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.
