OBSCENITY

The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness.

Obscenity is a legal term that applies to anything offensive to morals and is often equated with the term pornography. Pornography, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings. Obscenity includes pornography, but may also include nude dancing, sexually oriented commercial telephone messages, and scatological comedy routines. U.S. courts have had a difficult time determining what is obscene. This problem has serious implications, because if an act or an item is deemed obscene, it is not protected by the first amendment.

Until the mid-nineteenth century and the Victorian era in Great Britain and the United States, sexually explicit material was not subject to statutory prohibition. The federal comstock law of 1873 criminalized the transmission and receipt of "obscene", "lewd", or "lascivious" publications through the U.S. mail. U.S. courts looked to the English case of Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868), for a legal definition of obscenity. The Hicklin test was "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

This test permitted judges to look at objectionable words or passages without regard for the work as a whole and without respect to any artistic, literary, or scientific value the work might have. In 1930, Massachusetts courts declared both Theodore Dreiser's novel An American Tragedy and D.H. Lawrence's novel Lady Chatterly's Lover obscene. An important break from Hicklin came in a lawsuit over the U.S. publication of James Joyce's novel Ulysses. Both at the trial and appellate levels, the federal courts held that the book was not obscene (United States v. One Book Called "Ulysses", 5 F. Supp. 182 [S.D.N.Y. 1933], aff'd 72 F.2d 705 [2d Cir. 1934]). The courts rejected the Hicklin test and suggested a standard based on the effect on the average reader of the dominant theme of the work as a whole.

In 1957, the U.S. Supreme Court retired the Hicklin test in roth v. united states, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. Justice william j. brennan jr. stated that obscenity is "utterly without redeeming social importance" and therefore was not protected by the First Amendment. He announced, as a new test, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The new test was applicable to every level of government in the United States.

The Roth test proved difficult to use because every term in it eluded a conclusive definition. The Supreme Court justices could not fully agree what constituted "prurient interest" or what "redeeming social importance" meant. Justice potter stewart expressed this difficulty at defining obscenity when he remarked, "I know it when I see it" (Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 [1964]).

The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the bawdy English novel Fanny Hill. In Memoir v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be "utterly without redeeming social value", and "patently offensive because it affronts contemporary community standards relating to the description of sexual matters." The requirement that the material be "utterly" without value made prosecution difficult. Defendants presented expert witnesses, such as well-known authors, critics, or scholars, who attested to the literary and artistic value of sexually charged books and films.

The Supreme Court did make conclusive rulings on two other areas of obscenity in the 1960s. In Ginzburg v. United States, 383 U.S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31 (1966), the Court held that "pandering" of material by mailed advertisements, designed to appeal to a prurient interest, could be prosecuted under the federal obscenity statute. Even if the material in publisher Ralph Ginzburg's Eros magazine was not obscene, the Court was willing to allow the government to punish Ginzburg for appealing to his prospective subscribers' prurient interest. In Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), the Court held that the First and Fourteenth Amendments prohibited making the private possession of obscene material a crime.

The failure of the warren court to achieve consensus over the Roth test kept the definition of obscenity in limbo. Then, in 1973, aided by conservative justices lewis f. powell jr. and william h. rehnquist, Chief Justice warren earl burger restated the constitutional definition of obscenity in miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419. Burger explicitly rejected the "utterly without redeeming social value" standard:

The basic guidelines for the trier of fact must be (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 state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Burger noted that the new test was intended to address "'hard core' sexual conduct", which included "patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated … masturbation, excretory functions, and lewd exhibitions of genitals."

In 1987, the Supreme Court modified the "contemporary community standards" criteria. In Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95 L. Ed. 2d 439, the Court stated that the "proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, and scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." It is unclear whether the "reasonable person" standard represents a liberalization of the obscenity test.

In 1989, the Supreme Court unanimously held that the First Amendment's guarantee of free speech protected indecent, sexually explicit telephone messages (Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 109 S. Ct. 2829, 106 L. Ed. 2d 93). The Court ruled that a federal law that attempted to ban "Dial-a-Porn" commercial phone services over interstate telephone lines (Pub. L. No. 100-297, 102 Stat. 424) to shield minors from obscenity was unconstitutional because it applied to indecent as well as obscene speech. The Court indicated, however, that obscene calls could be prohibited.

Congressional attempts to prevent the internet from being used to distribute obscene materials have been blocked by Supreme Court decisions. The Communications Decency Act of 1996 (CDA), codified at 47 U.S.C.A. § 223(b), as amended, 47 U.S.C.A. § 223(b), was designed to outlaw obscene and indecent sexual material in cyberspace. One section made it a federal crime to use telecommunications to transmit "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication."

