Obscenity is illegal in America and pornography can only be sold in the US if it can’t be defined as obscene. Obscene material has no first amendment protection.
The legal definition of obscenity dates to Miller vs California (1973). The three pronged definition of obscenity that court gave rise to is known as the ‘Miller Test’.
Miller asks:
(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 applicable state law.
(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The porn industry has embraced Miller. It was the first ruling which allowed some pornography to be defined as legal in the US, and for thirty years has been used to successfully defend pornography from being classed as obscene. However, each prong of Miller has serious flaws which are making it increasingly likely that it’ll be successfully used to bring obscenity charges against sexual material and put the legal production of porn in the US in jeopardy.
- The use of ‘community standards’ means material can be legal in some places and illegal in others. Transporting obscene material carries a 10-year jail term and a $250,000 fine and, thanks to clause (a), the only way to test material for obscenity is in court. This allows any prosecutor to go after any pornographer at any time, with the consequence that most porn companies choose not to ship to states who might litigate. The ‘community standards’ clause has imposed self-censorship on pornographers and made all explicit material potentially obscene in any community. If you win in court in Tennessee you can still be obscene in Arkansas. For pornographers they only know their material is not obscene where they’ve been to court and won.
- Asking a jury to decide if material’s ‘patently offensive’ is to require them call on their own standards. Many people find many things ‘offensive’, and each jury will have a different take on what’s ‘patently offensive’ (not a problem with crimes like car-jacking, burglary and tax evasion which are all pretty clear-cut and juries tend to agree on). Offensiveness is a moving target which limits pornographers ability to confidently produce legal sexually explicit material because they can’t guess what a jury might be offended by.
- Most porn fails to clear Miller’s first two hurdles when tested, and relies on (c) to keep producers out of jail. Exploiting the ’serious… value when taken as a whole’ phrasing is why Hustler is a good place to keep up with the writing of Greg Palast, and why the big porn movies continue to shoehorn plot, dialogue and music into their movies between the sex scenes. Clause (c) is also why the rise of ultra-violent porn is making conservatives confident they can win an obscenity case. Producers of plotless, music, dialogue and perspective-free porn will have a great deal of difficulty proving ’serious literary, artistic, political or scientific value’ and the violence that accompanies the sex is easy to class as obscene.
For thirty years Miller has served the porn industry well, but thinking Miller will never succeed in proving any pornography obscene is wishful thinking. A 3 minute downloadable clip on a webpage is easy to ‘take as a whole’ and is increasingly likely to show an apparently distressed women being deliberately hurt by a sexually violent man. The government are confident the public won’t view downloadable clips the same way they did movies like Deep Throat in the seventies. They also know that if one judgment goes against porn it’ll put the industry in the same position as the once unassailable tobacco industry - paying fines and under constant, successful assault (the difference being that pornographers will do serious jailtime.)
As some pornography becomes deliberately violent, should people who believe in the right of adults to consume explicit sexual material be forced to defend all material which includes explicit sex in any context? If not - should the porn industry seek to replace Miller with a better, more specific, law which allows the successful prosecution of obscenely violent material and leaves pornographers safe to shoot sex legally?
Looking to other countries for guidance proves interesting. Europe hasn’t decided on how to integrate its sex law - depending on where you travel the age of consent moves between 11 and 18, prostitution is legal - or not, and porn is either freely available or only sold under license. Then there’s Canada.
In 1962 Regina vs. Dominion News & Gifts (Regina’s the state/crown - not a lady who hates porn) established that standards of obscenity in Canada must be national - you can’t be obscene in Toronto and legal in Montreal. Thirty years later, Canada’s equivalent of Miller arrived in Regina vs. Butler (1992).
Butler saw Canadian courts split porn into three categories:
- Explicit sex with violence
- Explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing
- Explicit sex without violence that is neither degrading nor dehumanizing
Material falling into category 1 is almost always found to be obscene, category 2 is considered obscene if the court finds ’substantial risk or harm to society by viewing the material in question’ (a test also applied to material in category 1), and category 3 is almost never obscene (with the exception of material which features children). In Canada an emphasis on freedom of speech means that in cases of doubt, material is found non-obscene.
