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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-century England, 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 banning publication 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 sort may 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 crusader who had founded the New York Society for the Suppression of Vice. Taken in tandem, Hicklin and the Comstock Act provided a narrowly defined range of 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 context of 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 well as 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 1952 did the Court reverse itself in this. Meanwhile, however, a more relaxed interpretation of other forms of expression was seen, evidenced by the 1933 New York court rule determining that James Joyce's Ulysses was not obscene as 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 community standards, 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 Ginzburg v. United States, where it was found that "the conduct of the defendant is the central issue, not the obscenity of a book or picture." In Stanley v. 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 Cowboy became the first mainstream film with an X rating. A presidential commission on obscenity and pornography reported in 1970 that there was no proof that pornography was harmful or linked to violence, and the commission recommended the 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, or scientific 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 attorneys and 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 prosecuted purveyors and consumers of child porn, though some of its efforts have been proven overly zealous, as witnessed in the Supreme Court decision of 1992, Jabobson v. United States, in which a conviction for possession of child pornography was reversed because of entrapment measures on the part of the post office investigators.

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Law Library - American Law and Legal InformationGreat American Court CasesObscenity - Pornography And Obscenity, Pornography, Obscenity, And The Law, The Meese Commission And The Pornography Debate