The american civil liberties union (ACLU) and 20 other plaintiffs immediately filed a lawsuit challenging the constitutionality of the CDA's provisions, especially the part of the CDA that dealt with indecent material. In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court recognized the "legitimacy and importance of the congressional goal of protecting children from harmful materials", but ruled that the CDA abridged freedom of speech and therefore was unconstitutional. The Court was most troubled by the CDA's "many ambiguities." The concern, in particular, was that the act's undefined terms indecent and patently offensive would provoke uncertainty as to how the two standards relate to each other

and just what they mean. The vagueness of this content-based regulation, along with its criminal penalties, led the Court to conclude that the CDA would have a "chilling effect" on free speech.

In addition, the CDA did not deal with key parts of the Miller test. One element from Miller, which was missing from the CDA, requires that the proscribed material must be "specifically defined by the applicable state law." This, in the Court's view, would have reduced the vagueness of the term "patently offensive." Another important element of the Miller test is the requirement that the material, "taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court found that this "societal value" requirement allowed appellate courts "to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value." The failure of the CDA to include this element meant that the law posed a serious threat to censor speech that was outside the statute's scope.

Congress sought to address these deficiencies, in 1998, when it passed the Child Online Protection Act (COPA). COPA attempted to limit restrictions on pornographic material to communications made for commercial purposes. Although Congress incorporated the Miller test in hopes that the law would pass constitutional muster, the ACLU and a group of on-line website operators challenged the constitutionality of COPA, arguing that it was overbroad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA. The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002), issued what many legal commentators considered to be a murky decision that suggested the law might be overbroad. It referred the case back to the district court for a full hearing on the merits of the case.

Obscenity challenges are not restricted to pornographic content. In City of Erie v. Pap's A. M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the Supreme Court moved from cyberspace to real estate when it held that a city could prevent the location of a nude dancing club using its zoning law powers. The Court ruled that the zoning ordinance did not violate the First Amendment because the government sought to prevent the means of the expression and not the expression itself.

In 1994, Erie, Pennsylvania, enacted an ordinance that made it a crime to knowingly or intentionally appear in public in a "state of nudity." The Court held that nude dancing is "expressive conduct" that "falls only within the outer ambit" of First Amendment protection. It based its analysis on the framework for content-neutral restrictions on symbolic speech set forth in the draft registration card case, United States v. O'Brien, 391 U.S. 367, 88 S. Ct.1673, 20 L. Ed. 2d 672 (1968). The first factor of the O'Brien test is whether the government regulation is within the constitutional power of the government to enact. The Court concluded that Erie had the power to protect public health and safety. The second factor is whether the regulation furthers an important or substantial government interest. The city based its ban on public nudity as a way of combating the harmful secondary effects associated with nude dancing. The preamble to the ordinance stated that Erie City Council had, for over 100 years, expressed "its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity." The Supreme Court found this an important government interest. The ordinance also satisfied O'Brien's third factor, that the government interest is unrelated to the suppression of free expression.

Assessing whether an activity or object is obscene based on community standards is problematic, especially when community values change over time. For example, in the case of the "cussin' canoeist", a Michigan man was convicted, in 1999, for violating an 1897 state law making it illegal to use obscenities and profanities while in public. He had been cited for loudly swearing while in a canoe on a public stream. However, the Michigan court of appeals reversed his conviction in 2002. The court struck down the nineteenth-century statute, ruling that the law unquestionably "operates to inhibit the exercise of First Amendment Rights" (Michigan v. Boomer, 250 Mich. App. 534, 655 N.W.2d 255 [Mich.App.2002]).

Another sticking point in obscenity prosecutions involves the often overbroad interpretation of what is obscene. In recent years, state appellate courts have struck down laws that made it criminally obscene for a parent to photograph his or her own child playing in a bathtub or running nude on a beach.

further readings

Harrison, Maureen, and Steve Gilbert, eds. 2000. Obscenity and Pornography Decisions of the United States Supreme Court. Carlsbad, Calif.: Excellent Books.

Hixson, Richard F. 1996. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois Univ. Press.

Mackey, Thomas C. 2002. Pornography on Trial: A Reference Handbook. Santa Barbara, Calif.: ABC-CLIO.

cross-references

Censorship; Dworkin, Andrea; Federal Communications Commission; Freedom of Speech; MacKinnon, Catharine Alice; Mass Communications Law; Movie Rating; Theaters and Shows; X Rating.

Obscene

In contemporary English the word obscene has connotations of strong disapproval, even disgust. For some, any depiction of sexual activity or the sex organs is by definition pornographic, for others it is a legitimate, morally neutral branch of art, "erotic" art. In this entry the term is construed to refer to all sexual acts, gestures, and exposures that for most of European medieval and post-medieval history have been perceived or received as offensive (scatological obscenity is beyond the purview of this entry). However, the notion of obscenity is culturally relative, and chronologically relative even within the same culture: autres temps, autres mœurs.

