June 9, 1986: Maine Voters Defeat First Referendum on Obscenity

LOS ANGELES—In our latest version of This Day in Porn History, June 9 marks the 28th anniversary of a historic vote for both Maine and the nation. In the first statewide referendum on obscenity in the history of the United States, Maine voters decided on this date in 1986 that a proposed law that would have levied a possible five-year prison term on anyone convicted of selling or promoting obscene materials was not for them.

The nation's papers had a field day with the story. "Call it rugged individualism, call it stubbornness, call it Yankee independence—call it any of those things—but Tuesday's big vote in Maine seems to prove that folks up there aren't about to hitch their freedoms to the anti-pornography bandwagon," reported the Philadelphia Inquirer. "As a result, the first statewide referendum on obscenity in the nation's history was taken to the woodshed and clobbered."

According to staff writer Dick Polman, Maine was just being Maine. "The way the winning side sees it, your basic Maine voter, who already has spurned a mandatory-seat-belt law and a mandatory-bike-helmet law, was not about to pull the lever for a ballot proposal that would have made it a crime, with a maximum prison term of five years, to sell or promote obscene materials—especially given that the definition of obscenity seemed as elusive as a squaretail brook trout in a country stream.

The vote wasn't even close, running about 70-30 percent against adding the new crime to the books. "But the Christian Civil League of Maine, the people who piloted the push against porn, were holding their heads aloft yesterday, even though the vote, with unofficial returns in from 665 of 669 precincts, was 72 percent to 28 percent against the referendum," reported Polman.

"People didn't understand what we were trying to get rid of," Kim Leupold, a campaign consultant hired by the league, said at the time. "They didn't understand the issue was pornography, not censorship. But they apparently felt endangered."

Endangered, perhaps, or, unlike Leupold, the preponderance of voters interpreted the attempt to suppress pornography as in fact being synonymous with an attempt to censor speech.

While not that long ago in geologic terms, the referendum in 1986 took place in a very different atmosphere from that which exists today. Pre-internet as well as before the advent of today's immersive digital economy, the 1980s were a time when the question of what to do about pornography was being addressed at the highest reaches of the federal government.

As Polman explained at the time, "The [Maine] referendum fight was, in essence, a distillation of all the views aired nationally over the last few years, and most recently in the debate over an impending report by the Attorney General's Commission on Pornography that links porn with sex crimes and urges a stronger effort to stamp it out. The Maine concept was nothing new—its bid to ban materials that lack 'serious literary, artistic, political or scientific value' is on the books in more than 40 states, including Pennsylvania. But the ballot-box strategy was historic."

A look back at the core arguments being made reveals that despite our assumption today that anti-porners in the past used porn's immorality as their main cause for opposing it, issues of safety were very much in play, and used by supporters of the proposed law to make their case.

Sam Lanham, a Bangor lawyer who drafted the anti-pornography measure for the Christian Civil League, said at the time, "The issue of violence against women and child abuse is a powerful message, and most people are still concerned about it. People who voted against the referendum say they were also against pornography, but they didn't see this as a way to fight it. . . . I still could not see happening what they [foes] suggested would happen here: the banning of legitimate works."

But despite those efforts, the debate over the law became about censorship and not the  (still-unproven) link between porn and sex crimes. "We didn't want to go around 'denying' there was a [pornography-crime] link and be on the defensive," Bob Howe, campaign consultant for the Citizens Against Government Censorship, said in 1986. "We made censorship the issue. 'Did people want the state to tell them what they could see, read or hear, and let one group impose their moral values on the rest of us?' That's what we conveyed."

One television ad even showed "the burning of a pile of books such as The Color Purple and The Grapes of Wrath in the presence of a cop clad in leather. Kim Leupold, the civil league campaigner, was still smarting over that ad yesterday. She said it was very effective. She also said it was very misleading."

As a fascinating aside to this historic vote this day in 1986, the virulent anti-porn feminist activist and author Andrea Dworkin, who was still alive, said that she, too, would have voted against the Maine law if she lived in the state. Her argument was that such laws are ineffective and a waste of time and resources.

"An obscenity law might've made them [porn opponents] feel better, but it wouldn't have done anything to get rid of pornography," she argued. "Police enforcement is always unreliable."

According to Polman, "Dworkin would prefer a law allowing women to sue pornographers directly, in civil court, if they could prove that they were hurt by people using the material, but measures like that have failed thus far in several localities."

Dworkin added, "What Maine does prove is that people wanted to use the ballot to express their outrage at the saturation of pornography. They cared enough about their communities to try a new approach. And, unfortunately, it means that they feel the political process was letting them down."

Obviously, from the vantage point of today, no one in 1986, not even Andrea Dworkin, could even begin to imagine the true meaning of "the saturation of porn."

Luckily, the imperatives of the First Amendment remain mostly intact, so that the core arguments that would surround any similar such law remain precisely the same today as they were back then when Maine voters took to the ballot box to decide what could have become a long and costly constitutional battle, but which instead became an interesting footnote in history.