The Issue of Obscenity: Arguments on Pornography
Laura J. Mueller
While obscenity might be treated delicately by some, the topic is continuously prevalent in today’s court system. The access provided by the Internet to controversial material only serves to perpetuate the age old conflict between restriction of obscene materials and the freedom of speech guaranteed by the First Amendment. In order to better understand current rulings on pornography and obscenity, one must first analyze the historical rulings of the Supreme Court. Through analysis of various historical court cases, past attempts to define “obscenity”, and arguments for and against the restriction of pornography in society, one can make an educated attempt to evaluate past decisions by the Supreme Court. Taking into account the aforementioned factors, the intrinsic vagueness of the term “obscenity”, and the rights given by the First Amendment, it is apparent that the Supreme Court’s past rulings on the topic have been unconstitutional and ill-informed.
The issue of pornography, obscenity, and sexually explicit material has been an area of much contention for most of civilized history. Religions, for example, have historically taken action to define explicit sexuality as immoral, and governments, too, have recently begun to take a stance on the issue. However, the restrictions the United States government puts on the distribution of sexual material seems at odds with the First Amendment of the Constitution, which guarantees as a basic right freedom of religion, speech, press, and assembly. This tension has only appeared in courts within the past 80 years and as a relatively new predicament the courts’ rulings have been inconsistent (O’Neil 4). Pornography is one facet of obscenity that is debated more frequently and more passionately than most. Aside from controversial Supreme Court rulings on the topic, there are also arguments for and against the harm pornography does to individuals and society. In order to judge whether or not the Supreme Court has fairly ruled in historic cases, one must look at these arguments and decide what obscenity really is, and whether pornography is actually harmful. In the course of such an analysis, it seems that in the past the Supreme Court’s rulings against the distribution of pornography have been unconstitutional and ill-informed.
To begin with, one must decide what obscenity means before one can decide whether it is protected by the First Amendment, and whether pornography is obscene. Haskins, Patzke, and Price wrote that the “[l]ack of clear definitions, lack of adequate and consistently applied criteria, and lack of uniform interpretation of the term obscenity appear to plague the issue of obscenity,” (45). Looking to the past and to the future, their statement still remains true. Investigations into the true definitions of obscenity or pornography can give no closer approximation of the meanings now than they did in the past. Goodman writes of a committee comprised of six panelists who endeavored to define pornography. They all had various opinions of the meaning of the term. Al Goldstein, publisher of Screw magazine, stated, “I don’t know what pornography is. I haven’t a clue,” whereas Susan Brownmiller, author of Against Our Will, confidently stated that pornography is, “‘anti-female propaganda’”. Goldstein refuted her conservative and combative stance with the statement that pornography is fluid; “‘[t]oday’s pornography is tomorrow’s eroticism’” (Goodman 21C). This confusion over the true definition of pornography is nothing recent; even Supreme Court justices have trouble defining it. In the 1964 case Jacobellis v. Ohio, Justice Potter Stewart famously announced that hard-core pornography was hard to define, but he would know it when he saw it. Such a definition, however, leaves obscenity and pornography open to subjectivity, and therefore easy to prosecute depending on the whims of the court system. Hawkins and Zimring adequately summarize such a sentiment by stating, “Even if all know it when they see it and are united in agreeing that it should be suppressed, how do we know that the agreement is not totally illusory?” (20). In other words, in order to have fair rulings concerning such a topic, it needs an objective definition.
