Should there be legal limits to sexual fantasy?

Svetlana Mintcheva
Should there be legal limits to sexual fantasy?
Historical, legal and policy perspectives from the US.

 “If experience in this field teaches anything, it is that censorship of obscenity has almost always been both irrational and indiscriminate." Supreme Court Justice William O. Douglas

The First Amendment and Sex: Is Sexual Expression Protected Speech? Harm vs. Disgust as bases for legislation

The United States is committed to its image as “the land of the free” and no freedom is more cherished here than the freedom to think and to speak, a right enshrined in the first amendment of the constitution. But this right is by far not absolute. In the last hundred years the courts have fiercely debated the extent of first amendment protections and the debate has been especially contentious where sexuality is concerned.

For a very long time neither the courts not society at large even perceived sexually explicit material as protected speech and censorship was rampant. Even today, sexual expression occupies an anomalous second-class position, a fact which makes little rational sense and can only be explained as a result of the complicated legacy of American socio-cultural history.

To this day the courts are grappling with an inherited perception of sex as sinful, shameful and sometimes even disgusting. Incoherence sets in when they try to regulate on the rational grounds of “causing harm” something that evokes very strong emotional reactions. Mandated to protect the interests of its people and the state, government has the right to regulate and limit expression when it causes real harm to either. When it comes to sexual expression, however, strong feelings of discomfort or disgust often prevail over the requirement to prove harm. Today, obscenity (i.e. legally unprotected sexual expression) remains the only type of expression refused First Amendment protection not because of actual harm to a person, but merely because of its “offensiveness” to members of the community. Offensiveness, as John Stuart Mill argued a century and a half ago, cannot be considered harm for the purposes of legal regulation of speech.

But disgust is not only an irrational basis for discrimination, it is discriminatory: what underlies “disgust” as a principle of regulation is the desire to control and subordinate specific social groups. The opposite of such control is not moral anarchy and the dissolution of the moral order, it is respect for the desires and fantasies of others.

A brief excursion into history: Censorship as social control and subordination

Civil groups formed with the purpose to suppress “dangerous” (mostly sexual) material are an American tradition: As early as the 19th century, so-called vice societies took the task to “uphold public morals” in their hands, responding to new social anxieties generated by urbanization, changing demographics, and the proliferation of popular culture. These attempts to regulate sexual expression were linked to fears about social change.

What vice societies suppressed was always beyond rational argument: what they considered “the corrupting” influence of low subject matter was to them an “obvious” threat to society’s moral health. Nobody thought their actions violated the constitution – partly because the first amendment did not apply to the states before the 1920s (only to federal action), and partly because few political and social leaders questioned the dominant opinion that sexual expression needed to be restricted so as not to corrupt women, children or the large mass of uneducated single men or immigrants flooding the cities as labor.

Regulation of the discussion of sex may have been inherited from a protestant religious tradition, but the impetus for vice societies came from anxieties about social control. It is worth noting that among the material suppressed by 19th century vice societies was information about women’s health, alongside nude drawings and erotic novels. Regulating sexual expression was as much about protecting a certain “traditional” morality set upon religious principles as it was about control of women, the working classes, new immigrants – all those groups that now had an important social and cultural role defining the face of industrialized urban America.

Defining Obscenity: when is sexual expression criminal?
The rather vague and subjective legal standard used in obscenity cases in the U.S. until 1957 was that of an 1868 British case, which defined as “obscene” any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" (i.e. the lower classes, women and children). The law condemned writing and images that tended to “excite lustful thoughts", were “vulgar and indecent” and aroused feelings of “disgust and revulsion."

But how can we have desire and revulsion simultaneously? Who is excited and who is disgusted? There seem to be two subjects involved – one who lusts and another who is disgusted at that lust. So, again, we have the desire to subordinate those whose “lust” is not “properly” directed according to those in power. Of course, it is very likely that we have a split subject here: one who at once lusts and is disgusted at their own feelings – and that situation would reveal the full burden of a religion that considers pleasure a sin.

In 1957, in the case of Roth v United States, the US Supreme Court issued its first  definition of obscenity: it narrowed what was considered obscene and thus unprotected by the first amendment to material that (1) stimulated a prurient (morbid, unhealthy) interest in sex, (2) was offensive by community standards and (3) also utterly lacked artistic, political, scientific or educational value. Nevertheless, the disgust-lust tension remained. The definition, while still vague (who is to decide what is a morbid or a healthy interest in sex?), added a crucial consideration: “value”. This allowed many books that had heretofore been banned in the U.S. to be published, D.H. Lawrence’s Lady Chatterley’s Lover and Henry Miller’s Tropic of Cancer among many others.

