Obscenity and Pornography: Behavioral Aspects

Although the terms obscenity and pornography are often used interchangeably, they are different. The obscene is something that is foul, filthy, or impure, especially when exposed to public view. Obscenity is a legal term of art that applies to certain depictions of sex that are not protected by the constitutional guarantee of free speech because they appeal to debased sexual desire rather than the intellect. In Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court defined obscenity as material that is predominantly "prurient" (that is, appealing to impure sexual desire) according to contemporary community standards; is "patently offensive" in its portrayal of sexual acts; and lacks "serious literary, artistic, political, or social value" when considered as a whole. In essence, the concept of obscenity is limited to material depicting hard core pornography, which means graphic portrayals of ultimate sex acts or lewd exhibition of sexual organs.

Pornography is a nonlegal term with a broader meaning. It derives from the Greek words for "harlot" and "writing," and pertains to depictions of erotic and lewd behavior, including works with artistic or literary merit (by definition, obscenity lacks such merit). All obscenity is pornographic, but not all pornography is obscene.

The balance the Supreme Court has struck between hard core and non-hard core pornography in obscenity law assumes that hard core pornography is more harmful to society than non-hard core pornography. Yet studies conducted in the years since the Court created the present legal test for obscenity cast some doubt on this assumption, as many scientific studies have found some non-obscene material to be more harmful than obscene materials. The main reason for this problem is that the legal definition of obscenity in the United States does not include violence or the degradation of women.

In the 1980s a new, feminist-inspired notion of pornography emerged that took violence and the degradation of women into account. Unlike enforcement of obscenity law, which is based on criminal punishment, the new approach was based on civil rights actions (victims could sue pornographers for harms associated with pornography), and defined "pornography" in a new way: as the "sexually explicit subordination of women" that includes various scenes of violence, humiliation, and unequal treatment. Federal courts in the United States declared this civil rights approach unconstitutional in 1985 and 1986 (American Booksellers Association v. Hudnut) because its definition of pornography was too vague and sweeping, and because it represented censorship based on the ideas contained in the material (the main form of censorship the First Amendment does not allow). These concerns did not stop Canada from adopting this logic as the basis of its obscenity law in 1992 (R. v. Butler). Concerns about the negative effects of sexually explicit violence and the degradation of women in pornography have continued to be the subject of political, legal, and scientific debate.

Finally, we should note the special issue of child pornography, which is either pornography made with children as models, or computer simulations of children in sexually enticing poses. Child pornography is a special cottage industry, often consisting of photographs made by child abusers (pedophiles or organized crime) which are then shared with others. Child pornography was not considered a major social problem until the later 1970s, when the children's rights movement had gained headway, spawning new enforcement efforts and laws on the state and national levels prohibiting the making, distribution, and use of pornography made with children. In 1982, the Supreme Court upheld New York's child pornography law (New York v. Ferber), declaring that child pornography is not protected by the First Amendment. These laws have driven the child pornography market underground, requiring law enforcement to engage in undercover tactics that have occasionally given rise to concerns about entrapment (See Jacobson v. United States, 503 U.S. 540 (1992)). In 1996, Congress expanded prohibited expression by passing the Child Pornography Prevention Act, which prohibits the reproduction, possession, sale, or distribution of visual images depicting minors or those who "appear to be" minors ("virtual" child pornography) in sexually explicit conduct. This coverage is considerably broader than the exception to free speech authorized by Ferber, so the law has been challenged on First Amendment grounds. In 1999, lower Federal Courts upheld this act, which is surely headed for Supreme Court. (See United States v. Hilton, 167 F.3d 61 (1st Cir. 1999); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999).)

For the rest of this entry primarily the term "pornography" will be used, as focus will be on the behavioral effects of all forms of sexual representations, not just the obscene.