There have been three separate commissions charged with defining pornography once and for all. The first such commission was the 1970 Johnson Commission, which found that the word “pornography” was not used descriptively, had no legal significance, denotes subjectivity, and that the word “obscenity” was merely a legal word used to refer to something sexually explicit and legally restricted (Hawkins and Zimring 21-22). The second commission, the Williams Commission of 1979, found that “obscene” was a word expressing disgust or repulsion, and ruled that the word was no longer useful in court (22-23). The third and final commission was equally unhelpful; the Meese Commission of 1986 simply stated that “obscene” material was material which could be prosecuted without offending an authoritative interpretation of the Constitution (23-24). Each commission had different findings concerning the words “obscene” and “pornography” and in their various results has proved that the words are indeed well nigh impossible to universally define. Hawkins and Zimring also address the ways in which a Western democracy chooses to handle the issue of pornography, and what the overwhelming concern is that so represses it:
It seems clear that however a liberal Western democracy may decide to deal with pornography, any modern secular government will seek to permit sexually explicit communication to adults on the same basis it permits communication about a wide variety of topics. What seems to be of special concern to governments and communities is a combination of sexually explicit content and sexual provocation, arousal, or excitation of an audience, from which it is assumed sexual activity will follow. (27)
It is not the content of the literature that is so disturbing to a community or nation, but the results that content is accused of causing.
Helen Longino is a well-known expert on the effects of pornography who focuses on the results, rather than the content, of pornography. She argues that pornography is immoral because it is harmful. She attempts to define pornography, using a quote from the Commission on Obscenity and Pornography, claming it is “…verbal or pictorial explicit representations of sexual behavior that…have as a distinguishing characteristic ‘the degrading and demeaning portrayal of the role and status of the human female…as a mere sexual object to be exploited and manipulated sexually,’” (67). By allowing the production and distribution of pornography to remain legal, the nation shows an approval of immoral sexual behavior that is physically and/or psychologically violating the personhood of a participant. Longino asserts that the content is not the issue; the degradation of women is the problem with pornography (68). She goes further to show that there are three main ways in which pornography is harmful: It is implicated in the crimes committed against women; it is defamatory and libelous against women; and it supports male-centered attitudes and enforces sexual exploitation and oppression (73).
Longino’s argument also addresses objections to her contention to restrict or completely ban pornography. Opponents often argue using the First Amendment as their support; Longino acknowledges and refutes these arguments. She identifies three main criticisms. The first criticism is that banning pornography is an unjustifiable invasion of privacy. She replies, stating that the open commerce of pornography occurs in the public sphere, and therefore is not protected by privacy rights. Public activity, she contends, is not protected in by the same rights that envelope the private sphere. She elaborates,
I may entertain, in the privacy of my mind, defamatory opinions about another person, even though I may not broadcast them. So one might create without restraint—as long as no one were harmed in the course of preparing them—pornographic materials for one’s personal use, but be restrained from reproducing and distributing them. (74)
While it is generally true that one may not publicly broadcast defamatory remarks about another individual without facing a lawsuit, politicians do this very thing in their campaigns. So, while one might have to face the consequences of spreading defamatory opinions, it is not illegal to do so. Defamatory means insulting or offensive, which is different from libel; one is true—though insulting—information or a negative spin on information in order to make it offensive, and another is outright falsehood.
Longino also has a few interesting remarks on the First Amendment in regards to her responses to objections. The second objection, for example, is that production and distribution is protected by the First Amendment. The third objection is that censorship of pornography is just another step closer to censorship on all disruptive material, including political censorship. Longino states at first that not all forms of speech are protected by the First Amendment; court rulings have declared that perjury and libel are illegal. Pornography is libelous speech and should therefore be illegal. She then presents a step by step argument on why the First Amendment is not, in fact, a fundamental right that guarantees free speech.
She first asserts a claim that none would refute; that is, the Bill of Rights was formed to protect citizens from state powers. In regards to liberty, there are two ways in which to interpret it. The first is that liberty means license to be free of legal constraints; the second is that is means status as independent and equal. If liberty were to be interpreted in the first way, the freedom of speech would be a fundamental right, and citizens would be free of legal constraints concerning speech. However, liberty does not mean freedom from legality; the First Amendment does not protect this sort of license; there exist “legal constraints on liberty as license when we enact laws against rape, murder, assault, theft, etc,” (75). Liberty, therefore, must be interpreted as status as independent and equal. With this connotation of liberty, freedom is speech is not fundamental but a derivative of the basic right to independence—freedom to participate as an equal in determining how one will be governed. Therefore, freedom of speech is only applicable as the right to criticize the government, to protect a citizen against the abuse of power (76).
