Porn - Philosophy for Everyone: How to Think With Kink (20 page)

2
For further discussion of this, see Soble,
Pornography, Sex and Feminism
.

3
Lola Ogunnaike, “Sex, Lawsuits and Celebrities Caught on Tape,”
New York Times
, March 19, 2006. Online at
www.nytimes.com/2006/03/19/fashion/ sundaystyles/19tapes.html?_r=1
(accessed July 19, 2009).

4
Hollie McKay, “Pageants to Porn: Kelli McCarty Suffering ‘Creepy’ Treatment Since Launching XXX Career,”
Fox News
, February 12, 2009. Online at
www.foxnews.com/story/0,2933,491426,00.html
(accessed August 25, 2009).

5
Ogunnaike, “Sex, Lawsuits and Celebrities Caught on Tape.”

6
Saul Relative, “Vanessa Hudgens Naked Pictures Scandal: Is It a Box Office Draw?”
Associated Content
, Auguest 18, 2009. Online at
www.associatedcontent.com/article/2076775/vanessa_hudgens_naked_pictures_scandal. html?cat=40
(accessed August 25, 2009).

PART IV

TALKING DIRTY
Legal Issues and Free Speech

JACOB M. HELD

CHAPTER 9

ONE MAN’S TRASH IS ANOTHER MAN’S PLEASURE
Obscenity, Pornography, and the Law

If the First Amendment guarantee of freedom of speech and press is to mean anything . . . it must allow protests even against the moral code that the standard of the day sets for the community.

(Justice William O. Douglas
, Roth v. United States,
354 US 476, 513, 1957)

Censors are, of course, propelled by their own neuroses.

(Justice William O. Douglas,
Ginsburg v. New York,
390 US 629, 655, 1968)

When most people think about our freedom of speech they recall the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”
¹
People often take this to mean that anything we can utter or print is protected, that is, the government cannot prevent me from saying or writing whatever I want. There are obvious exceptions, such as yelling “fire” in a crowded theatre, or utterances that otherwise pose a “clear and present danger.”
²
But barring these limited restrictions, we do seem able to say what we please. However, when the issue of pornography is raised, the Supreme Court has been of a different opinion. Although they are quick to distinguish pornography from obscenity, claiming that not all sexually explicit material is obscene, they have maintained that obscene speech is not protected by the First Amendment.
³
This position has led to a half-decade of contentious court cases.

The scope of the following essay is immense. As the title implies, this essay is going to attempt to cover the relationships between pornography and obscenity, obscenity and the law, and pornography and the law. Any one of these topics could and has filled books. So I will apologize in advance for any glaring omissions and the quick gloss some important issues receive. But let us begin at the beginning, with a brief history of obscenity laws.

Defining “Obscenity”

The history of obscenity laws in the United States is long. The first federal law restricting obscene material was the so called Comstock Act, 17 Stat. 598 (1873). Passed in 1873 by the 42nd Congress, this act restricted the trade, possession, manufacture, and distribution of “obscene” materials and materials of an “immoral nature,” including information on contraception and abortion. The ability of the government to regulate such material went unquestioned until in
Roth v. United States
, 354 US 476 (1957) the Supreme Court considered the constitutionality of 18 USC 1461, which made punishable the mailing of “obscene, lewd, lascivious, or filthy” materials.The issue was not whether Congress had the authority to regulate the mail, since the court recognized this right under Article I, 8, cl. 7 of the US Constitution. Rather, if these laws are to be enforceable, then “obscenity” must be clearly defined.

In a contentious statement of principle, Justice William Brennan, delivering the opinion of the court, made the claim that the First Amendment does not protect obscene speech.
⁴
As justification he offered a brief history of state and federal laws that prohibited various forms of speech, from obscenity to blasphemy. Brennan concluded that the First Amendment was never meant to protect every utterance. Its ostensible purpose is to assure the “unfettered interchange of ideas for bringing about political and social changes desired by the people.”
⁵
Thus, exceptions to First Amendment protections apply to those ideas or expressions that do not possess “redeeming social importance.”
⁶
Obscenity is unprotected according to Brennan since it is not the kind of valuable speech that the First Amendment was meant to protect. So unless the court could find redeeming importance in Jenna Jameson’s oeuvre – work which would be defined as obscene according to the definition below – it would not be protected under the First Amendment.This is a bold conclusion to draw, and a significant reframing of First Amendment law. Therefore, one effect of the
Roth
opinion was that it carved out an exception to First Amendment protections which up to that point were unacknowledged: obscene speech is not protected.Thus, it became paramount to define “obscenity.” If obscene speech is not protected, then it is necessary in order to protect our free speech that the court clearly outline the parameters of obscenity so as not to infringe on legitimate, protected speech.

Justice Brennan offered the following definition of obscenity: “The standard for obscenity . . . is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”
⁷
Brennan’s intention was to offer a definition that was neither too broad nor too narrow. After all, if you are going to delineate a previously unacknowledged area of unprotected speech, that is, speech that can be suppressed at the whim of local legislators, then you are going to want to be precise to protect legitimate speech. Brennan wanted to include all and only obscene material. The problem is that any definition of “obscene” creates the class of utterances it picks out. What is “obscene” is determined by the definition, since obscenity is not something objective that is discovered in the natural order of things; it is a value judgment. Only after the criteria of evaluation have been enunciated and applied can the “obscene” be determined. Thus, the evaluation of the justices determines how broad “obscene” will be insofar as it is their interpretations that determine the scope of the obscene. Brennan’s definition is thus as broad or narrow as the minds of those justices applying it, and therein lays the fatal flaw of obscenity laws. Since the law is applied at the discretion, or according to the discriminating tastes of, the justices, the application of obscenity laws is unpredictable and erratic, the ultimate effect being that people will be prosecuted for committing crimes they could not know were crimes beforehand. This will have a chilling effect on the literary, artistic, and scientific community. If you are the producer or distributer of a potentially “obscene” work, rather than risk criminal prosecution you are more likely to avoid any contact with potentially inflammatory materials.Thus the free exchange of ideas, the purpose of the First Amendment, is compromised. Brennan tried to ameliorate these negative side effects by being as precise as possible. He was clear that obscenity and sex are not synonymous. Material is not obscene merely in virtue of dealing with sexually explicit themes; it is obscene when it does so appealing to prurient interests.
⁸
He did not want to allow the suppression of legitimate contributions to the arts that may be simply risqué, only those that were “obscene.” Brennan strove to make the law clear so it would be predictable and temperate, so it would not have a chilling effect on our intellectual culture.