DEFINITION AND PURPOSE OF OBSCENITY

According to the Oxford English Dictionary, when the traveler John Fryer visited a Hindu temple in Madras in the 1670s, his reaction to the erotic figures carved there was predictable: "On the Walls of good Sculpture were obscene Images, where Aretine might have furnished his Fancy for his Bawdy Postures." This may have been the era of Rochester and the bawdy excesses of the court of Charles II, but Fryer knew obscenity when he saw it. The "Bawdy Postures" of the carved temple figures he interpreted as obscene images similar to the frankly pornographic and notorious modi (positions for intercourse, known in contemporary English as the Postures) engraved by Raimondi to illustrate Aretino's sonnets, a work that was publicly burned in Venice in 1527 and became synonymous with sexual obscenity for the early modern English.

In Adam de la Halle's thirteenth-century play, Le Jeu de Robin et de Marion, searching for some means of entertaining themselves, one of the adult actors asks, "Faisons un pet pour nous esbatre?" (Shall we fart to amuse ourselves?) a suggestion accepted with, we may think, surprising alacrity. Obscenity cannot be accidental but must be intentional—by which definition, neither of these instances qualifies as obscene: the offense taken by Fryer was certainly accidental—contemporary Indians would not have been offended—and the medieval French farters entered into their game without giving it a second thought.

However, it is in this very propensity to offend that the power of the obscene lies. When obscenity is not accidental but ostentatious, what is its function? One obvious function is to promote sexual arousal regardless of whether such art or writing is labeled pornographic or erotic. Such deliberate incitement began in postclassical times with the Aretino/Raimondi I Modi (Lawner 1988) and continues in the present era via "girlie" magazines and Internet porn sites.

PORNOGRAPHY IN THE RENAISSANCE AND THE SEVENTEENTH CENTURY

During the Restoration period English travelers abroad were expected to bring back Continental pornography. "A Stranger [who] discourseth with a Roman Book seller" in Torriano's Italian-English phrase book of 1666, eager to buy a copy of Aretino, is told that "they are forbidden, both the Postures [I Modi] and the Discourses [Ragionamenti], that imbracing of men and women together in unusual manners." In Vanbrugh's The Country Wife (1675), having just returned from France, Horner significantly protests, "I have brought over not so much as a Bawdy Picture, new Postures nor the second part of the Escholle des Filles." In the same year a group of Oxford undergraduates was discovered trying to run off copies of these same Postures on the Clarendon Press clandestinely at night.

Horner's Escholle des Filles was first published in Paris in 1655 (and unillustrated); a generation later it was translated into English and published anonymously as The School of Venus (1680). Opposite the title page of the only extant copy is an etched frontispiece that depicts a modestly dressed woman standing behind a booth selling dildos. Images of dildo sellers are also to be found on a German fifteenth-century biscuit mold, and a sixteenth-century Flemish game sheet, and one such salesman features significantly in a twelfth-century Latin comedy, the Alda.

In Histriomastix (1633) two of the many evils William Prynne inveighed against were "the obscene jests of Stage-players and obscene pictures." Puritans such as Prynne had time and censorship on their side. Material of this nature is peculiarly prone to censorship, especially censorship by destruction: L'Escholle des Filles, for example, was read in the original language by Samuel Pepys in 1668 but then burned so "that it might not be among my books to my shame."

One has to be suspicious of the popularity of images of Lucretia's suicide in the inventory of King Henry VIII, as that subject allowed the artist to display the naked female bosom under the guise of exemplary chastity. One cannot help suspecting that there is some sadoerotic frisson here, as well as in some of the many images of Phyllis riding Aristotle. Similarly, the ostensibly biblical subject of Bathsheba bathing afforded male viewers the same voyeuristic pleasure in spying on the naked female body that King David was unable to resist; so too the subject of Susanna and the Elders. All these female nudes were sanctioned by biblical or classical history: although they may look like early modern women, their historicity protected the contemporary owner of such images from the suspicion owning pornography.

Similarly, Italian Renaissance engravers produced erotic prints thinly disguised as illustrations of classical mythology, including the loves of the gods, nymphs and satyrs, and the like. However, the success of these print series led to copying in the Netherlands and Germany, particularly by the "Little Masters." The Nuremberg engraver Hans Guldenmund came to the attention of the city council in 1535 for possessing "a most shameful and sinful little book in which are many unchaste pictures of unconventional lovemaking." This sounds like a copy of Aretino's Postures.

In Ben Jonson's play The Alchemist (1610), trying to account for the visits of so many people to the alchemist's house, Lovewit opines, "Sure he has got/Some bawdy pictures to call all this ging [crowd]/ The Friar and the Nun." Protestant image makers could not resist the spectacle of monks and nuns engaged in mutual sexual activity. Among titles that appear to belong in this category, the print seller Peter Stent's 1662 advertisement included a "Friar whipping a nun." The corporal chastisement of naked or seminaked female penitents by friar confessors afforded Protestant controversialists particular satisfaction (especially in connxion with the scandal of Brother Cornelius of Dort), and provided a convenient excuse for the Protestant amateur of pornography, who could claim to possess such voyeuristic scenes of flagellation and female nudity merely as proof of the debauchery of the Roman church and its practices.