Butler doesn’t ask jurors to make judgments based on their own opinions. It doesn’t ask if the material offends the jury, or their ‘community standards’, and doesn’t ask pornographers to pretend their producing serious work, its sole focus is the harm that arises from the production or viewing of the material. While leaving ample room for debate Butler recognizes that sex and violence aren’t natural bedfellows and should be considered separately.
With a body in place to ensure porn performers safety (as there are in Hollywood for stunt performers, animals and children) a US law similar to Butler would allow anything to be portrayed in porn (including violent scenes as long as the violence was simulated) and allow pornographers the freedom to produce sexually explicit material, saleable in any state, without fear of arbitrary legal persecution. It would write into law that there’s nothing obscene about consensual sexual activity, and draw a line between porn and exccessively violent material of the kind that already exists between porn and child-porn.
Is something more like Butler the kind of obscenity test pornographers in the US should be lobbying for before Miller inevitably fails us? Would American pornographers embrace the chance to protect performers from material that can only be produced by hurting them? Is Canada wrong and can sex itself (lacking violence) be obscene?
(thanks to my readers for inspiring this post and Paul Kent-Snowsell of AVN Online for providing the facts to flesh it out with. Paul - Yo fo’evah ma nigga.)
While I am hardly a Canadian legal scholar, I’ve done some homework on the MacDworkinites and the consequences of R. v. Butler and as well-intentioned as it may be, I don’t endorse bringing that kind of law to the States. Using Butler, Canada has been able to successfully supress a lot of consensual SM and gay porn that I don’t think pose the problems that you mentioned in your discussion of ‘Donkey Punch’, et. al.
I definitely see where you’re coming from, though. Miller is shaky at best and relying on it for protection is about as useful as Pro-Choicers relying on Roe v. Wade to stand forever. I don’t know, however, that we necessarily want to follow Canada’s lead on this issue.
Before falling in love with the Canadian system, it would be worth spending a little time researching the workings of the various provincial review boards, especially the notoriously conservative Ontario Film Review Boards.
Until their recent suspension pending the outcome of a Canadian Supreme Court case, these bodies exercised complete control over what could be distributed in Canada simply because *no* films, tapes or DVD could be reviewed without undergoing the costly review process for each province in which one wanted to distribute one’s work.
No doubt this system keeps things like “Donkey Punch” from reaching the market, but it also would have kept “Marie and Jack: A Hardcore Love Story” from being sold by Canadian retailers, save the fact that many chose to flout the law for the sake of offering their customers a film they believed in.
Also, there’s no “lobbying” for a replacement for Miller. Miller is a Supreme Court ruling on what limitations the state may impose on speech (broad meaning) that deals with sexually explicit subject. As such, the only way it will be replaced is with a new Supreme Court ruling.
My personal belief is that Miller is absurd on the face (a reading of relevent Supreme Court obsenity case reveals the doubts that nearly all opinions have about whether or not a legally sufficient definition of “obscenity” will ever be found), and have long advocated that it is fundementally in conflict with the 14th Amendment. The judge in Rob Black’s obscenity case seems to agree, citing Lawrence v Tx. in the dismissal.
Lets play Back to the Future. Sam, imagine an alternate reality where the Communications Decency Act was upheld. What does the internet look like? Do you have a job?
Wow. And after all I excised all the ‘Constitution needs serious review’ stuff too….
Tony - fair points. The Supreme Court is lobbied all the time as test cases are started and pushed through the system to hopefully force the review of something controversial. It’s lobbying ‘at’ the Supreme Court I was referring to. They’re doing it now with Roe.
Ellie - you’ve lost me. What does upholding the communications decency act have to do with violence and porn as separate entities?
