Obscenity in the United States
Forty-two senators in the US have signed a letter to attorney general Holder asking for the DoJ to "combat the growing scourge of obscenity in America" by stepping up obscenity prosecutions (link).
This move can be seen in a larger context: the fighting against perceived social ills, with the accompanying belief that upholding particular freedoms and liberties is less important than addressing the harms they enable. Drugs, gambling, and sex are the big categories here. If I recall correctly, many southern States even banned sex toy shops. And there's major hypocrisy: for example, marijuana production, distribution, and possession are all illegal despite the general lack of harm while the legality of alcohol consumption allows (if not causes) huge damage to society and ruins people's lives.
I think many people conceive of legal authorities as having a duty to take up the "hero" role and intervene in people's lives, against their will, for their own good, or for the good of others. There's even a sentiment that they should act as sin regulators and make sure society's behavior is above a minimal threshold of purity, in essence if not in word. I view the latter political tendency as extremely dubious. I want to focus on "obscenity" in particular.
Some pornographers have made claims to the artistic merit of the works they publish. Although I think porn can be art and vice versa, I also think that a lot of porn is simply for libidinal purposes and has no artistically intended meaning - the merit claim might simply be ad hoc reinterpretation for legal defense, not real ideological position. Indeed, in porn sometimes it's the "obscenity" of given acts that make them eroticized for various demographics in the first place. A major psychological component of sex is the interplay between tension and relief, and one avenue to achieving this interplay is the exploration of natural feelings of shame and experiences associated with it. Hence, dirty talk and positive appraisal of so many related things "dirty" is (to an extent) mainstream and normal. Much less typical manifestations of this are seen in things like cuckolding, scat and watersports, bestiality, incest, and other extreme sexual activities plus many BDSM-themed ones, drawing upon humiliation for sexual excitement.
The general problem I see is this: why shouldn't the First Amendment protect obscene material just like any other? In practice obscenity has never been held as protected expression. There are a number of very important subissues, like with the vagueness doctrine, the merely hypothetical nature of the definition of obscene, and actionability of obscenity despite no interference with people's personal rights nor any direct injury caused by their production or distribution.
In Miller v. Californa, Chief Justice Burger wrote the court's opinion that define the modern Miller test:
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.
Why must a material have one of those types of values in particular - and why must it have community-approved value at all to be allowed? Why single out offensive sexual conduct out of all potential offensive material, given that nonsexual offensive works harbor the very same potential for harm? Why are subjective, ever-changing community norms and mores the standard for liberty and freedom? Justice Douglas wrote a dissenting opinion:
The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people to anger.' The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive' to some.
One person's trash is another's treasure, as the saying goes. I don't think it's the government's responsibility to take out the "trash" for vacuous puritanical reasons, especially when people are actively using said "trash" for their own private purposes. If the DoJ should expend its resources on expunging or combating harmful obscenity from society at all, it would be better spent on addressing the mud and slime in campaigns and general political discourse in the media rather than pornographic entertainment.
The recent letter cites pornographyharms.com as documentation of the harm caused by pornography. My synthesis is that the gist of the information on that website is as follows, in no rational order:
Sexual offenders consume hardcore pornography.
Children can easily come into contact with sexually explicit material via the internet.
Many people become addicted to pornography to the detriment of their relationships, potential or actual, or everyday activities, or personal self-esteem.
Consumption of some forms of pornography are followed by other forms as viewers (or readers) seek out "harder" material, potentially leading to child porn.
Sex trafficking is responsible for production of some pornography.
A large amount of pornography is generic, formulaic, one-dimensional and ultimately unrealistic.
Porn stars are at high risk for sexually transmitted diseases and often engage in destructive, hedonistic lifestyles.
Numerous messages are sent (or evoked) in porn that degrade or objectify women, sexualize children, rationalize exploitation or particular immoral acts and behaviors, or selectively emphasize certain points about sexual intimacy and normality. These messages are extremely prevalent.
These are not all meaningless issues. However, few are relevant to obscenity laws and actual real-world prosecutions, and of the points that are relevant, the question remains as to why consenting activity between adults should be legally actionable. Pornographic entertainment is not the only medium that can inspire harmful attitudes, perceptions, or behaviors - this is an inevitable outcome of any form of media ultimately - and literally the only quality that makes so-called "obscene" material a target for legal action, where other material with equal or greater potential for enabling harm is not, is that it is sexual in nature. Why should that matter, is this not an arbitrary double standard, does this not betray a shallow puritanical basis for obscenity laws in the first place? Movies, books, songs, newsletters, forums, and video games which are equally obscene - offensive to community standards and of no redeeming social value - are not outlawed: if anything their accessibility is simply restricted to adults. In the final analysis, if the First Amendment is powerful and broad enough to allow something as vitriolic as violent hate speech (which it does), it is absolutely inconsistent with the founding constitutional principles and spirited intentions underlying the amendment to outlaw abnormal or offensive pornography, a.k.a. "obscenity".
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