Libido: Naked Brunch: Un-Banning Books
NAKED BRUNCH
STUDIES IN EROTOLOGY
Preserving America’s Erotic Heritage

UN-BANNING BOOKS
How the courts of the United States came to extend
First Amendment guarantees to include pornography.

By Jack Hafferkamp

In the United States the average interested person, of age, is legally able today to read and view a wide and deep range of sexually charged materials because of the evolution of opinion on obscenity issued by the courts of the United States.

Over the next several issues, LIBIDO presents the history of how American adults earned this right to decide for themselves what to read and see.

In the first installment we take a look at where we are today and define key terms.

Our freedom to read and see sexually charged materials stems from cases involving books that today we celebrate and study as major works of literature in English. These include James Joyce’s Ulysses, D.H. Lawrence’s Lady Chattereley’s Lover, Henry Miller’s Tropic of Cancer, John Cleland’s Memoirs of a Woman of Pleasure, and William Burrough’s Naked Lunch.

Earl Warren

The process of reforming obsolete 19th Century obscenity law crested under that most liberal of Supreme Courts, the Earl Warren Supreme Court of 1953 to 1969. Since then, the process plateaued under Warren Berger’s tenure as chief justice from 1969-1986. Under current Chief Justice William Rhenquist, there has been an uneasy stasis in obscenity law. Attacks on our ability to read and see now come less from direct attacks on now established standards in obscenity law than from attempts to establish new limitations based on so-called decency laws and regulations based on efforts to limit "harm" to women and children.

In 1996, the Rhenquist’s Supreme Court turned back the Communications Decency Act of 1996, which was the first major push to halt sex speech on the internet. But the freedom to read is under threat from new directions, particularly under the cloaks of attempts to enforce "decency" rules and harm to women and children. A prime example is regulation related to guaranteeing the ages of models and performers.

Definitions

To better understand the substance of the history of freeing literature, it is useful to define six terms of primary importance: pornography, prurience, obscenity, hardcore, erotica and decency/indecency.

Pornography -- from the Greek, is literally "the writing of or about prostitutes." In common American usage it broadly has come to mean any writing or images -- either still or moving -- or combinations of writing and images that are meant to arouse sexually.

A student of the term’s meaning soon learns that its use and misuse frequently cloud public discussions and debates of porn and morality, porn and the law, porn and religion, porn and women, etc. You need to know that legally, the term pornography has meaning only in so far as it relates to obscenity. Only "hardcore" pornography can be banned as obscene.

Obscenity -- from the Latin, meaning "dirty" or "containing filth or excrement." Obscenity is the legally significant term used in discussions of pornography. It’s only "hardcore pornography" that is obscene. The trick, of course, is in determining what is hardcore.

James Joyce

Until the 1960s, freedom of expression in America did not generally extend to any overtly sexually related writing or depictions. There were some exceptions, usually related to patent medicines and birth control and contraception information, but generally we can say that before the 1960s, sexually related material, no matter how beautifully written was, by definition, "obscene" expression. The only literary exception was James Joyce’s novel Ulysses. And it was a special case.

Since 1973 we have lived under what is known as the "Miller Standard" for determining obscenity. It consists of three tests. To be obscene, a work’s dominant theme must be prurient, it must offend contemporary community standards and it must lack serious literary, artistic political or scientific value. This is known as the "three-pronged approach" to determining obscenity.

To be legally obscene a work must fail all three of the tests. This means that a work may be sexual in theme and offensive to some people, but if it has "serious" literary, artistic, political or scientific value it can not be banned. In her book Defending Pornography, American Civil Liberties Union President Nadine Strossen notes, with some ironic humor that lawyers refer to the last point the "SLAPS test."

Hardcore -- Is the kind of pornography that, according to the courts, appeals to "sick and morbid" interests, is patently offensive according to community standards and has no serious value. The problem with this concept is that it has no set meaning. One person’s "hardcore," is another person’s light reading. So in current usage the term "hardcore" means many different things, each with its own political overtones, depending on who is using it.

Prurience -- From the Victorian Era to the Vietnam Era, the U.S. Supreme Court defined as prurient any material that tended to excite lustful thoughts. If it turned you on, it was prurient. And that is the way most people, and especially social conservatives, continue to think of prurience.

However, in the Lady Chatterley’s Lover case in the 1960s, the court made an important distinction between a normal, healthy expression of sexuality, and material that appeals to a "sick and morbid" interest. Nonetheless, the problem of deciding what is "sick and morbid," is another sliding scale, and it becomes even more confused when questions of community standards of obscenity are involved.

Erotica -- At this moment at the start of the 21st Century there is a profusion of "erotica" in book stores and movies and on TV. A question often asked is "What’s the difference between pornography and erotica? And the answer is basically "What I like is erotica; what other, less cultured people like, is pornography."

The term "erotica" has no meaning legally. But popularly it means "high class" pornography. For some, at both ends of the porn-debate, there is no difference between pornography and erotica because both are prurient. However, I believe the term can usefully be used to differentiate between demeaning, misogynistic, misleading and emotionally numbing types of sexually charged material and more enlightened, consensual, celebratory, tolerant and educational sexual depictions. In this sense erotica at its best provides insight and inspiration. This is culturally valuable.

Decency/indecency -- are terms that comes up a lot today -- especially in terms of the internet, where the battle lines formed around banning so-called "indecent" material that is taken to be dangerous because it is harmful to children.

In general, indecency has to do with not conforming to a community standard of propriety or modesty. Pro-censorship activists use the term as an alternate to obscenity, because they haven’t been able to budge the courts on obscenity grounds. Thus decency was a term used specifically in the Communications Decency Act of 1996, which set severe penalties for first-time offenses, including prison terms.

The CDA defined indecency as "any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

The CDA was -- as you’ll see -- a very loud echo of the 19th century, as is the discussion of harm to women and children. The United States Supreme Court voided the Communications Decency Act in 1997, but that it got as far as it did, shows just who is on the offensive when it comes to First Amendment Freedoms.

Copyright 1996
All rights reserved

For information on reprinting this series for classroom use, please contact us at editor@libidomag.com, or phone 800-495-1988

Part 2: From Benjamin Hicklin to Margaret Sanger
Part 3: The Little Review and James Joyce's Ulysses
Part 4: Samuel Roth to Henry Miller
Part 5: The "Brennan Doctrine"