Obscenity, as it currently applies to the legal system, is a subjective, haphazardly applied concept. It is not conducive to maintaining harmonious behavior, but only to feed the political machine in its attempt to establish moral high ground over the opposition. The obscenity law is one which has focused solely on pornography. It has attempted to censor the freedom of expression that we, as Americans, are entitled to enjoy. Through the method of comparative case study research, I have obtained a buffet of information that should interest most American readers. This topic is highly pertinent to our daily lives because it concerns the entertainment industry as a whole, and includes a large base of the political system (morality). In American culture, those who are most revered and acknowledged are the actors and actresses who perform in the best selling motion pictures. This is an enormous indication to the most casual of observers that the entertainment industry is a large part of American culture. Pornography, like it or not, is part of that entertainment industry. If the obscenity law is kept in place, and enforced consistently according to G.W. Bush's personal interests in the matter, we might see some horrifyingly revolutionary changes in this country concerning our rights as American citizens.
Pornography is the issue at hand, being that the only applicable form of entertainment which is ever prosecuted for the crime of obscenity is pornography. There is no serious evidence that pornography in itself is more detrimental than any other form of entertainment. Researchers have, in fact, found that men are more likely to demonstrate "helping behavior" or "pro-social effects" after viewing pornography (Carol). The conclusion, in this political stew of qualitative observations, is that obscenity is not a "real crime." It is, instead, a political tool used by those who are interested in gaining support of the "religious right" and any others they can collect as they spread their narrow-minded propaganda.
First, the definition of "obscenity" must be clarified. The definition can vary, however, depending on which source one consults. For instance, here is the definition from the American Heritage Dictionary:
obscenity - 1. The state or quality of being obscene. 2. Indecency, lewdness, or offensiveness in behavior, expression, or appearance. 3. Something, such as a word, act, or expression, that is indecent or lewd. 4. Something that is offensive or repulsive to the senses: â€oWhat had once been a gentle hill covered with lush grass turned into a brown obscenity of bare earth and smokeâ€? (Tom Clancy).
Next, here is the legal definition, as defined by the United States Department
of Justice, Criminal Division, Child Exploitation and Obscenity Division:
Freedom of expression has contributed much to the development and wellbeing of our free society. In the exercise of the First Amendment right to free expression which everyone enjoys, sex may be portrayed, and the subject of sex may be discussed, freely and publicly. Although material is not to be condemned merely because it contains passages or sequences that describe or depict sexual activity, the courts have consistently held that the right to free expression does not extend to material which is obscene.
Obscene depictions of sexual conduct are subject to federal criminal laws regarding importation, transportation and distribution. CEOS works with the 93 United States Attorneys' offices around the country and investigative agencies to enforce these statutes. The United States Supreme Court, in Miller v. California , 413 U.S. 15 (1973), established a three-part test for determining whether a depiction is obscene:
1. Whether the average person would find that the work, taken as a whole and applying contemporary community standards, appeals to the prurient interest;
2. Whether the work depicts or describes sexual conduct in a patently offensive way, when applying contemporary community standards; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Regardless of the prevalence of sexually explicit images in society, in the media, and on the Internet, the Miller test remains the standard by which depictions of sexual conduct are judged.
Whether the "average person", who has yet to be defined, would find that the work, taken as a whole and applying contemporary community standards, also yet to be defined, appeals to the prurient interests. How does one assert what the community standard is? This law against obscene material would be usable if only for the definition of community standard in each community being laid out explicitly beforehand. However, as it stands, one must simply take stabs in the dark, hoping to avoid becoming offensive to the "community," and stay within the limits of what is acceptable. This, in itself, is disturbingly unclear. It is much like driving on a highway where no speed limits are posted, and being pulled over for driving at a speed you found comfortable, 55. The officer tells you that, today, he feels like making the speed limit 35 miles per hour; too bad you weren't driving yesterday when it was 60.