Longino’s arguments, though lengthy, are important in understanding the First Amendment and pornography. If pornography is harmful, should it be banned or restricted? This seems to fall back to the Hicklin principle, which as defined in the 1973 Paris Adults Theatre v. Slaton case states that the government has the duty to protect the weak of mind and young from harmful material. If pornography is not harmful, then it is only being ruled against because of its potentially offensive nature; restricting material due to its potential to be offensive is extremely dangerous. In addition, her arguments on the application of the First Amendment are controversial and dangerous. Longino seems to believe that speech should only be completely free is it is used to criticize the government. The First Amendment, however, does not include that clause.
As previously mentioned, a large part of Longino’s argument is that pornography leads to crimes against women. This fear of pornography causing crimes is a concern that many have, and one reason courts have in the past ruled against its distribution. Joel Feinberg addresses Longino’s argument and quickly refutes it. He contends that there is no evidence linking pornography with crimes. In countries such as Ireland and South Africa there is virtually no production or distribution of pornography, but extremely high rates of violence against women, whereas in the Netherlands and Denmark, where there is a surplus of pornography, there are very little misogynistic crimes (85). Rather than pornography being the main source of violence, Feinberg blames the “cult of macho”. The macho man is the typical description of a “man’s man”—a hard drinking, tough, unemotional man with great sexual prowess (86). The “macho man” is the type of man who is the rapist, the misogynist, the beater of women. The average man who watches violent pornography will not suddenly commit rape just because he watches a certain type of pornography. The macho man, however, is the type of man who has the value system that permits him to permit rape. The violent pornography in question appeals to him, but even without a supply of pornography he would still have the rapist tendencies. Feinberg states, “…pornography-reading machos commit rape, but that is because they already have the macho values, not because they read the violent pornography that panders to them,” (87). Longino claims that pornography causes men to become rapists and misogynists; Feinberg claims that pornography only appeals to a type of man that exists with or without it.
Longino and Feinberg are in effect operating from two different models of communication, which are key factors in determining whether or not pornography and obscenity cause immorality in viewers. Haskins, et al., denotes two types of communication: linear and transactional. The linear model identifies the speaker as the sender of a message, received by a passive listener. The listener does nothing to give meaning to the message, and the content is therefore the responsibility of the speaker (38). A person with views similar to Longino’s would be influenced by this communication model. The sender, or the distributor of pornography, carries all the blame for the message being sent. The listener, or the viewer of pornography, is an innocent bystander who is thus influenced by the content contained within the message. Feinberg’s view, however, would fall under the transactional view. The transactional view understands communication as being a simultaneous interaction between the sender and the receiver. The receiver is active in giving meaning to the message. This model takes into account that there are factors other than the message from the speaker that influences the receiver. The authors explain, stating that, “[s]emantics, gender, body language, and environmental factors are but some of the components that can ‘open-up’ or ‘close’ channels of communication between people,” (39). Therefore, if one were viewing violent pornography, one would not immediately become a rapist just because that is what the message seems to be. Rather, background, moral values, religious beliefs, childhood experiences, and many other factors determine how the viewer will interpret and react to the message being sent. The transactional model of communication assigns responsibility to both the sender and the receiver.
These models of communication and the evaluations of them create much confusion in court. Using the linear model, obscenity is easily defined and punished. Using the transactional model, however, obscenity is more difficult to identify and punish (Haskins, et al. 46). When using the linear model, speech can be easily restricted, as has historically happened in many court cases. There are several important court cases that have helped to set the standards for rulings on obscenity. In each of these cases, the ruling has been against the distributor of the material in question. These rulings, however, stemmed from a linear view of communication, and therefore should in fact have been in favor rather than against the issuing of pornography or obscene materials.
