SHOULD CHANGING CULTURAL STANDARDS ALSO CHANGE THE WAY THAT WE EXAMINE OBSCENITY AND THE FIRST AMENDMENT?

By Annamarya Scaccia, 2011 Jennings Fellow

In early April, 42 senators from both Republican & Democratic parties sent a letter to Attorney General Eric Holder calling for amped-up efforts in the federal prosecution of hardcore adult pornography. This comes on the heels of the dissolution of the Obscenity Prosecution Task Force—a second Bush-era group formed to appease conservative cries over sexually-explicit obscenity (in other words: hardcore pornography)—into the Child Exploitation and Obscenity Section.

"The need for consistent and vigorous enforcement is even greater today because both obscene pornography and evidence of its harms have multiplied since then," they wrote. "Simply put, we know more than ever illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse."

To back of these assertions, the senators cite studies claiming consenting adult sexual conduct -- or, as they put it, "illegal adult obscenity" -- is a catalyst for violence. But there's fault with these sources: they only show correlation and not causation. As sexuality/ HIV educator and counselor Charlie Glickman wrote in a June 2010 post, it’s difficult to discern from research if frequent pornography consumption increases sexual aggression. "There’s no way to tell from this research what the causal links may be. Porn use could increase aggression, aggression could lead to more porn watching, they could both be the result of another set of factors, or all of the above," Glickman wrote. "Different people have different experiences, so of course, porn has different effects on different people."

What's more problematic is the claim that adult pornography contributes to harm to children. Former obscenity prosecutor and Morality in the Media head, Patrick Trueman

suggested to POLITICO in an April 16 article that the increasing number of child pornography cases is linked to the government’s failure to prosecute adult pornographers. The Justice Department sees it differently, asserting in its formal response to the senators' letter that they’ve charged 150 violations of federal obscenity laws in nearly three years. Additionally, the Justice Department holds child pornography as the bigger priority, writing in the letter that its "limited investigative and prosecutorial resources on the most egregious cases, particularly those that facilitate child exploitation and cases involving the sexual abuse of children."

But there's something deeper to this war on adult pornography than “morality vs. reality.” It's also an issue of constitutionality. Since the late 19th century, adult pornography has fallen under the obscenity standard first established in Rosen v. United States. The 1896 case, which saw Lew Rosen convicted to 13 months hard labor and a $1 fine for allegedly mailing a 12-page paper deemed "obscene, lewd and lascivious," adopted the obscenity standard decreed in the British case, Regina v. Hicklin, which defined obscene material as that which tended "to deprave or corrupt those who minds are open to such immoral influences, and into whose hands a publication of this sort may fall," any of which could be banned under that basis. This definition first changed in 1957 in the landmark combined case Samuel Roth v. United States and David S. Alberts v. California, which challenged that the federal obscenity clause violated the First Amendment's freedom of speech and press clause (Roth) and the obscenity provisions of the California Penal Code violated the 14th Amendment's due process clause (Alberts) (Roth and Alberts both conducted businesses where they sold and sent sexually-explict publications, of which they publicized through circulars and advertisements). The constitutional test -- and both convictions -- were upheld by the Supreme Court, and was redefined to say that, in order to determine obscenity unprotected by the First Amendment, the entirety of the material must lack any "redeeming social value," "must speak to prurient interest in sex" and found by the courts to be "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters."

While sex is not synonymous with obscenity, pornography often falls under the obscenity clause, although its constitutionality converges between personal in-home possession and distribution/sale. As founded in the 1969 Stanley v. Georgia case, while adult pornography is legal, it's not unconstitutional for the government to prohibit it, while personal in-home possession of pornography may not be prohibited by law as, wrote Justice Thurgood Marshall, "if the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." Still, its constitutional protection was again asserted in the 1973 case, Marvin Miller v. California. Like Alberts, Miller ran a mail-order business selling sexually-explicit adult material in California, and was convicted of violating the state's obscenity provision. He appealed this decision and the conviction was affirmed.

Nevertheless, the courts again redefined the test of obscenity, and the current standard now used by state courts, known as the Miller test, uses the following benchmarks (this test does not apply to child pornography as it's considered illegal and not protected by the Constitution):

• "‘The average person, applying contemporary community standards’ would find the work, as a whole, appeals to the prurient interest."

• "The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law."

• "The work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

This standard is a point of contention for the adult industry and free speech activists, who, according to the POLITICO article, argue that "material produced by and for consenting adults does no harm."

In the same article, Diane Duke of the Free Speech Coalition asserted that the dissolution of the Obscenity Prosecution Task Force was a "very smart and pragmatic move" and called the rally cry to prosecute adult pornography "a witch hunt against folks in the industry." While such a statement may seem extreme, it's hard not to seriously consider Duke's point. After all, the visibility and accessibility to sex has changed since the 1970s, finding its way television and movies more than ever before, like on ABC's Grey's Anatomy, CW's Gossip Girl, HBO's wildly popular Sex in the City. According to a 2009 paper published in the International Journal of Law and Psychiatry, "sexual erotica has not only widespread personal acceptance and use but general tolerance for its availability to adults," while there is general consensus against sexually-explicit material involving children. Also, the 2008 Self-Perceived Effects of Pornographic Consumption study found that the majority of Danish women and men between 18- and 30-years-old surveyed believed hardcore pornography has positively affected different aspects of their lives, including "sexual knowledge, attitudes toward sex, attitudes toward and perception of the opposite sex, sex life, and general quality of life."

So, when we consider the purpose of the senators' letter and the disbanning of the Obscenity Prosecution Task Force, we should keep in mind the following questions:

Since the visibility and accessibility of sex has changed in the last three decades, should all types of adult pornography still fall under the obscenity clause?

What types of adult pornography should always be considered obscene?

Is the Miller test still relevant? Should it be redefined the reflect modern opinion as expressed in the 2009 paper, and if so, how would it differ from the current standard?

Is the findings in the 2008 paper enough for United States courts to reevluate the benefits or artistic values of adult pornography and afford it protection under the First Amendment?

Should the free speech clause of the First Amendment include sexual expression and empowerment?