Worse still is the manner in which internet pornography is prosecuted. Internet pornography can be prosecuted in any random city chosen by the prosecution. For example, Rob Zicari, out of Los Angeles, was prosecuted for obscenity in the state of Pennsylvania (Tapper). If community standards are to hold true, should not those who practice the creation of pornography for the internet be tried in the very same area they achieve the production of said "obscene" material? The law is too unstable, and it gives those victimized by this legal prosecution no option to abide by it.
Why would a determining factor in whether or not one rots in prison be so vague? The Constitution is supposed to protect individuals (unpopular people) from the majority (the in-crowd). Why would any law mandate that those from the majority, the collective "voice" of one's community, determine based solely on their own personal reactions whether or not what you're doing is acceptable?
Once at the beginning and once at the end, in an attempt to cover what they consider trivial semantics, the Bureau of Justice states that "regardless of the prevalence of the sexually explicit images in society, in the media and on the internet, the Miller test remains the standard". Does this mean that we're soon to see some of those lame biker movies that are just a good excuse for bare breasts and dick-chasing on a court roster for an obscenity prosecution? Not a single obscenity prosecution has been filed against any mainstream production. Not one. Well, maybe they mean that it doesn't matter what society, the media, or the internet do, they are still hard at work, using those tax dollars to prosecute perverts.
Now let us define "pornography." The American Heritage says:
pornography - 1. Sexually explicit pictures, writing, or other material whose primary purpose is to cause sexual arousal. 2. The presentation or production of this material. 3. Lurid or sensational material: â€oRecent novels about the Holocaust have kept Hitler well offstage [so as] to avoid the... pornography of the eraâ€? (Morris Dickstein).
Pornography is certainly sexually explicit and intended to arouse. So, does pornography appeal to the prurient interest? In the American Heritage, "prurient" is said to mean "inordinately interested in matters of sex; lascivious. Characterized by an inordinate interest in sex: prurient thoughts. Arousing or appealing to an inordinate interest in sex." Does not all pornography appeal to the "prurient interests"? The answer is, undeniably, yes. So by this definition of obscene, pornography is at risk at all times. Even more frightening, if you look at some other dictionary definitions of "pornography", you get almost the exact wording of the definition of "obscenity". Take a look:
pornography, n : creative activity (writing or pictures or films etc.) of no literary or artistic value other than to stimulate sexual desire
The law itself is obviously corrupted with the conscious and malicious correlation between the very dictionary definition and the legal delineation. Then there's the second part: the three-prong test. One must determine whether the work lacks literary, artistic, political or scientific value. It must be sexual, it must be arousing, and it must be... shallow. What about "Baywatch"? What about "The Fast and the Furious"? What about "The Man Show"? If you can argue that any of these shows contain artistic value, then one can certainly argue that the simple act of sex holds the most profound artistic value possible to mankind. "It is the basis for our being. It is our primitive instinct. It is what everyone has in common. It is what makes us diverse, unique, and connected. Sex." said the defense attorney to a jury of his peers, but their ears did not retain his meaning, for they were deafened by the resounding clang of the "narrowly-defined-morality" bell. There are plenty of morally sound people who believe that sex is natural and good. Why is it that those who assume the moral high ground also assume responsibility for everyone's sense of morality?
Many pornography supporters assert that, regardless of definition, there is no need for the obscenity law in American society at all. Implementation of any law which bans expression based on content and taste has no grounds in a country where "freedom of expression" is a top priority. Some suggest that obscenity be used only to prosecute child pornographers. First amendment students would tend to disagree with this use of the law, stating simply that obscenity is a slippery slope situation. Once there has been a superfluous child pornography statue emplaced, it is certain to be followed with laws referring to the content of child-oriented pornography, and then the appearance of child-like features in a pornographic setting, and so forth. The line of unreasonable thinking will split over and over again, until it becomes a web in which all pornographers are entwined. The reason for this is that the "moral majority" has certain organizations, namely "Morality in Media", "Focus on the Family", and droves more, whose purpose is to eliminate pornography entirely. These people are not sated with mere checks and balances which hold pornographers to the standard of legal production and fair employee treatment; they believe that pornography is, in itself, sinful, and will do anything necessary to help abolish it completely.
