The Diffusion of Obscenity and Pornography and the Courts of Law in United States | Sunita Samal

Abstract: Is obscenity anti-female propaganda? Is today’s pornography tomorrow’s eroticism? The question is whether it violates the personhood of receiver. On the one hand it is unjustifiable invasion of privacy on the other hand it is another step toward censorship.

Introduction: The issue of obscenity and sexually explicit material has been an area of much contention for most of civilized history. Religion, for example, have historically taken action to define explicit sexuality as immoral. The United States obscenity law deals with the regulation or suppression of what is considered as obscenity and therefore protect speech under First Amendment to US constitution. The issues of freedom of speech and press protected by the first Amendment to the Constitution of United States. Because censorship laws enacted to combat obscenity restrict the freedom of expression and legal definition of obscenity presents as a civil liberties issue.

Violation of personhood: The restriction of the United States government puts on the distribution of sexual material seems at odd with the First Amendment of the constitution which guarantees as a basic right of freedom of religion, speech, press and assembly. Pornography is one facet of obscenity that is debated more frequently and most passionately than most. In order to better understanding of current rulings of pornography and obscenity, one must first analyze the historical ruling of US Supreme Court. Taking into account the aforementioned factors, the intrinsic vagueness of the term ‘obscenity’ and the rights given by First Amendment, it is apparent that Supreme Court past rulings on the topic have been unconstitutional.

While obscenity might be treated delicately by some, the topic is continuously prevalent in today’s US court system. The access provided by internet to controversial material only serves to perpetuate the age -old conflict between restriction of obscene material and the freedom of speech guaranteed by the First Amendment. To begin with, one must decide what obscenity means before one can decide whether it is protected by the First Amendment. There is lack of uniform interpretation of the term obscenity. Is today’s pornography tomorrow’s eroticism? Al Goldstein, publisher of Screw magazine stated ‘I do not 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. In 1964 case Jacobellis V. Ohio, Justice Potter Stewart announced that hard core pornography is hard to define. Such an opinion, however, leaves obscenity and pornography open to subjectivity.

Aside from controversial Supreme Court rulings on the topic, there are also arguments for and against the harm pornography does to individual and society. In order to judge whether or not the Supreme Court has ruled in historic cases, one must look at these arguments and decide what obscenity really is and whether pornography is actually harmful. In the past, the Supreme Court rulings against the distribution of pornography have been unconstitutional and ill informed1 [1].

Helen Longina2 [2] is a well-known expert on the effects of pornography focuses on the result rather than contend of pornography. She claims that it is verbal or pictorial explicit representations of sexual behavior that have distinguishing characteristics of the degrading and demeaning portrayal of the role and status of women as a mere sexual object to be exploited and manipulated sexually. The 1970, Johnson Commission found that the word ‘pornography’ was not used descriptively and denotes subjectivity and it has no legal significance.

The word obscenity commonly used to refer to something sexually explicit. The second Commission of 1979 found that obscene was a word expressing disgust or repulsion and that the word was no longer useful in Court. The third is Meese Commission of 1986 simply stated that ‘obscene’ material, was material which could be prosecuted without offending an authoritative interpretation of the constitution. Each Commission had different findings concerning the words ‘obscene’ and pornography and in their various results has proved that the words are indeed difficult to universally define.

Longino asserts that the content is not issue and the degradation of women is the problem with pornography. She goes further to show that there are following 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.

Longino acknowledges and identifies three main criticisms. The first criticism is that banning pornography is an unjustifiable invasion of privacy. She replies the open commerce of pornography occurs in the public sphere and therefore is not protected by privacy rights. Pornographic materials for one’s personal use, but be represented from reproducing and distributing them.
By allowing the production and distribution of pornography to remain legal, the nation shows an approval of immoral sexual behavior that is physically violates the personhood of a participant. Longino asserts that the content is not the issue: the degradation of women is the problem with pornography.
It seems clear that however a liberal western democracy may decide to deal with pornography. Any modern government, will seek to permit sexually explicit communication to adults on the same basis it permits sexually explicit communication about a wide variety of topic. But by allowing the production and distribution of pornography to remain legal, the nation shows an approval of immoral sexual behavior that is physically and psychologically violating the personhood of a participant.

The sale and distribution of obscene materials had been prohibited in most American States since the early 19th century and by federal law since 1873. Adoption of obscenity law in United States at the Federal level in 1873 was largely due to the efforts of Anthony Comstock’s intense effort to the passage of anti- obscenity statute known as Comstock Act3 [3] which made it a crime to distribute ‘obscene’ material through post. The law criminalized not only sexually explicit material, but also material deals with birth control and abortion4 [4]. However, the legislation did not define obscenity which was left to the courts to determine case by case basis.