In the same "incidental" way explicit sexuality was used as a device to smear other religious denominations or factions in the seventeenth-century Civil War era in England, but such sexual "cartoons" have always been employed to denigrate one's opponents, whether religious or political, as in the many scurrilous drawings and prints attacking Marie Antoinette during the era of the French Revolution. This satirical function has always been one of the most important uses of obscenity in European culture.

OBSCENE NAMES

The use of obscene names for places, people, and things in the medieval and early modern eras is another area of the obscene that is at odds with modern sensibilities. In 1658, for instance, while discussing the earwig, an entomologist noted that the "Northern English by an obscene name call it Twich-ballock" (Oxford English Dictionary), though it was more commonly plants that were given such sexual names. Ophelia noted that to the wild orchids known as "long purples … liberal shepherds give a grosser name," for just as the generic name derives from the Greek orchis ("testicle"), the same visual resemblance was noted in the vernacular, and one such name Elizabethan shepherds might have used was fooles ballockes.

Highly obscene personal nicknames were in routine use in late medieval Europe and provide invaluable—often the earliest—evidence for the vernacular sexual lexicon. Interpreting such names is fraught with danger, but the perennial male concern with penis size would appear to be reflected in the English Langgeters (i.e., "long tarse" ["penis"]) and the precisely cognate late medieval German Langzers. Tax rolls from the decades around 1300 record names such as Jehan Fout-en-Paille, Roger Gildynballokes, John Swetpintel, Richard Twychecunt, Bele Wydecunthe, and Jehan Con-doré.

PHALLIC AND PUBIC IMAGES

Such names may be either admiring or insulting but certainly are comic, for obscenity can also be humorous; indeed, the capacity of the obscene to raise a laugh, to "divert," is intimately related to what may arguably be its most important function:, defense against harm, an apotropaion (charm) that will divert the anonymous malignity of the Evil Eye.

Recent decades have seen the publication of hundreds of bizarre small lead badges of late medieval date in the form of ambulant and often winged phalluses, similarly animated vulvas, couples copulating, and so on. The strongly represented phallic presence in this corpus seems to confirm suggestions that these badges are rooted in the tradition of late Roman iconography, embodying precisely that combination of bizarrerie and visceral shock that Plutarch declared was the perfect antidote to the Evil Eye. The exposure of the sexual organs functions as a protective shock tactic, whether on the public monumental scale of the numerous female exhibitionist sheelagh-na-gig sculptures set into the exteriors of churches and over municipal gateways, or on the private miniature scale of these badges. Such artifactual literal dismemberment is paralleled in literary works such as Claude Chappuys's Blason du Con, Dafydd ap Gwilym's Cywydd y Gâl, and Gwerful Mechain's answering cywydd in praise of the vagina.

In earlier eras it was male fashion that would be considered obscene by modern commentators, especially the increasingly obvious—and increasingly stuffed—codpiece (derided by Rabelais as hypocriticques braguettes). Long before Sigmund Freud identified thrusting weapons as phallic symbols, the ballok-hefted ("testicle-handled") dagger appeared in the late middles ages; worn at the girdle, such weapons present a blatantly phallic appearance when sported by the young courtiers who surround the Duc de Berry in his Très Riches Heures, for instance.

However, images of the phallus might also be part of interior and exterior decoration in the late middle ages. When in 1551 Rabelais describes Lent daydreaming about penises flying and creeping up walls, this is not mere fantasy. Recalling the same period, Brantôme attests to the existence of such wall paintings in Spain. Recently a thirteenth-century mural of a phallus tree resurfaced in Massa Marittima, joining one in the Tirolean Schloss Lichtenberg. The phallus tree was also visible at carnival: at Nördlingen in 1510 a branch bearing phallus fruit was carried around the town, and a late fifteenth-century German drawing of such a tree survives in Istanbul.

Fashions in obscenity come and go. A British court ruling of 1969 that pubic hair was not obscene led directly to a crop of self-styled "beaver movies," yet a depiction of the trimming of female pubic hair appeared as the subject of a statue situated over the Porta Tosa in twelfth-century Milan; there could hardly be a more public venue. An early sixteenth-century woodcut print by Floetner depicts a woman performing this intimate form of grooming, and a thirteenth-century Parisian street was named the Rue de Poile-Con (Cunt-Trimming Street) now euphemised as the Rue de Pélican (Pelican Street). There are similarly several minor Middle English place names that appear to recall this same aspect of feminine toilet: a spring named Shavecuntewelle is attested in Kent, and a Swylcontdich (Swill-cunt-ditch) in Cheshire in 1396.