Will We Know It When We See It?

The problems the
Roth
decision created were numerous. One of the most common was the fact that the justices had to assess each “obscene” work to see if it was truly obscene. Consider having to determine whether a particular work has “redeeming social importance.” The court held that to be classified as obscene materials must be “utterly without redeeming social importance.”
⁹
But is anything without any redeeming social importance? Is this even determinable? As one justice remarked, “Redeeming to whom? Importance to whom?”
¹⁰
Obviously, people do find importance and value in some works others might deem obscene, and they produce, distribute, and/or consume them. Is it the government’s role to determine the value of literary, artistic, political, or scientific works and thus prescribe which attitudes or tastes are valuable and which utterly lack social importance? Frustrated, one justice finally claimed, “I know it when I see it.”
¹¹
And herein lies the problem; we may see the same thing, but evaluate its merit differently.

In addition to problems with the definition itself, there were problems with the very idea of obscenity laws. First, there was the notion that the First Amendment allows an exception for obscene material. Several justices vehemently disagreed with this notion, most notably Justice William O. Douglas, who saw this exception to be a fabrication without justification.
¹²
Second, the problem of applying evaluative criteria such as the obscenity standard made the application of obscenity laws difficult to say the least. As is recognized by the court, in order for a law to be legitimate it must offer “fair notice” to all those accountable to it. People have to know what behaviors are proscribed so that they may refrain from them. If one does not and could not know that one’s behavior was forbidden by law, then the law cannot justly be applied against one. As one justice notes:

I think that the criteria declared by the majority of the court today as guidelines for a court or jury to determine if . . . anyone . . . can be punished as a common criminal for publishing or circulating obscene material are so vague and meaningless that they practically leave the fate of a person charged with violating censorship statutes to the unbridled discretion, whim, and caprice of the judge or jury which tries him.
¹³

Barring the gift of premonition one could not determine beforehand how a judge or jury would bring these vague standards to bear on any particular work. If as a publisher you produced and distributed works by the Marquis de Sade, will a judge or jury applying contemporary community standards find them to be without redeeming importance? Are you a criminal? The history of the courts on this matter demonstrates this is a legitimate concern, as circuit courts overturn local courts and the Supreme Court overturns circuit courts, all using the same criteria. Disagreement is not the exception, it is the rule. Obscenity laws do not afford fair notice, and the court eventually recognized the problems it had created. So in 1973 the court redefined obscenity in an attempt to alleviate these problems.

Here We Go Again

In 1973 the court revisited the issue of obscenity in a pair of rulings,
Miller v. California
, 413 US 15 (1973) and
Paris Adult Theatre I v. Slayton
, 413 US 49 (1973). In
Miller
the court, recognizing the problems with the
Roth
standard, offered new guidelines for the determination of obscenity. The new guidelines consisted of three criteria for the determination of obscenity:

(a) whether “the average person, applying contemporary 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 state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This new standard, far from solving the previous problems, exacerbated them by expanding the scope of “obscenity.” This new standard rejected the notion that a work must be utterly without redeeming social importance and instead merely required that the work lack “serious” value. Given the problematic nature of determining the value of a literary, artistic, political, or scientific work, this new criterion, just as the old, demanded that judges function as critics, assess the value of a work and rule against it if they do not see the serious value in it. Judges had to function as aesthetes. As Justice Antonin Scalia would later remark:

[I]n my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value. . . . Since ratiocination has little to do with esthetics, the fabled “reasonable man” is of little help in the inquiry, and would have to be replaced with, perhaps, the “man of tolerably good taste” – a description that betrays the lack of an ascertainable standard.
¹⁴

We ought to be wary of handing over our right as mature adults to discern what is and is not of value to a committee of judges.

In response to
Miller
, Justice Brennan, who had previously been the author of the court’s obscenity standards, had a change of heart. In his dissent in
Paris Adult Theatre I v. Slayton
, Brennan emphasizes several problems with obscenity standards in general and the new
Miller
standards in particular. First, he claims that this new standard, particularly the claim that a work merely needs to be shown to lack “serious” value, causes the statute to be over-broad, that is, it includes too much speech and so suppresses a great deal of what ought to be protected expres-sion.
¹⁵
This is due to the fact that “none of the available formulas . . . can reduce the vagueness to a tolerable level.”
¹⁶
These standards fail “to provide adequate notice to persons who are engaged in the type of conduct the statute could be thought to proscribe . . . [and invite] arbitrary and erratic enforcement of the law . . . [thus] . . . in absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort.”
¹⁷
The problems inherent in regulating obscene speech and the potential abuses and negative repercussions of doing so poorly should not be tolerated, barring some weighty countervailing interest. However, Brennan and the other dissenters were in the minority. Although historically the courts have dealt with pornography only insofar as it fell within a narrower definition of obscenity, there has recently been a movement towards the legal proscription of pornography itself. It is towards this trend that we now turn.