The court in Roth formally recognized that that sex is an important part of the human condition and of artistic creation. In the words of Justice William Brennan (who wrote the opinion of the court): “Sex is a great and mysterious motive force in human life [which] has indisputably been a subject of absorbing interest to mankind through the ages.”

In spite of this recognition, sexual expression that was “patently offensive” and lacked “value” remained unprotected. Justice Hugo Black joined Justice Douglas in vehemently disagreeing with this. Obscenity regulation, in Douglas’ opinion, imposed a standard where “punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct.” In his written dissent, Justice Douglas pointed out the contradiction between the obscenity standard and the first amendment: “The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test, the role of the censor is exalted, and society's values in literary freedom are sacrificed.”

While obscenity regulations condemned materials just because they aroused sexual thoughts, Douglas noted, the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Moreover the “offensive to the community's standards” test was “destructive of freedom of expression” because, under that test, juries could suppress anything they don't like if it relates to "sexual impurity" or has a tendency "to excite lustful thoughts."

The Backlash against Sexual Liberalization
For a while, as society was changing, it appeared as if all government regulation of sexual expression would soon be abolished and Douglas’ views would prevail – book after book was printed and found “not obscene”. The 1960s ushered in an era of sexual liberation, which made social conservatives worried about sexual permissiveness.

In an effort to base regulation of sex on rational grounds, President Johnson appointed the “Lockhart” commission to study the effects of pornography, expecting to document harm  and thus have a free hand at suppressing sexual expression. Two years later, however, the commission concluded that pornography was not in fact harmful and called for the repeal of obscenity law. The Commission’s report was immediately denounced by President Nixon who "categorically rejected its morally bankrupt conclusions” and promised that pornography would be controlled, if not even eliminated, under his administration.

1973 Miller v California: The introduction of local community standards and a “serious” value test

A 1973 Supreme Court case revisited the obscenity standard set my Roth. Instead of doing away with the outmoded notion of obscenity, the court expanded its reach.

Justice Brennan, who wrote the opinion in Roth, now dissented, objecting to any regulation of sexual expression. The decision was close – 5 justices voted to maintain the obscenity standard, whereas 4 were against.

Justice Douglas’ dissent was again notable for its insight: “What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others.” This is what I see as the principle of mutual respect: we may be disgusted by other people’s fantasies, but this is no reason to make them criminal.

As he did in 1957, Douglas criticized the notion of offense as a vague and subjective basis for regulation: “The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. … 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 Harm Principle

Those who want to regulate sexual expression try, over and over, to prove that it causes harm. And the experimental results come in again and again: there is no evidence of direct causal harm. But politicians still don’t agree.

In 1985, Attorney General Edwin Meese convened a commission of anti-pornography crusaders that issued a dossier on the harmful effects of pornography. While admitting that linking aggressive behavior and sexual violence “requires assumptions not found exclusively in the experimental evidence,” the Commissioner saw “no reason, however, not to make these assumptions…that are plainly justified by our own common sense.” Experts consulted by the Commission condemned its conclusions.

The Value defense

The way its proponents defend obscenity law is by saying that it does not affect material of serious artistic, literary, political or scientific value. The problem is that this argument puts the burden on defenders of allegedly obscene material to prove that something has value.

In 1989 a retrospective of the work of photographer Robert Mapplethorpe, The Perfect Moment, led to obscenity charges against the Contemporary Art Center in Cincinnati, Ohio and its director. At issue were several photographs representing sexually explicit scenes from the black leather s & m gay subculture, as well as two images of young children with visible genitals.

The case went to trial. After hearing testimony from art experts, the jury had to decide whether the work was obscene based on the three-prong test defining obscenity since Miller v California. The answer to the first two prongs of the test, which ask whether the material appeals to the prurient interest in sex and whether it is patently offensive by local community standards, was clearly yes. The decision of the jury thus hinged on the third prong of the test: whether the material lacked serious literary, artistic, political, or scientific value.

