Candide, Canterbury Tales, and The Arabian Nights were all once deemed “obscene” by the federal government. In 2005, Cocktails 2, Ass Clowns 3, and 1001 Ways to Eat My Jizz were all spared that fate. Nowhere is the subjectivity of obscenity law more succinctly, if ironically, expressed than in Justice Potter Stewart’s famous locution in his concurring opinion in the obscenity case of Jacobellis v. Ohio (1964): explained his reluctance to define “hard-core pornography” Stewart wrote, “I know it when I see it.”
But the “pornographies” Stewart saw and knew to be such in the 1960s are now relics of what may be viewed as a more sensitive American temperament regarding sexuality. Mainstream movies like the Midnight Cowboy (which won Best Picture in 1969) and Last Tango in Paris (1972) pushed the sexual envelope in their time, but when compared with the scenes of gratuitous (and sometimes not so gratuitous) sex that have pervaded American entertainment over the past few decades, it is clear that what Stewart “knew” about pornography in 1964 is largely irrelevant today. At the same time, if society has become more progressive about its attitudes towards the profane, it has also become more confused.
The history of obscenity law in America exhibits a curious reconciliation between the champions of morality and those of the first amendment. American obscenity law was birthed in the colonial motherland with the case of Regina v. Hicklin (1868). This decision from the Queen’s Bench provided the authoritative judicial definition of obscenity that would prevail in the United States until well into the 20th Century. It made clear that a publication could be prohibited from publication and sale solely because of sexual content, regardless of the larger intent or message of the work. While this may have been fine for a country without a Bill of Rights, the constitutional dangers of adopting this standard are readily apparent.
This was the prevailing standard for prosecuting obscenity in America until 1933 and 1934, when federal district and appeals courts determined James Joyce’s Ulysses was not obscene despite the presence of pornographic passages. Obscenity then became a question of whether or not the author had “pornographic intent” that aimed to “stir the sex impulses or lead to sexually impure or lustful thoughts”.
The United States Supreme Court didn’t weigh in on the issue of obscenity and the First Amendment until 1957 in Roth v. US, finding obscenity to be outside of the protections of freedom of expression (the same is now true for child pornography in any form) while developing the new standard for defining obscenity. This definition of obscenity saw modification by the courts as the 1960s brought a heightened national awareness of the rights of the American citizen (and a sexual revolution of some sort), reaching final form in Miller v. California (1973). Under Miller, determining whether a work is obscene, and as a result outside the boundaries of First Amendment protection, is contingent on resolving each of the following:
(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; (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The majority opinion in Miller, written by Chief Justice Warren Burger, confined “the permissible scope of [obscenity] regulation to works which depict or describe sexual conduct.” As a result of this codification of obscenity, champions of morality were obliged to shift their focus from works of literature and other obviously artistic forms of expression (common targets of prosecution and persecution in the first half of the 20th Century) to the blossoming pornography industry. It is important to recognize that these standards provided by the Supreme Court do not—and never did—operate as legal definitions but as mutable operational norms.
Another aspect of the established obscenity law that has and will continue to undergo change is the idea of community standards. While Miller specifically rejects the idea of a national standard in favor of contemporary local community standards (though it neglects to delineate just how limited a local community can be) subsequent rulings have come to support both the idea of the national and local community. This shift may have been in some part a result of the legitimization of the pornography industry in the “porno chic” era of the early 1970s as such films as Deep Throat and Behind the Green Door were wildly successful in mainstream cinemas. For years after the release of Deep Throat opponents of pornography rushed to bring suit against the companies and individuals associated with the distribution of the film in each state in which the film was shown. As Deep Throat tried to remain one step ahead of lawsuits, it seemed as though a national standard for obscenity might be necessary.
Another more recent complication to the legal legitimacy of using local community standards in determining what is obscene has been the mushrooming access of almost every segment of society to the Internet. Some public library computers must think it their noble mission to bring porn to the masses. But is the idea of the local community even viable as technology connects not only distant and distinct regions of the country but of the world as well? The Child Online Protection Act (COPA) of 1998 attempted to apply the idea of local community standards in determining whether material is harmful to minors. Two years later, however, the 3rd US Circuit Court of Appeals in Philadelphia struck down the law as an unconstitutional infringement on freedom of speech, writing “Web publishers cannot restrict access to their site based on the geographic locale of the Internet user visiting their site.”
Though the lower court’s decision was vacated and sent back by the Supreme Court in Ashcroft v. ACLU (2002) on the grounds that the community standards issue was not sufficient to find the act unconstitutional, several justices of that court expressed their apprehension in applying local community standards to the World Wide Web. In his concurring opinion Justice Stephen Breyer wrote that “to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.” As of 2007, COPA still has not passed the test of the Federal Courts largely because of its breadth, pushing for a returning to obscenity law standards of the 1930s that covered all material pertaining to the “prurient” interest, soft and hard-core alike. In the mean time other less restrictive regulations on Internet access to pornography, almost wholly focused on the protection of minors, have been adopted.
Due to the landmark privacy case Stanley v. Georgia (1969) that established the right of any adult to possess pornography, as well as many subsequent decisions that uphold the rights of consenting adults to do practically anything together, attempts at regulation of pornography on the Internet have ultimately come down to limiting minors’ access to sexually explicit material and to eliminating child pornography (not protected under the First Amendment). Here the freedom of expression guaranteed by the First Amendment, as related to pornography, is tempered by the “harm principle” long applied to other facets of First Amendment limitation.
While perhaps not viable for Internet restriction, local community standards continue to play an active role in obscenity litigation. In October 2007, a case brought by the Federal government in the district of Arizona against JM Productions supported the practice of using local community standards in determining pornographic material to be obscene. The grounds on which a handful of JM’s videos were found to be obscene is telling of the enormous transformation community standards have undergone over the past half-century. An Arizona jury of eight women and four men found the title Gag Factor 18 to be “too extreme” for the community standards of the Phoenix area, therefore obscene, while Filthy Things 6 and American Bukakke 13 were spared that judgment.