The ability raser et tondre maujoint (to shave and clip the cunt) is one of the numerous talents of the eponymous Varlet à Louer (servant for hire), as it is of the related Chambrière à tout faire (maid-of-all-work), who is also required raser et tondre le cas, and the practice is frequently referred to in other French comic literature around 1500. Brantôme similarly devotes considerable space to fashions in female pubic hair in the French court around the middle of the sixteenth century.

see also Codpiece; Erotic Art; Folk Beliefs and Rituals; Folklore; Genitalia, as Apotropaic; Marie Antoinette; Pornography; Susanna at Her Bath; Voyeurism.

BIBLIOGRAPHY

2006. "Obscene." Oxford English Dictionary. Oxford University Press.

Bullough, Vern L., and James A. Brundage, eds. Handbook of Medieval Sexuality. New York: Garland.

Hunt, Lynne. 1993. The Invention of Pornography: Obscenity and the Origins of Modernity, 1500–1800. New York: Zone Books.

Jones, Malcolm. 2002. The Secret Middle Ages. Westport, CT: Praeger.

Lawner, Lynne, ed. and trans. 1988. I Modi: The Sixteen Pleasures: An Erotic Album of the Italian Renaissance. Evanston, IL: Northwestern University Press.

Talvacchia, Bette. 1999. Taking Positions: On the Erotic in Renaissance Culture. Princeton, NJ: Princeton University Press.

Thompson, Roger. 1979. Unfit for Modest Ears: A Study of Pornographic, Obscene and Bawdy Works Written or Published in England in the Second Half of the Seventeenth Century. London: Macmillan.

Wagner, Peter. Eros Revived: Erotica of the Enlightenment in England and America. London: Secker & Warburg.

Webb, Peter. The Erotic Arts. New York: Farrar, Strauss, Giroux.

                                                Malcolm Jones

OBSCENITY

Obscenity laws embarrass alexis de tocqueville's claim that there is "hardly a political question in the United States which does not sooner or later turn into a judicial one." It is not merely that the obscenity question became a serious judicial issue rather much later than sooner. It is that the richness of the questions involved have been lost in their translation to the judicial forum.

Obscenity laws implicate great questions of political theory including the characteristics of human nature, the relationship between law and morals, and the appropriate role of the state in a democratic society. But these questions were barely addressed when the Court first seriously considered a constitutional challenge to obscenity laws in the 1957 cases of roth v. united states and Alberts v. California.

The briefs presented the Court with profoundly different visions of first amendment law. Roth argued that no speech including obscenity could be prohibited without meeting the clear and present danger test, that a danger of lustful thoughts was not the type of evil with which a legislature could be legitimately concerned, and that no danger of antisocial conduct had been shown. On the other hand, the government urged the Court to adopt a balancing test that prominently featured a consideration of the value of the speech involved. The government tendered an illustrative hierarchy of nineteen speech categories with political, religious, economic, and scientific speech at the top; entertainment, music, and humor in the middle; and libel, obscenity, profanity, and commercial pornography at the bottom. The government's position was that the strength of public interest needed to justify speech regulation diminished as one moved down the hierarchy and increased as one moved up.

In response to these opposing contentions, the Court took a middle course. Relying on cases like beauharnais v. illinois (1952), the Court seemed to embrace what harry kalven, jr. , later called the twolevel theory of the First Amendment. Under this theory, some speech is beneath the protection of the First Amendment; only that speech within the amendment's protection is measured by the clear and present danger test. Thus some speech is at the bottom of a two-level hierarchy, and the Roth Court sought to explain why obscenity deserved basement-level nonprotection.

History, tradition, and consensus were the staple of the Court's argument. Justice william j. brennan explained that all "ideas having even the slightest redeeming social importance" deserve full First Amendment protection. But, he said, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Then he pointed to the consensus of fifty nations, forty-eight states, and twenty obscenity laws passed by the Congress from 1842 to 1956. Finally, relying on an obiter dictum from chaplinsky v. new hampshire (1942), the Court explained that obscene utterances "are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

From the perspective of liberal, conservative, or feminist values, the Court's reliance on the Chaplinsky quotation amounts to a cryptic resolution of fundamental political questions. Liberals would advance several objections. Some would suggest that the Court underestimates the contribution to truth made by sexually oriented material. David Richards, for example, has suggested that

pornography can be seen as the unique medium of a vision of sexuality … a view of sensual delight in the erotic celebration of the body, a concept of easy freedom without consequences, a fantasy of timelessly repetitive indulgence. In opposition to the Victorian view that narrowly defines proper sexual function in a rigid way that is analogous to ideas of excremental regularity and moderation, pornography builds a model of plastic variety and joyful excess in sexuality. In opposition to the sorrowing Catholic dismissal of sexuality as an unfortunate and spiritually superficial concomitant of propagation, pornography affords the alternative idea of the independent status of sexuality as a profound and shattering ecstasy [1974, p. 81].