All - before anyone else makes a similar point. I was not suggesting we all move to Canada, employ their representatives or act as they do. I was suggesting we examine the essence of the law. It’s very possible to write good legislation and implement it badly. More common to try and implement bad legislation well (which brings me to where I started…)
Darcy - Crummy implementation sucks. As does comparing someone with almost a decade in porn (and time on the legal frontline) to a MacDworkinite (does that have cheese?). Any porn that’s not excessively violent shouldn’t be effected by Butler. Consensual SM? Depends on the limits of consent (Okay - I’m ducking now).
Sam - I in no way meant to characterize you as an anti-pornster. But Butler is a direct descendant of MacKinnon/Dworkin-proposed legislation. And while I agree that it’s been poorly implemented, should we realistically expect anything different from the US? Who gets to determine what “excessive” violence is? Or what the limits of consent are, (if you really want to make that argument)?
Darcy - Thanks so much for bringing that up.
Sam - I think the key to making anything like Butler work would be explicitly defining consensual BDSM as not falling under the definition of violence (although I think allowing for simulated violence and then controlling for safety is a good idea). Sure, nobody’s going to mistake a sensual bondage and candle wax scene for violence but caning someone until it leaves red stripes? That’s seen completely differently.
Here’s my novel idea for a one-pronged test:
If, in the absense of a camera, there is no criminal activity, then the use of a camera to record said activity, or the distribution of any resulting images shall not be a crime.
Cool and succinct. Thanks for sharing your prong.
Of course, without the camera, paying the performers becomes a different issue… I’m all for decriminalization but I don’t think we’ll get a twofer.
Also I wouldn’t want to apply that prong to non-staged voyeurism shots, but that’s obviously not what you had in mind anyway…
Tony:
The problem with that is that if you pay your actors, a clever prosecutor will accuse you of having recorded prostitution. Now you’re an accessory *and* you’ve provided him with the evidence he needs to prosecute your actors for prostitution, both in one fell swoop. And it becomes illegal to film anywhere except in certain Nevada counties.
Aristotle, boys, Aristotle.
Oh. Whoa. Sabrina isn’t a boy. Not at all.
Tony I like your thinking. Given laws about abuse and bodily harm, some consensual BDSM could fall foul of existing law. It’s precisely the basis for Britain’s ‘Spanner’ case.
I’m not sure I’m personally convinced that the effect of any material on an audience is zero either (I’ve worked in advertising). You can change the way people think by showing them things and that’s a responsibility. I think claims otherwise are optimistic (and fly in the face of everything we know about TV, elections and the Oscars).
Darcy - thanks for the clarification. Dworkin and MacKinnon aren’t people whose ideas I give much credence to. That said, I’d be as shallow as the people I criticize if I were to claim they never expressed a cogent thought. One of the difficult aspects of being open minded is not being able to dismiss someone’s opinions because 90% of what they say is crap. I didn’t know Butler was written in reference to them but I have to agree sex and violence are different. On a side note - Dworkin couldn’t have been a fan of Butler regardless of her input, a woman who equates penetration with rape can’t have much room for any form of porn.
Thanks for the pair of extremely provocative posts in the last couple days, Sam. Interesting stuff.
I actually think that a decent response to the former will resolve the issues raised in the latter.
Were I a porn studio, my answer to the “Donkey Punch” vids of the world would be this: I would voluntarily put a prominient label on my DVD boxes to the effect that the safety of my performers is of paramount importance to me, and that every effort had been made to ensure same. Indeed, I might use that space to call other studios to put similar lables on their product.
This entirely unilateral self-rating would serve two purposes. First, it would attract the sort of audience that cares about these things, and dissuade the Donkey Punch afficionadoes, who I wouldn’t intend to have as core audience. Second, it would put me in the position of Responsible Pornographer, which is cery much where I would want to be when the Miller hammer inevitably falls.