Contrary to the work’s “patent offensiveness”, however, its value, according to Miller, must be judged not by local community, but by national standards. The defense summoned prominent national art experts who spoke highly of the artistic significance of Mapplethorpe’s photographs. Deferring to their opinion, the jury found that the work had serious artistic value and was, therefore, not obscene. The high profile failure of the prosecution in securing a guilty verdict in the Mapplethorpe case has pretty much inoculated art, at least art recognized as such by the experts, from obscenity charges.

This is good news for artists with recognition, but not so good news for those without an established place in the art world, like the young underground comic book artist Mike Diana, whose drawings earned him an obscenity conviction in 1994 in Pinellas County, Florida. Similarly, today material like Japanese manga, the value of which some consider low, has faced obscenity prosecutions. Given the hefty legal penalties envisioned, all of these have so far ended with plea bargains. As a result, the value defense has not been duly tested in court where manga is concerned. This is unfortunate because, given the international spread of manga and its increasing cultural prominence, it is very likely that experts would easily convince a jury of its artistic value and thus make the US a safe place for manga fans.

But should the establishment of recognized value matter so much? While, as a matter of practice, US free speech advocates use the value defense, making the legality of speech hinge upon its perceived artistic “value” just serves to consolidate cultural hierarchies and suppresses minority subcultures. Value, as we all know, reflects the prejudices of a historical moment.

It is curious to note here that the role of value of speech is seen very differently in the context of sexual expression than elsewhere. In a 2010 case relating to violence (US v Stevens), the court rejected the argument that a claim of categorical exclusion from First Amendment protections should be considered under a simple balancing test weighing the “value of the speech against societal costs.” The Court observed that, as history has repeatedly proven, something that is not considered valuable today might be valuable tomorrow. This, of course, is just as true – if not even truer - of expression with violent content as it is of explicit sexuality.

21 century witch hunts - or the fear of the imagination

The panic around sexuality is extremely acute where children are involved. Even though nudity that is innocent of sexual content is fully legal and protected no matter whether it is that of an adult or child, the vague definition of child pornography has made it hard to take a picture of a naked child without worrying about whether it may be seen as sexual. Merely possessing such an image may expose its owner to the risk of a lengthy jail sentence. 

So-called “child pornography”, images featuring sex acts involving children, is criminalized because the very production of such images is inherently related to the abuse of actual children. Indeed, the exploitation and abuse of children in the production of pornography is a crime that merits strict penalties.

However, the legal definition of child pornography has gradually expanded to include not only the representation of actual sex acts involving minors, but also any representation of minors, nude or clothed, in which there is a “lascivious” focus on the genitals.
But who is to decide if a photograph of a child “lasciviously” focuses on the genitals? What if an innocent image of a child playing on the beach arouses the “lascivious” interest of a pedophile? Should it be the potential reaction of a pedophile that becomes the standard by which we judge images of children? Vague as it is, the law leaves it up to the beholder to judge whether an image of a child or teen is pornographic or not. Worst, it loads the dice by often compelling prosecutors who look at the image of a child to think of how that image could be seen by a pedophile.

But what about sexually explicit images that do not feature real children? Images that could have been computer generated or produced by ink and on paper? For a few years at the end of the last century it looked like child pornography law might expand to include even such simulated images of children, so-called “virtual child porn.”  A provision in the 1996 Child Pornography Prevention Act prohibited "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct”. In 2002 in the case of Ashcroft v The Free Speech Coalition, the US Supreme Court found the provision unconstitutional and in violation of the First Amendment.

The rationale for that provision, which aimed to create a direct link between speech and action, was as follows:
1.Pedophiles might use the materials to encourage children to participate in sexual activity.
2. Pedophiles might “whet their own sexual appetites” with the pornographic images, “thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children.”

The first rationale - use of the materials to seduce children – was rejected by the Court because “There are many things innocent in themselves … such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused.” If the law cannot ban chocolates or ice cream because they could be used by a pedophile to entice a child in sexual behavior, then it cannot ban images that could be used for those same purposes – and whose original purpose may be completely different.

As to whetting the appetites of pedophiles and encouraging them to engage in illegal conduct, the court insisted that the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. “Among free men,” as Justice Brandeis had written in 1927, “the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” A criminal may claim he was inspired by Dostoyevsky’s Crime and Punishment or by Arthur Penn’s film about Bonnie and Clyde, but we don’t ban books and films because they may encourage illegal behavior.