Even some liberals might find these characterizations overwrought as applied to Samuel Roth's publications, such as Wild Passion and Wanton by Night. Nonetheless, many of them would argue that even if such publications have no merit in the marketplace of ideas, individuals should be able to decide for themselves what they want to read. Many would argue along with john stuart mill that "[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Such a principle is thought to advance the moral nature of humanity, for what distinguishes human beings from animals is the capacity to make autonomous moral judgments. From this perspective, the Roth opinion misunderstands the necessity for individual moral judgments and diminishes liberty in the name of order without a proper showing of harm.

Conservatives typically agree that humans are distinguished from animals by their capacity to make rational moral judgments. They believe, however, that liberals overestimate human rational capacity and underestimate the importance of the state in promoting a virtuous citizenry. Moreover, they insist that liberals do not sufficiently appreciate the morally corrosive effects of obscenity. From their perspective, obscenity emphasizes the base animality of our nature, reduces the spirituality of humanity to mere bodily functions, and debases civilization by transforming the private into the public. As Irving Kristol put it, "When sex is a public spectacle, a human relationship has been debased into a mere animal connection."

Feminists typically make no objection to erotic material and make no sharp separation between reason and passion. Their principal objection is to the kind of sexually oriented material that encourages male sexual excitement in the domination of women. From their perspective, a multibillion dollar industry promotes antifemale propaganda encouraging males to get, as Susan Brownmiller put it, a "sense of power from viewing females as anonymous, panting playthings, adult toys, dehumanized objects to be used, abused, broken and discarded." From the feminist perspective, the Roth opinion's reference to the interests in order and morality obscures the interest in equality for women. From the conservative perspective, the opinion is underdeveloped. From the liberal perspective, it is wrongheaded.

Liberals gained some post-Roth hope from the Court's treatment of the obscenity question in stanley v. georgia (1969). In Stanley the Court held that the possession of obscenity in the home could not be made a criminal offense without violating the First Amendment. More interesting than the holding, which has since been confined to its facts, was the Court's rationale. The Court insisted that "our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." It denied the state any power "to control the moral content of a person's thoughts." It suggested that the only interests justifying obscenity laws were that obscene material might fall into the hands of children or that it might "intrude upon the sensibilities or privacy of the general public."

Many commentators thought that Stanley would be extended to protect obscene material where precautions had been taken to avoid exposure to children or nonconsenting adults. Indeed such precautions were taken by many theaters, but the Supreme Court (the composition of which had changed significantly since Stanley) reaffirmed Roth and expanded on its rationale in Paris Adult Theatre I v. Slaton (1973).

The Court professed to "hold that there are legislative interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to the juvenile and the passerby. These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself." The Court did not suggest that the link between obscenity and sex crimes was anything other than arguable. It did insist that the "States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole … or to jeopardize, in Chief Justice Earl Warren's words, the State's "right … to maintain a decent society."

Several puzzles remain after the Court's explanation is dissected. First, "arguable" connections to crime do not ordinarily suffice to justify restrictions of First Amendment liberties. A merely arguable connection to crime supports restriction only if the speech involved is for some other reason outside FirstAmendment protection. Second, as the Court was later to recognize in young v. american mini theatres, inc. (1976), the reference to quality of life, the tone of commerce in the central cities, and the environment have force with respect to all sexually oriented bookstores and theaters whether or not they display obscene films or sell obscene books. The Court in miller v. california (1973) limited the definition of obscenity to that material which the "average person, applying contemporary community standards" would find that "taken as a whole appeals to the prurient interest" and "depicts and describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and which, "taken as a whole, lacks serious literary, artistic, political, or scientific value." No one has suggested that these restrictions on the definition bear any relationship to the tone of commerce in the cities.

Moreover, if the intrusive character of public display were the issue, mail order sales of obscene material should pass muster under the First Amendment; yet there is no indication that the Court is prepared to protect such traffic. As interpreted in the Paris Adult Theatre opinion, Stanley v. Georgia appears to protect only those obscene books and films created and enjoyed in the home; the right to use in the home amounts to no more than that. There is no right to receive obscene material—even in plain brown wrappers.

Perhaps least convincing is the Court's attempt to harmonize its Paris Adult Theatre holding with liberal thought. It claims to have no quarrel with the court's insistence in Stanley that the state is without power "to control the moral content of a person's thoughts." Because obscene material by the Court's definition lacks any serious literary, artistic, political, or scientific value, control of it is said to be "distinct from a control of reason and the intellect." But this is doubletalk. The power to decide what has serious artistic value is the power to make moral decisions. To decide that material addressing "reason" or the "intellect" is all that is important to human beings is ultimately to make a moral decision about human beings. Implicit in the latter idea, of course, is the belief that the enjoyment of erotic material for its own sake is unworthy of protection. But the view is much more general. The Court supposes that human beings have a rational side and an emotional side, that the emotional side needs to be subordinated and controlled, and that such suppression or control is vital to the moral life. That is why the Court believes that the contribution of obscenity to truth is outweighed by the state's interest in morality. The Court's insistence on the right to maintain a decent society is in fact an insistence on the state's interest in the control of the "moral content of a person's thoughts."