The 1957 case of Roth v. United States is one of the earliest cases dealing with this issue. Roth was a businessman in New York who published and sold books, photographs, and magazines containing sexually explicit materials. He used circulars to advertise his enterprise, and was charged by the district court for mailing obscene circulars and newsletters, which violated the federal obscenity statute. The case was brought to the Supreme Court and Roth was ruled against. Justice Brennan delivered the opinion of the court that obscenity is not protected by the First Amendment. He stated, “The protection given speech and press was fashioned to assure unfettered interchange or ideas for the bringing about of political and social change desired by the people,” (484). The First Amendment was not intended to protect everything; the federal obscenity statute is not unconstitutional in its attempt to ban obscene materials from being distributed in such a way. Brennan went on to state,
All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because the encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. (484)
Brennan distinguished between sex and obscenity, saying that obscenity appeals to prurient interests, whereas at times sex can be featured in literature and art without doing so. Material can be judged as obscene if the average person applying contemporary standards finds the theme of the material as a whole as applying to the baser, prurient, interests.
Brennan’s findings are reminiscent of Longino’s arguments—one can now see from where she draws her viewpoint. However, if one found Longino’s assertion that the First Amendment only protects those criticizing the government or bringing about social or political change to be disturbing, then one might find Brennan’s contention even more so. For, while Longino is influential in her own way, Brennan was a Supreme Court justice who helped shape the application of the law. Fortunately, though, not all of the justices agreed with Brennan’s deliverance.
Harlan and Douglas both had important dissenting points. Harlan claimed that while the state can suppress material or expression, the federal government cannot; the states can each apply their own standards but such an application cannot occur on a national level. The problem of obscenity, said Harlan, cannot be generalized, but must be examined on a case by case basis. He stated that the court cannot solve such problems without imposing its own judgment on the character of the material, and that “if ‘obscenity’ is to be suppressed, the…question whether a particular work is of that character involves not really an issue of fact, but a question of constitutional judgment of the most sensitive and delicate kind,” (498). In other words, each decision on obscenity is based on the court’s interpretation of the character of the material, not on any sort of formal or objective fact. Harlan described the rulings against Roth, maintaining that “[i]n the final analysis, the problem presented by these case is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their…nature or supposed deleterious effect upon human conduct,” (496).
Douglas elaborated on this statement; he claimed that the court’s ruling against Roth made “the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader,” (508). By doing this, the court inflicted punishment based on thoughts and not on actual conduct. He stated that the court punished Roth for arousing sexual thoughts with his material, but that sexual thoughts occur in the human mind on a daily basis. Allowing the state to limit of censor words that a judge or jury thinks has a negative impact curtails the First Amendment. Douglas strongly stated,
Government should be concerned with anti-social conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. (513)
Such a view falls in line with the transactional model of communication. The actions, and not the thoughts, are what should be examined; there is no link to show that viewing obscene literature causes one to act in immoral ways. Ruling on the basis of thoughts caused is dangerous indeed; the jury or judge cannot truly know what sorts of thought arise in an individual’s mind, and applying law on the basis of conjecture is treading on dangerous territory.
The 1973 cases of Paris Adult Theatre v. Slaton and Miller v. California were also highly influential in the court’s view on pornography and obscenity. The court in the Miller case decided once again the obscenity was outside of the protection of the First Amendment, but, more importantly, the justices distinguished three criteria that determine whether or not material is obscene. The first guideline is that material is obscene if the average person, applying contemporary community standards, finds it to be sexually offensive. Additionally, something can be ruled as obscene if it describes or depicts offensive material applicable by state law; that is, if the state has a law against a certain type of offensive material and the literature in question contains such offensive content. The third and final guideline is if the works as a whole lack serious literary, political, or artistic value.
These guidelines were also applied in the Paris case. In Paris, the town of Slaton in Georgia sued the theatre for showing an obscene film. The case was brought to the Supreme Court and the court ruled against Paris 5-4 on the basis that obscene material is not protected by the First Amendment, and that states are allowed to regulate the exhibition of obscene material. Douglas, once again, was of the dissenting viewpoint. He stated that tastes are not reducible to specific definitions, and obscenity is all a matter of taste. Douglas defended the freedom to issue obscenity, saying, that “our society—unlike most in the world—presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world,” (73). Obscenity should not be defined by a set of guidelines, because each individual views the content of material differently.
