Obscenity

Pornography and Obscenity
Often used interchangeably, the terms pornography and obscenity in fact havedifferent meanings. Pornography, derived from the Greek for "writing about prostitutes," refers to literature, photographs, or depictions of scenes of sexual behavior that are erotic or lewd and designed to arouse sexual interest.Obscenity, derived from the Greek for "filth," is a more narrowly defined legal term to describe written and visual materials, as well as speech and behavior, all of an explicitly sexual nature, which are not protected by the freespeech provisions of the First Amendment. While some forms of pornography areconsidered legally obscene, others are not. Pornography is divided into twotypes, soft core and hard core. Soft-core pornography, which usually falls under free speech rights, generally involves the depiction of nudity and limited, simulated sexual behavior. Hard-core pornography, by contrast, is a more graphic, realistic depiction of sexual acts, including intercourse, sodomy, and sadism. It is the realm of hard-core pornography that often comes under purview of the courts in determining obscenity.
Pornography, Obscenity, and the Law
Pornographic and obscene materials have a long history, from the Kama Sutra, the ancient Indian sex manual, to depictions on Greek vases, to the celebrated profligacy of John Cleland's Fanny Hill in eighteenth-centuryEngland, and the Marquis de Sade's writings in France of the same period. Society's stance regarding pornography is a relativistic one, differing from one culture to the next and from one historical epoch to another. As early as 1711, the government of Massachusetts got into the censorship game by banningpublication of "wicked, profane, impure, filthy and obscene material," thus begging the question that has bedeviled the censorship debate up to modern times: Who determines what is obscene?
Initially, obscenity offenses fell under laws proscribing blasphemy or disorderly conduct, but in 1815 the Pennsylvania Supreme Court began the long and laborious process of exactly defining what sort of pornography might be considered obscene. In Commonwealth v. Sharpless, that court ruled that a merchant could not exhibit a picture of a nude couple for profit. Two Boston booksellers were convicted in 1821 for selling copies of Fanny Hill, further defining the limits of obscenity. And in 1843, the first federal obscenity law was passed in the United States, to regulate the sale of racy French postcards.
Throughout the nineteenth century and well into the twentieth, U.S. courts based their rulings in obscenity cases on a decision handed down by a British court in 1868. That case, Regina v. Hicklin found as obscene those materials whose tendency was to "deprave and corrupt those whose minds [were] open to such immoral influences, and into whose hands a publication of this sortmay fall." Thus from the outset, the assumption was made that pornography could have a negative effect on the user. In 1873, Congress passed the first general anti-obscenity act, the Comstock Act, named after an anti-porn crusaderwho had founded the New York Society for the Suppression of Vice. Taken in tandem, Hicklin and the Comstock Act provided a narrowly defined rangeof pornography which would automatically fall into the category of obscene materials and were thus not protected by First Amendment rights. The first challenge to such a narrow definition came in 1913 from Supreme Court Justice Learned Hand who argued that such restrictions on passages taken out of contextof the entire work would in effect reduce adults to the reading level of children, an argument later echoed by Justice Felix Frankfurter.
New challenges also came from changing literary and artistic tastes, as wellas an increasingly sophisticated public. Book bannings and burnings continued, and the motion picture industry instituted its own self- censorship guidelines with the Hays Code banning obscenity in "word, gesture, reference, song,joke or by suggestion." The movie industry in particular has had as sketchy history vis-a-vis First Amendment rights. In 1915, the Supreme Court ruled that films did not fall under free speech rights because they were seen as diversionary entertainment and "a business pure and simple." Not until 1952did the Court reverse itself in this. Meanwhile, however, a more relaxed interpretation of other forms of expression was seen, evidenced by the 1933 NewYork court rule determining that James Joyce's Ulysses was not obsceneas it was not written merely with pornographic intent to "stir the lustful thoughts" of the reader. Still it was not for almost another quarter of a century before the U.S. Supreme Court ruled for the first time on an obscenity case.