"The problem of pornography is not the same as it was in 1970 when I served on the Presidential Commission on Pornography. At that time, pornography was downtown. Now it's downstairs. Now we have dial-a-porn, cable porn, video porn, mail porn, and computer porn. Now porn is in the home, reaching families and children." stated Father Morton A. Hill, Founder of Morality in Media.
On their website, www.moralityinmedia.org, they have tips on how to aggressively "take care of" the porn "problem" in America. They have sections on: Mail Porn, Computer Porn; Video, Magazine and Paperback Porn in Adult Stores; Dial-a-Porn, TV Porn, and even Sexually Oriented Businesses. They go further, and even supply you with Federal Obscenity Complaint Forms and State Obscenity Complaint Forms, were you so inclined to make a report. They state that they "know that Americans want the Federal and State laws against hard-core porn vigorously enforced." Morality in Media has made sweeping statements about Americans and their values; they have demonized every aspect of porn, and called upon selective legislation to back up their claims. They denounce the First Amendment, reinforcing the concept that "pornography is not protected by" this important part of the Constitution. This is but one of many tightly wrapped organizations which use their influence any way possible in order to eliminate the freedoms of pornographers and entertainers to participate in a lifestyle that they enjoy.
Morality in Media is convinced that pornography is a sickness which spreads randomly to everyone who encounters it. They believe that pornography can become an addiction, due to the very malevolent nature of the product itself. One featured psychologists on the site is Dr. Victor Cline, author of the monograph "Pornography's Effects on Adults and Children". He says, "Some of my porn addict patients inform me that the Internet has three major advantages in feeding their addictive sexual illnesses. They call them the three A's: It's easily Accessible, Affordable, and Anonymous." Could this not, however, be applied to alcohol and those addicted to it? Shall we call for a renewal of prohibition? It's also much like gambling. Is this a signal that we need to prohibit poker games and lottery caches? What about the evils of "online gambling"? Shall we prosecute the instigators of those websites as well? This stigma could apply to anything and everything an individual could become addicted to: video games, crossword puzzles, knitting... the list could go on forever. Obviously, this is a blindly pursued train of thought which cannot functionally be applied inside of legislative measures. If a law cannot be uniformly applied, it is a helpless mandate with no logical backing. These activists forget that, though people certainly have preferences about the things that occur around them, it is unjust and foolhardy to enforce such preferences with legislation.
In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court answered the question "whether obscenity is utterance within the area of protected speech and press." In holding that obscenity is "not within the area of constitutionally protected speech or press," the Roth Court quoted from its earlier Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) decision:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene... [s]uch utterances are of no essential part of any exposition of ideas, and 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."
The government will constantly prevent and punish certain things with which the majority may not concern itself. Naturally, if the majority and the minority are on opposite sides of the issue, the majority's voice will be heard over the minority. However, the Constitution was designed with the purpose of protecting the rights of the minority; the majority needs no such protection, due to their intimidating number. One could simply assert that what the majority says is what is to be done, and all of that excess penning could have been avoided, and left Thomas Jefferson with a bit less carpal tunnel. The Constitution was so exceedingly clear due to the absolute necessity of explicit rights drawn out for the defense of the innocent minority. The desired effect was that, were a member of the minority to be accused of an offense, all parties involved would come together on one point only: the validity of the rights delineated in the Constitution. Therefore, was this party participating in a Constitutional, guaranteed right, though disagreeable to the majority in content, this party would be freed and allowed to continue his plight through happiness and free expression.
In the case of Miller v. California, Justice William O. Douglas argued for the rights of those who wish to express themselves. He said that the Court had no authority to rule on obscenity because the Constitution offered no guidance on the issue and the First Amendment guarantees freedom of speech with no mention of exceptions. He said that, furthermore, Douglas said that just as people have the right to say or publish what they choose, no one is compelled to look or to listen to any of it (Hughes).