Such rulings are still applicable even thirty or fifty years later, as is shown in the 2004 case of Ashcroft v. American Civil Liberties Union. In 1996 the Communications Decency Act (CDA) was formed, which prohibited the knowing transaction of obscene messages to children under 18 via the Internet. In the case of Reno v. American Civil Liberties Union the CDA was declared unconstitutional, because it also restricted or suppressed speech that adults had a right to send and receive. To replace the CDA, Congress created the Child Online Protection Act (COPA). COPA defined as obscene the same criteria as Miller, only they applied the situation to minors. Therefore, obscene material was illegal if the average person, applying community standards, found it to appeal to prurient interests, if the material lacked any serious political, artistic, or literary value, and if the material was offensive in respect to minors. The American Civil Liberties Union filed a lawsuit claiming that COPA was unconstitutional. The motivation for this action was that various organizations, each operating its own income-generating website, featured content that they feared would be seen as harmful to minors. The district court ruled in favor of the American Civil Liberties Union, and the case was brought before the Court of Appeals. Since COPA was still relying on the application of community standards to rule content as obscene, the Court of Appeals also ruled in favor of the American Civil Liberties Union, stating that community standards to not apply to the Internet because web publishers cannot control the geographical location of the browsers. It then came into question as to whether or not COPA was constitutionally unsound for its reliance on non-applicable standards.
The case was finally brought to the Supreme Court by Attorney General Ashcroft. Justice Thomas delivered the court’s opinion, which overturned both the district and appellate courts’ rulings. Thomas stated that “COPA’s reliance on community standards to identify material that is harmful to minors does not by itself render the statute substantially overbroad for the purposes of the First Amendment.” In other words, COPA is constitutionally sound. Stevens, however, delivered a dissenting viewpoint. He asserted that allowing community standards on the Internet not only shields those with such standards but eradicates the material completely, depriving other viewers of the content. He maintained that “[a]s a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech.” When dealing with something as expansive as the Internet, the community values for one area become the community values for all areas if they are allowed to dictate content; this is what Harlan feared when he spoke on generalizing obscenity in the Roth case.
Historically, the Supreme Court has made its rulings against pornography and obscenity; it has stated that such materials are not protected by the First Amendment. One must question, however, why such content is not protected. Longino and Feinberg present the most compelling arguments for and against the harm supposedly caused by pornography. While there are suspicions that pornography is harmful, however, there is no concrete proof to support the claim. Furthermore, by operating from a linear model of communication—and it seems that those who rule against pornography do—one almost completely discredits the intellect of the recipient by making the listener an empty vessel who holds without interpreting information. If the First Amendment is to truly grant American freedom of speech, then even upsetting or offensive material, such as pornography, must be allowed. Parents, guardians, and citizens in general have valid concerns for children being exposed to obscene materials, but the banning of such material can be just as harmful. Children, in fact, might have a real interest in accessing material that adults restrict. For example, banning “alt.sex” newsgroups online also bans “alt.sex.safe” and “alt.sex.abstinence” (Cate 87).
Considering the fact that obscenity cannot even be assigned a solid definition, and that contemporary community standards fluctuate as time moves forward, it seems that by restricting, banning, or suppressing obscene material the court has acted inconsistently, if not wrongly. The Supreme Court rulings on obscenity cases rely completely on the judges’ current feelings on and interpretations of the issue, as well as their projections on the thoughts caused by the materials in question. Such a method of ruling is indeed not only inconsistent but dangerous as well.
Ashcroft v. Am. Civil Liberties Union, 322 F.3d 240 (2002).
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Paris Adult Theatre I v. Slaton, 413 US 49 (1973).
Roth v. United States, 138 Cal. App. 2d Supp. 909, 292 P.2d 90 (1957).