Upholding the conviction of a New York bookseller, the Court provided its first definition of obscenity in Roth v. United States (1957). Writing for the majority, Associate Justice William J. Brennan, Jr., noted that obscenity depends on "whether to the average person, applying contemporary communitystandards, the dominant theme of the material taken as a whole appeals to the prurient interests." Roth also used as a measure for obscenity the fact that the "material is utterly without redeeming social value." Using these new guidelines, court cases involving the works of D. H. Lawrence, Henry Miller and others tested the liberality of the law. The Court further refined its definition of obscene materials in the 1959 case, Kingsley International Pictures v. Regents of the State of New York, in which it was found that there could be no such thing as "ideological obscenity," and in Ginzburgv. United States, where it was found that "the conduct of the defendantis the central issue, not the obscenity of a book or picture." In Stanleyv. Georgia (1969), the Supreme Court declared that "the mere private possession of obscene matter cannot constitutionally be held a crime."
In 1966, the Supreme Court decided that Fanny Hill was not obscene, ushering in a new era of permissiveness. Films, both foreign and domestic, pushed the limits of what was once considered obscene, and Midnight Cowboybecame the first mainstream film with an X rating. A presidential commissionon obscenity and pornography reported in 1970 that there was no proof that pornography was harmful or linked to violence, and the commission recommendedthe repeal of laws prohibiting the sale of such materials to consenting adults.
Action breeds reaction. As hard-core pornography added more Xs to its rating,voices of opposition arose. The Nixon White House rejected out of hand the findings of a former president's pornography commission. The courts became filled with obscenity cases, and in 1973 the Supreme Court established in Miller v. California the test for obscenity still in use today. Miller built on Roth, employing a three-part guideline for the determination of obscenity:"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 law; and c) whether the work, taken as whole, lacks serious literary, artistic, political, orscientific value." This last guideline was a rejection of Roth's "utterly without redeeming social value" and thus a stricter measure. Miller v. California also narrowed the concept of "constant obscenity" found in Roth to a variable one which could be determined by district attorneysand juries in each community. In addition, Miller v. California also defined specific pornographic depictions which the Court found not protected by the First Amendment, including "patently offensive representations or descriptions or ultimate sexual acts, normal or perverted, actual or simulated," and "patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibitions of the genitals."
Further obscenity definitions and restrictions set in with the Reagan administration and its alliance with the fundamentalist right. In 1982 in New York v. Ferber, the Supreme Court ruled that authorities can prohibit sexually explicit materials involving children without showing that such material is obscene. The 1984 Child Protection Act provided the Postal Inspection Service with new investigative powers against child porn, thus setting the stage for what has become one of the major battlefields in the anti- pornography fight. The government, through the Justice Department, has vigorously prosecutedpurveyors and consumers of child porn, though some of its efforts have beenproven overly zealous, as witnessed in the Supreme Court decision of 1992, Jabobson v. United States, in which a conviction for possession of childpornography was reversed because of entrapment measures on the part of the post office investigators.
The Meese Commission and the Pornography Debate
The Reagan administration continued its war on pornography by convening in 1985 the Meese Commission to study the effects of pornography on society in general and women in specific. With a budget of $500,000 and over 200 witnesses,the Meese Commission set out to prove the deleterious effects that obscenityhas on the body politic. The results of the Final Report concluded that pornography harms the individual and society. An interesting by-product ofthe commission's work was the formation of an unlikely alliance between political conservatives, fundamentalists, and radical feminists. Religious critics of pornography claim that the viewing of pornographic material ultimately warps the user's view of sex, and that users become dissatisfied with their real-life sex partners. Some psychologists also claim that pornography becomesaddictive, forcing the user to search for ever more shocking forms of sexualtitillation. The feminist writer, Andrea Dworkin, and law professor, Catherine A. McKinnon, testified before the commission, adding fuel to the argument of the link between pornography and rape. Dworkin's view of the sex-object role in which pornography places women was clearly stated in her book, Pornography: Men Possessing Women. McKinnon had also previously fought pornography as a form of sex discrimination, taking the debate to another legal level.
