Grazia, the attorney who successfully defended Henry Miller’s Tropic of Cancer against charges of obscenity (Grove Press v. Gerstein, 1964), disagrees with the argument MacKinnon makes for the banning or censorship of pornography. In his book Girls Lean Back Everywhere (1992), he writes that “MacKinnon and [the late Andrea] Dworkin used the term ‘pornography’ rather than ‘obscenity’ and argued that ‘pornography’ ought to be suppressed (and its disseminators penalized) even if it had serious literary, artistic, scientific or political value.” He then noted that Dworkin produced fiction containing passages that could be deemed “pornographic” by her own definition. When I spoke to de Grazia on the phone, he said that the pair “drafted an anti-pornography bill that essentially defined obscenity as anything degrading to women.” When it comes to the First, de Grazia stood with Flynt and Hefner, saying, “Clearly they believe in free speech and free art, which I believe in as much as it’s possible to believe in.”

As to whether Larry Flynt and Hugh Hefner operate out of self-interest or whether they are martyrs to the First Amendment, the answer is probably a little of both—and there’s nothing wrong with that. Even if you don’t like what they print, as Flynt, Lewis and the ACLU point out, the First is there to protect the speech that we hate. Given the current cultural and political climate, it’s essential to have people who will continue to point that out. Flynt and Hefner do this not only by dint of the pornographic content of their magazines but also, more importantly, with political commentary.

While I’m wary to let Al Goldstein have the last word, he does have a point. “A cock enters a vagina, big fucking deal,” he said. “I’m 70 and I have a foot fetish. What are we going to do—close every shoe store?”

 



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