Secondarily, there are plenty of things that are not by any means essential to communication, education, or the conveyance of truth; however, many of these things are not banned due to the entertainment value. It seems ludicrous, especially in this day and age of superfluous entertainment with such unusable information and tactless shock value, to assign the legality of a product based on the beneficial content. "The Man Show" is a bunch of jerks sitting around talking about how they like their women, their steaks, their beer, and their movies. It is a completely useless show containing no informational content and value. At the end of the show, there is a portion where girls jump on trampolines, thereby jiggling their bosoms, lifting their skirts, and spreading their legs as they spring into the air. This is clearly of prurient interest with no political, scientific, educational or artistic value whatsoever, but there are no lawyers clamoring to try this case based on the obscenity standard. Why? Because these people do not, in reality, care whether any given show or video tape has educational value, or is useful to anyone in any way. What they do care about is politics, and the ability to boost political careers with easy appeal to the public. This is the only theory which makes any sense; otherwise, we're being governed by a bunch of dolts who can't think through an algebraic equation. Come to think of it, it could be a little of each.
In Miller v. California, supra, the Supreme Court said:
"This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment... The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press... 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political or social changes desired by the people'... But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
The conceptual matters in the above statements have a tone of logic to them. Unfortunately, were we (as a country) interested in preserving these ideals, there would be no action movies, karate movies, horror movies, or anything else related to the concept of "public portrayal of hard-core violent conduct for its own sake, and for the ensuing commercial gain." Avoiding a lengthy debate about the value of pornography vs. violence, one must at least consider the obvious: if one is going to protect constitutional sanctity through the elimination of arbitrary, unliterary, inartistic, nonpolitical, and unscientific material, one must apply such an assessment uniformly. The Constitution is meant to be an unbiased, universally applicable document which protects us and defends our rights. With such a great weight of responsibility within one document, is it not accurate to assert that the expositions within such document must adhere to a mandatory regularity? In this case, is it also accurate to report that there are thousands of oversights in the circumstances of obscenity which need to be prosecuted? Is it also fair to allege that the prosecution of all other such "obscene" material is virtually impossible since the situations which require the remedial extraction are too innumerable to combat? So why are we assailing those who fall into the category of pornography only? Why not prosecute every violation?
As it states, the Justices were concerned about the consequences of this legal action. They had good reason to sound the alarm of repression. Demeaning the grand conception of the First Amendment and its high purposes in the historic struggle for freedom is what occurs when people believe that they've accurately interpreted the meaning of Freedom while attempting to enforce laws that restrict those who harm no one. Morality in Media insists that pornography inspires rape and violence. I contend that, if one watches a mobster movie, one may play out images in one's head which include oneself as the hero or villain, but will likely not act them out, as an adult. Pornographic material is only available in certain areas where, in order to access, one must produce an adult identification. Regardless of what Morality in Media may want you to believe, pornography is not a rampant and uncontrolled form of entertainment. It is very well regulated and very enforced. Adults must be used in the creation of pornography. Only adults are allowed to view such materials. In a hotel room, there are security access codes and company rituals one must undergo before gaining access to the pornographic films. On the internet, there are front pages with no nudity to confront a first-time visitor to a lewd site on the chance that a child encounters such a site by accident, and allows the option of returning to his normal internet activities without trauma. However, the likelihood that a delinquent would reach a pornographic site unintentionally is slim. Parents can also enact features on the internet browsers themselves which restrict a child's movement throughout the internet to kids' appropriate sites. AOL is one of the many browsers which offer these features. Not to mention, were parents consistently involved in the activities of their children, these things would never have the momentum that they do. Good parenting can and does mean the difference between haphazard delinquency and knowledgeable maturity. When parents educate their children about sex, the desire to self-educate via the internet dwindles significantly. Children who already have a working knowledge of sex don't feel the urgency to acquire the mysteriously clouded topic's answers through any means necessary. Communication between parent and child is the key to successful behavior without deviant fixations. Children are likely well-advised to be protected from pornographic materials, especially if they are not yet sexually active or sexually aware. Will it injure them or stunt their growth? Will it make them monsters or twist their psyches? No, but they might attempt to duplicate what they saw.