However, the inevitable backlash set in with the findings of the Meese Commission: many feminists disagreed with Dworkin's and McKinnon's position, arguing that a crackdown could hit all sexually oriented literature and presentations, pornographic or not. And other social scientists and researchers noted that the link between pornography and violence to women was not so simplistic as described in the commission report, with some even taking the position thatpornography could work as preventative to such violence, allowing a fancifulresolution to aggressive tendencies. Studies thus far have been inconclusivein directly connecting, for example, the viewing of hard-core pornography with rape, and the harmful, addictive effects of pornography on users has alsobeen challenged by scholars.
Electronic Pornography
Increasingly, with advanced technologies, the delivery of pornography and thus its control has reached new levels of sophistication. In addition to cabletelevision, dial-a-porn companies, and home videos, the growth of the Internet has created an entirely new medium for the dissemination of any message, including pornographic ones. Parent groups and religious groups have banned together to lobby for control of such media. Such pressure bore early fruit in the music industry with the Washington, D.C.-based Parents' Music Resource Center headed by Tipper Gore. By 1990 the group had managed to label 93 major music releases with the "Parental Advisory: Explicit Lyrics" warning. However,critics of such measures point out that these warning labels only whet the appetites of kids for such products.
The use of 900 numbers for phone sex has also come under close scrutiny, as many of the users of such services are under age. In 1989, the Supreme Court ruled in Sable Communications of California Inc. v. FCC that a ban on dial-a-porn obscenity was constitutional. However, in the same finding, it wasdecided that a ban on indecency was not constitutional. Thus, if governmentwanted to protect minors from such phone communication, narrowly defined lawswould have to be adopted that would not at the same time violate the free speech rights of adults to the same services.
Television, too, has had its critics, of both the sex and violence portrayedon the airwaves. One study has shown that in a typical week of viewing, teenscan see about 57 sexual behaviors on afternoon television. During prime timethe viewer could witness 143 per week. New rating systems have been devisedby the industry, under pressure from parent groups and with the implicit threat of possible government intervention if nothing was done. Initially, six categories of parental guidance were developed: TV-Y, TV-Y7, TV-G, TV-PG, TV-14, and TV-M. However, such designations were found to be so cumbersome, that new pressure was brought to bear in 1997, and the television industry, with the exception of NBC, agreed on a new rating system: S for sex, V for violence,L for foul language, and D for suggestive dialogue. Critics of the guidelines say that such labeling goes too far into the realm of censorship, giving noindication of the context of such elements, and scaring potential advertisers away from shows that deal with realistic contemporary content. Such measures are in a way merely stop-gap, however, for in 1995 Congress passed a provision for a so-called V-chip, which, inserted in new televisions, would allow for the automatic blocking of undesirable types of programming.
The Internet has also come in for its share of criticism over the availability of pornography. Not only content has been criticized, but also its ready availability for users of all ages. The worldwide nature of such material as well as the ability to download images makes the system virtually impossible tocensor. In a landmark case in 1997 the Supreme Court invalidated a Clinton administration piece of legislation regulating cyberspace. In Reno v. American Civil Liberties Union the Court decided that sending "indecent" or "offensive" material to a minor through the Internet can not be a crime, as such transmission is protected under the First Amendment. Thus for the time being, censorship of the Internet has been averted.
The Ongoing Pornography Debate
Polls indicate that Americans are divided over the effects of pornography onsociety, but also demonstrate that the public generally shies away from outright censorship. Miller v. California, with its variable obscenity argument, opened the door to local standards and therefore litigation, and such local standards are still in the process of being formed. One difficulty withsuch standards is the evolving nature of society itself. In an information-based society such as ours, new thresholds are reached on a seemingly daily basis regarding what is considered pornographic. The conflict between free speech and censorship in a democratic society is one that will not go away, but rather one that is integrally linked to the political processes and health of the nation.