As the causal link between images and actual instances of child abuse is always contingent and indirect (as is any link between a product of the imagination and a specific action) the Court found that “virtual child pornography is not “intrinsically related” to the sexual abuse of children.” The harm from images of imaginary children involved in sex acts does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts, and this cannot be a basis for restricting speech.

The Court also recognized that an expanded law could have had disastrous consequences on art, whether a theatrical production of Romeo and Juliet, which, indeed, may feature actors appearing to be minors having sex or a film based on Lolita where a filmmaker may use body doubles to shoot sexually explicit scenes involving an adult male and pubescent girl. The actors in both would be adult, but would appear to be minors. Uncertain of when the strict penalties of the law would fall on them few movie producers or book publishers would risk distributing images that they believe may break the law: they would self-censor and refuse material that may well be found legal in a court of law.

Based on all these considerations, the Supreme Court rejected the criminalization of sexual images of imaginary children under child pornography law and insisted that vital distinctions should be drawn between words and deeds, between ideas and conduct.

Still, representations of entirely fictional children in sexual situations pose a risk for their creator and distributor, as well as to the consumer. While such images cannot be classified as child pornography as they do not involve the participation of real children, they can be and are prosecuted under obscenity law, but with a twist: they carry penalties equivalent to those related to child pornography. The severe penalties are a disincentive to those who would want to challenge an obscenity charge in courts – defendants regularly plead guilty in return for lesser punishment. Thus, in 2010, a man pled guilty to obscenity charges for receiving, through the mail, Japanese manga featuring sexually explicit images of children. The case never went to trial, so experts never had the opportunity to convince a jury of the artistic value of manga. Essentially, the expression of pure fantasy is penalized as if it were a deed connected to the abuse of actual children.

In the meantime, obscenity prosecutions have increased in frequency – the majority of them targeting material featuring imaginary children. Indeed, no product of the imagination is as “patently offensive” in US culture today as imagining children in sexual situations. But why this panic? There is no inherent connection between offensive images and real life abuse, as the court wrote in Ashcroft. And no such prohibition exists where violence is concerned: we are allowed to freely imagine torture, mutilation, murder, and all sorts of other evil things.

Could it be that the unnecessary punishment of the sexually explicit imagination is a way for American culture to deal with the guilt it feels over its obsession with sex and youth? Because, as countless advertisements prove, Americans are obsessed with youth and sex (separately, but also together) and yet deny this obsession, projecting their guilt on the demonized figure of the pedophile.

Witness the modern child beauty pageant: an increasingly lucrative business, bringing in about a billion dollars a year. In these pageants 5-year olds wear heavy makeup to emphasize full lips, long eyelashes, and flushed cheeks, high heels to emulate adult women, and revealing “evening gowns.”  One can freely enjoy the rather perverse spectacle of 5-year olds in suggestive glam poses, as long as any sexual desire is vehemently denied. The more titillating young girls are presented as, the more strictly enforced the taboo on explicit desire. 

The pedophile who engages in taboo fantasies becomes a screen on which to project – and dissociate from – the guilt of a culture that both sexualizes youth and obsesses over their innocence. Indeed, disgust here can be seen as the desire to expel, get rid of our own dark side by projecting it on a demonized scapegoat: the pedophile.

Why is it so hard to respect the other even though we may not share his or her sexual fantasies? Perhaps because we need to find a scapegoat enabling us to maintain our own sense of “purity”, manage social anxieties, and continue denying our own never-quite-so-innocent humanity. Fearful of the change brought about by urbanization or immigration vice societies in the late 19th and early 20th century projected their anxieties on the young single men laboring in growing metropolises and those anxieties often took the form of disgust with the dime novels full of sex and crime that those young men read. Later the object of disgust became the desire of homosexuals, now it is the imagination of pedophiles.

Disgust is a complexly motivated emotion, it is part nature, part culture, but it is always so much part of us that looking rationally upon what disgusts us is almost impossible. And this impossibility underlies the essential incoherence of obscenity laws in the US.


 NCAC's Director of Programs. She has taught literature and critical theory at the University of Sofia, Bulgaria and at Duke University, from which she received her Ph.D. in critical theory in 1999. She currently teaches part-time at New York University. Her academic research and writing focus on postmodern literature and aesthetic provocations as well as issues in censorship and ethics.