Finally, it is simply dazzling for the Court to suggest that the states are engaged in a "morally neutral" judgment when they decide that obscene material jeopardizes the right to maintain a decent society. When states decide that "a sensitive key relationship of human existence, central to family life, community welfare, and the development of human personality can be debased and distorted by commercial exploitation of sex," they operate as moral guardians, not as moral neutrals. Nonetheless, the Courts' bows to liberal theory in Paris Adult Theatre are revealing, and so are the guarded compromises of the obscenity test adopted in Miller v. California. The bows and compromises reflect, as do the opinions of the four dissenting Justices in Paris Adult Theatre, that America is profoundly divided on the relationship of law to morality and on the meaning of free speech. Since Paris Adult Theatre and Miller, and despite those decisions, the quantity of erotic material has continued to grow. At the same time, feminist opposition to pornography has ripened into a powerful political movement. The Supreme Court's decisions have neither stemmed the tide of commercial pornography nor resolved the divisions of American society on the issue. These political questions will continue to be judicial questions.

Steven Shiffrin
(1986)

Bibliography

Clor, Harry M. 1969 Obscenity and Public Morality. Chicago: University of Chicago Press.

Kalven, Harry, Jr. 1960 The Metaphysics of the Law of Obscenity. Supreme Court Review 1960:1–45.

Lederer, Laura, ed. 1980 Take Back the Night: Women on Pornography. New York: Bantam Books.

Richards, David A. J. 1974 Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment. University of Pennsylvania Law Review 123:45–99.

Obscenity

BIBLIOGRAPHY

Throughout history, people have represented sexuality in literature and art. However, pornography, in the early twenty-first century use of the term, did not emerge as a mass industry until the late 1950s. It eventually broke into mainstream distribution outlets and had grown to a business estimated at $12 billion a year in the United States by the end of the twentieth century, with increasing acceptance in U.S. culture. While still proscribed by law in a variety of ways and considered unacceptable in many circles, pornography is used more openly, while at the same time pop culture has adopted many of the conventions of pornography.

State and federal laws in the United States uses the term obscenity, rather than pornography, to describe sexual material that can be regulated. Obscenity prosecutions in the United States were infrequent and uncontroversial in the eighteenth century and early nineteenth century. After the Civil War, obscenity became a more public issue, largely due to the work of Anthony Comstock and other conservative religious crusaders. Obscenity became increasingly politicized in the United States in the twentieth century, particularly when literary works such as James Joyce’s Ulysses (1922) were kept out of the country.

In 1957 in Roth v. United States, the Supreme Court first stated clearly that obscenity was outside the protection of the First Amendment, kicking off a string of cases in which the Court wrestled with how to define and regulate obscenity. In the 1973 Miller v. California decision, the Supreme Court established a three-part test for identifying obscenity, defining it as: (1) material that appeals to the prurient interest; (2) material that portrays sexual conduct in a patently offensive way; and (3) material that does not have serious literary, artistic, political, or scientific value. Further the Court identified contemporary community standards as the measure of evaluation. In decisions since Miller, the Supreme Court has upheld the constitutionality of zoning ordinances that restrict adult theaters and the use of racketeering statutes against businesses that sell obscene materials.

A separate category is child pornography, which comprises material that is either made using children or, in the digital age, made through the use of technology that makes it appear that the sexual activity portrayed involves children. The former is illegal (under New York v. Ferber, 1982); the status of the latter remains uncertain (see Ashcroft v. Free Speech Coalition [2002], in which the Court ruled that the section of the Child Pornography Prevention Act of 1996 that banned “virtual” child pornography was unconstitutional, calling it too broad in its scope).

Indecency, a term from radio and television broadcasting, defines a broader category that can be regulated. Indecent material is defined as language or material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. The Federal Communications Commission administers indecency regulations.

Obscenity laws tend to be enforced in places where there is political support from citizens. This prosecutorial discretion means that material for sale openly in one jurisdiction may not be available in another. However, the availability of mail-order and computer pornography means that graphic, sexually explicit material can now be obtained easily anywhere in the United States. As the enforcement of legal prohibitions has lessened, a formerly underground industry with ties to organized crime has become a routine business with its own trade magazine, Adult Video News.

The term used most often in the public debate over sexually explicit material is pornography. This term is not rooted in law and has no commonly accepted definition. It is sometimes used as a generic term for commercially produced, sexually explicit books, magazines, movies, and Internet sites, with a distinction commonly made between soft-core material (nudity with limited sexual activity that does not include penetration) and hard-core material (graphic images of actual, not simulated, sexual activity including penetration). In other contexts the term is juxtaposed to erotica, defined as material that depicts sexual behavior with mutuality and respect. Pornography, in contrast, is material depicting sex involving domination or degradation. In laboratory studies of pornography’s effects, three categories of pornography have been created: overtly violent, nonviolent but degrading, and sexually explicit but neither violent nor degrading.