Knowing this, why do we allow our children to watch violent programming? Why are they capable of walking in to a theatre where there is a violent, blood-scraping, eye-socket wrenching, gut-stabbing, gun-firing movie occurring, but can't pick up a magazine which depicts a naked woman? Does it make sense to show our children things that we hope they never experience in their entire lives (murder, torture, mutilation), already knowing that children have a strong tendency to recreate the images from the television screen into reality (Smith) --- and not to allow them to view, talk about, read about, or even hear about something --- sex --- which we sincerely hope they participate in at sometime in their lives?
Does it make sense to blame rape on a Playboy Magazine when this same individual has no difficulty repressing his urge to karate chop everyone in sight after viewing a Bruce Lee film? Whereas a child who views a wrestling match on television may be inspired to try the pile-driver on his best friend, an adult who views the same show will likely not respond similarly. Pornographic material has been a scape-goat for rapists for quite sometime, and, as the validity of this defense is continually confirmed by the right-wing activists, this defense becomes more and more usable by those monsters which roam the streets, seeking their next victim to abuse and molest. If violent pornography causes rape, ponder this: Japanese pornography is 80% violent, even their animation films have violence. Japan only has twenty-two hundred (2200) rapes in a single year. Want to know how many are in the United States? Ninety-thousand (90,000) in one year (Schomburg). In fact, there are numerous European countries in which both pornography and prostitution are widespread and legal, yet the incidence of rape is much lower than it is in America. In Germany, for example, explicit pornography and prostitution are both legal, yet it has less than one quarter of America's rate of sexual assault (Wong).
If a sexually deviant criminal claims that "Bugs Bunny inspired me to do it," is he believed and his claim validated by the fact that he has many Bugs Bunny cartoons on videotape? No, this criminal would be laughed out of the court room. This statement would be dismissed as misplacement and lunacy. Why isn't that same disregard applied to the ridiculous statement which blames pornography for one's violent tendencies?
As the right-wing activists continue to refer to pornography as a valid defense, they continue to give violent criminals something to use in their defense. Even Ted Bundy claimed that he became obsessed with hardcore pornography involving sado-masochism and bondage. He said he enjoyed the feeling of being in complete control of his victims. This is coming from the man who claimed that he was taken over by an "entity" which forced him to perform these acts of violence (Summers). Morality in Media does not seem aware of this consequence, as they continue to promote such excuses. With all the research that Morality in Media has done, is it possible that they are uneducated in this topic? Is it possible that every single staff member who conducts interviews with well-known and revered psychologists, formulates plans of action against the evils of pornography and its effects, and offers therapeutic services for those who are under the malevolent spell of pornographic addiction is oblivious of the profound and counter-productive consequences of their own claims? If the answer is yes, one can only conclude that this organization is not a worthwhile source to obtain one's information from. If the answer is no, and people who work at Morality in Media are aware of these things but continue to provide this safety net for the defense of any given sexual criminal, one must come to the realization that Morality in Media is a politically charged tool which runs on the power of moral high-ground with vigorous charge toward its political ends.
There are many organizations like this and the legacy is bound to go on. Children are not the reason for their agenda, and neither is morality. True morality includes tolerance and love. To allow these activists a title which includes such an adjective is obscene in itself. The promotion of intolerance, persecution of others' beliefs, and legal installation of your own morals onto others is immoral and inexcusable.
Pornography does not cause "porn addiction", no more than food causes a food addiction. People saddle themselves with their own addictions due to lacking areas in their lives. Addictions are formed due to personal inadequacies and a craving to fill them.
Pornography has not been scientifically proven to cause violence; in clinical studies, it has actually been proven to have the opposite effect. The less pornography is blamed for violent crimes, the more personal responsibility criminals will be forced to take.
The Constitution has a lot of responsibilities on its shoulders. One of these responsibilities is to defend the rights of Americans everywhere. It defends our right to create things, say things, and do things that are offensive and rude. It defends our right to be disgusting, to be immoral, and to be off-color. The Constitution is what makes America free. To let all that it stands for fall to the ground is the saddest occurrence this country has ever seen. May Lady Liberty stand tall, and someday maybe people will listen to her call.
Works Cited
Cline, Victor B. "Pornography's Effect on Adults and Children." Morality In Media . 2001. 3 Dec. 2004