Sam - You keep saying sex and violence are different and that’s obviously true, but they aren’t totally separate. What about the places where they blur together? What’s the dividing line between BDSM and violence, by your definition? It can’t be consent - presumably the Donkey Punch performers are consenting though I doubt they’re well informed of the risks before consenting. Is it a matter of degree? Risk involved? I’m curious…
“Tony I like your thinking. Given laws about abuse and bodily harm, some consensual BDSM could fall foul of existing law. It’s precisely the basis for Britain’s ‘Spanner’ case.”
And so might have my fucking my wife in the ass prior to Bowers v. Hardwick, or my fucking you in the ass prior to Lawrence v. Texas.
There are lots of stupid laws, but the notion that the photography/distrution of photographs of a non-criminal act can in and unto itself be a criminal has to be amoung the most illogical and infantile on the books.
(I once videotaped a man beheading another man with a machette. This was not a state sanctioned killing, This was an act of incomprehensible barbarism and brutality. For being glory-hungry (or scared shitless) enough to keep my camera running, I was celebrated as a couragous witness and showered with accolades. You can imagine how strange I find it that my honest depictions of very ordinary acts of mutual pleasure are deamed by many to have “no place in decent society”, and could one day result in the loss of my standing, property, and liberty.)
Tony - you were the guy who fucked me in the ass? Thanks for clearing that one up.
(peeks out of foxhole) I’m not advocating ‘Spanner’ - just providing some context. I’m with you, the record doesn’t make the crime. I was jumping ahead and saying that some things which people consent to in private are criminal. The validity of the law’s another debate (poor Kate Moss eh.)
As for the beheading - wow. Rather you than me.
Katie. I’d argue sex and violence are completely separate. You can choose to mix them, as you can choose to mix sex and clothing - but there’s no reason to believe there’s anything unusual in their separation. BDSM isn’t a universal fetish, BD’s a lot more commonly played in than SM (which is truly a niche interest).
I’m a liberal (by US standards I’m a foaming at the mouth commie) and a libertarian. I also believe in society and our responsibility to each other. I don’t think a perfect society consists of people free to do truly idiotic things because they’re their own victim. Some people are mentally ill, or deficient, or ill informed and will make terrible decisions they live to regret….
Okay, I’ll blog a response, you’ve inspired another round of questions and I’m rambling.
“Tony - you were the guy who fucked me in the ass? Thanks for clearing that one up.”
I know, it was dark wasn’t it. Nothing save heat, preasure, and sound. But when we did that phone interview I recognized your distinctive accent imediately!
“I’m with you, the record doesn’t make the crime. I was jumping ahead and saying that some things which people consent to in private are criminal.”
As a culture we are still coming to terms with the startling nature of the photographic image. With the advent of the daguerreotype, the whole of non-photographic art went off the rails and has struggled ever since to be relivant. (Hared to imagine now, but even within my own career there was still “serious” debate as to whether photography, in it’s various incarnations, could be “serious” art, or was merely a high craft.) What a strange spell the camera weaves.
I think the reasons that photographic rendering of nudity and sex are so inflametory is the knowledge that there was a live nake girl on the other side of the image. The picture and the process take on the quality of a portal, or at least a window, and even the most contrived scenarios are a kind of reportage. In my mind sex photography and food photography are at least cousins, and more likely siblings.
Tony - I am so with you on the food photography thing. My sister’s in training to be a chef so we have the “What if food and eating were taboo the way sex and nudity are?” discussion all the time.
Sam - I am the Clark Kent to Katie’s SuperSlut. We’ve never been seen in the same place at once but we both spend a lot of time semiclothed in phone booths.
I’d argue the SM point with you… As far as the more obvious displays, yeah, it’s rarer, but in its most mild forms (biting, scratching, hair pulling) sadomasochistic tendencies can be easily found in intense vanilla sex. Then again, I’m a pervert and I think pencils are designated nipple-poker toys…
One of these days I’ll have to seriously debate with you. I think we disagree on just enough to make it interesting. Now you’ve called me by the wrong name, so that’s my cue to put my pants on and go to sleep…