Up until the 1970s, debates over pornography pitted liberal advocates of sexual freedom against conservative proponents of traditional sexual morality. That dynamic changed with the feminist critique of pornography, which emerged out of the larger struggle against sexual violence during the second wave of the women’s movement in the 1960s. Feminist critics argued that discussions of the issue should focus not on questions of subjective sexual mores but on the harm to women. Pornography, they claimed, harmed all women, not just those used in pornographic material.

SEE ALSO Censorship; Eroticism; Feminism; Profanity; Regulation; Sexuality; Supreme Court, U.S.; Violence

BIBLIOGRAPHY

Dworkin, Andrea. 1981. Pornography: Men Possessing Women. New York: Perigee.

Lane, Frederick S. 2000. Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age. New York: Routledge.

MacKinnon, Catharine A., and Andrea Dworkin. 1997. In Harm’s Way: The Pornography Civil Rights Hearings. Cambridge, MA: Harvard University Press.

Strossen, Nadine. 1995. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: Scribner.

Robert Jensen

Obscenity

The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness.

Nitke v. Gonzales

The Communications Decency Act of 1996 (CDA), 110 Stat. 133, makes it a crime to transmit obscenity by means of the Internet to person under 18 years of age. Individuals and organizations that display erotic subject matter on their Web sites challenged the constitutionality of the CDA, arguing that the law was overbroad and violated the First Amendment's right to freedom of expression. Under the CDA, challenges to the act must be heard by a special panel of three judges. In Nitke v. Gonzales, 413 F. Supp.2d 262 (2005), the special panel dismissed the First Amendment challenge, concluding that the plaintiffs had failed to demonstrate that the CDA was overbroad. The panel issued its decision in July 2005 and the U.S. Supreme Court allowed the ruling to stand when it denied review in 2006.

Plaintiff Barbara Nitke is an art photographer who specializes in sexually explicit subjects, including couples engaged in sadomasochistic acts and other hardcore activities. Nitke, who is on the faculty of a visual arts school and president of the Camera Club of New York, challenged the CDA because she maintained a Web site that displayed her photographs, which she claimed had artistic merit. Another plaintiff in the litigation was the National Coalition for Sexual Freedom (NCSF), a not-for-profit organization that sought to fight discrimination against non-mainstream sexual practices. Some of NCSF's members maintained Web sites that contained sexually explicit content. Nitke and NCSF filed the lawsuit in 2001, which did not come to trial until October 2004 before Circuit Court Judge Robert Sack and District Court Judes Richard Berman and Gerard Lynch.

The panel issued a per curiam decision, which meant that the author of the opinion was not identified. The panel agreed that the plaintiffs had standing to bring the federal lawsuit, for they had an actual and well-founded fear that the CDA would be enforced against them. As to the legal standards governing review, the panel noted that the CDA incorporated the legal definition of obscenity created by the Supreme Court in Miller v. California, 413 U.S.15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Under the Miller three-part test a communication is obscene if (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;" (2) "the work depicts or describes, in a patently offensive way, sexual conduct" when judged by contemporary community standards; and, (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The first two parts of the test are determined by the standards of the particular locality where the allegedly obscene material is challenged, while the third element is based on a national standard for establishing serious artistic value. The CDA provided two affirmative defenses for publishing obscene content on the Web: (1) the defendant in good faith took reasonable, effective and appropriate actions to restrict or prevent access by minors, or (2) restricted access by requiring a visitor to use a verified credit card, debit card, adult access code, or adult personal identification number. The Supreme Court has ruled that obscene speech is not protected by the First Amendment. Speech that is not obscene, including sexually explicit material categorized as "indecent" is protected by the First Amendment.

The plaintiffs had the burden of showing that the CDA was substantially overbroad because it reached obscene and non-obscene speech. They claimed that applying the Miller test to the Internet captured too much protected speech. Moreover, they could not control where their Internet content was received, leading to an outcome where their materials were obscene if one or more communities, but not in others. The court noted in its decision that the plaintiffs had failed to meet two evidentiary thresholds. The plaintiffs could not show the total amount of speech that was implicated by the CDA. Second, the plaintiffs failed to show the amount of protected speech that might be considered obscene in some communities but not in others. The panel concluded that the plaintiffs had not offered sufficient evidence to show "the extent to which standards vary from community to community or the degree to which these standards vary with respect to the types of works in question." Moreover, the plaintiffs' expert witness was unable to determine obscenity standards in "any given region." Therefore, the facial challenge of the CDA's constitutionality was unsuccessful. However, lawsuits could be filed in the future challenging the CDA if a plaintiff sought to prove that the law had, in practice, restricted the plaintiff's First Amendment rights. The heavy evidentiary burden placed on Nitke's facial challenge would not be present in an action based on concrete facts alleging infringement of freedom of expression.