In the United States, the suppression or limitation of what is defined as obscenity raises issues of rights to freedom of speech and of press, both of which are protected by First Amendment of the constitution of the United States. The Supreme Court has ruled that obscenity is not protected by the First Amendment, but that the court still need to determine whether material in question in ach case is obscene. For example, the classic nude forms such as Michelangelo’s David statue is generally less respected commercial pornography. For Justice Potter Stewart the criminal laws in this area are constitutionally limited to hardcore pornography. The US Supreme Court took this decision emphasizing that under Roth5 [5], material could not be deemed obscene unless it was utterly without redeeming social value.

Longino’s objection is that production and distribution is protected by the first amendment of constitution. Censorship of pornography is just another step closer to all disruptive material including political censorship. She first asserts a claim that none would refute that the Bill of Rights was framed to protect citizens from state power. In regards to liberty there are two ways to interpret it. The first is that liberty means license to be free of legal constraints; the second is that it 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. With this connotation of liberty, freedom of speech is not fundamental but derivative of the basic right to independence—freedom to participate as a determining factor of 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. Longino seems to believe that speech should only be completely free so that it will include to criticize the government.

Cult of Macho: Joel Feinberg6 [6] address refutes the argument of Longino. He argues 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 the crime record are large. Whereas in country like Netherlands and Denmark where there is surplus of pornography, there is little crime against women. Rather than pornography being the main source of violence, Feinberg blames the ‘Cult of Macho’ where the man is the typical description of a man who drink, tough, unemotional with great sexual power.

The 1957 case of Roth V United States is one of the earliest cases dealing with circulars to advertise his enterprise and was charged by district court for mailing obscene circulars and newsletters which violated federal obscenity statute. The case was brought to Supreme Court of US and Roth was ruled against. Justice Brennan delivered the opinion of the court that obscenity is not protected by the first amendment. He distinguished between sex and obscenity saying that obscenity appeals to prurient interests where as at times sex can be featured in literature and art without doing so.

Douglas elaborated that Court’s ruling against Roth made the legality of a publication turn on the purity of thought which instills in the mind of the reader. By doing this, the court inflicted punishment based on thoughts and not on actual conduct. Douglas strongly stated that government should be concerned with anti-social conduct, not with utterances.

Haskins denotes two types of communications. [7] Those are linear and transactional. The linear model identifies the speaker as the sender of message received by passive listener. The listener does nothing to give meaning to the message and content is therefore the responsibility of the speaker. The transactional view understands communication as being a simultaneous communication and a simultaneous interaction between the sender and receiver. The receiver is active in giving meaning to the message. If one is viewing violent pornography, his or her reaction would be influenced by his or her moral values, religious beliefs, childhood experiences etc. These factors determine how to interpret and react to the message being sent. These models of communication and the evaluations of them create much confusion in courts. Using the linear model, obscenity is easily defined and punished. Using the transactional model, however, is more difficult to identify and punish.

Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protest even against the moral code that the standard of the day sets for the community. Literature should not be suppressed merely because it offends the moral code of the censor. Such a view falls in line with the transactional model of communication. The action and not the thought are what should be examined. This is because the judge can not truly know what sorts of thought arise in an individual mind.

In 1996, the Communication Decency Act (CDA) was formed which prohibited the knowing transaction of obscene message to children under 18 years via internet. To replace CDA, Congress created the Child Online Protection Act (COPA). Therefore, obscene material was illegal if the average person is applying community standard. Since COPA was still relying on the application of community standards to rule content as obscene, the Court of Appeals also rule in favor of the American Civil Liberties Union stating that community standards do not apply to internet because web publishers can not control the geographical location of browsers.

Concluding Observations: In 1964, in Jacobellis V Ohio, the Supreme Court held that a work could be obscene only if it was utterly without redeeming social importance. It is argued that obscenity should be judged by community standard which is difficult in internet age. It creates significant controversy in legal community. A hard-cover magazine called Eros contained letter from the editor announced its dedication to ‘keeping sex as art and preventing it from becoming science’.

(Author: Dr. Sunita Samal, PhD from J.N.U., New Delhi)

References:

1-Mueller, Laura J. ‘The Issue of Obscenity: Argument on Pornography’
2-Longino, Helen E. (2003) ‘Pornography, Oppression and Freedom: A Closer Look’ In ‘Morality and Public Policy’ Ed. Steven M. Cahn and Tzipporah Kasachkoff, New Jersey: Prentice Hall.
3-Wikipedia: United States Obscenity Law.
4-Jone Axelrod-Contrada (Sept. 2006) Reno V ACLU: Internet Censorship, Marshall Cavendish.
5- Wikipedia: United States Obscenity Law.
6-Feinberg, Joel ‘The Feminist Case against Pornography’ In ‘Morality and Public Policy’ Ed. Steven M. Cahn and Tzipporah Kasachkoff, New Jersey: Prentice Hall. (2003)
7-Haskins, William A. et al. ‘Freedom of Speech: A Review Based upon Analytical Communication Models’, Communication and the Law, June, 1986: 37-54.