Playing by pornography's rules: the regulation of sexual expression.

AuthorCole, David

Introduction

Sometimes a sentence is worth a thousand words. In 1964, as the Supreme Court stumbled toward a constitutional approach to obscenity, justice Potter Stewart suggested that only "hard-core pornography" should be suppressed.(1) He admitted that the category may be incapable of "intelligibl[e]" definition, but nonetheless confidently asserted, "I know it when I see it."(2)

Justice Stewart's sentence captures the essence of the Court's sexual expression jurisprudence, which rests more on the assertion of distinctions than on reasoned analysis. For many years, the Court, unable to agree upon a doctrinal framework for obscenity regulation, simply ruled by per curiam judgments, without offering any explanation for what it was doing.(3) When the Court did attempt to explain its actions, some suggested that it would have been better off maintaining its silence.(4)

The Court has now put forward a set of doctrinal "rules" that in the end do little more than obscure what is basically Stewart's intuitive approach. In defining obscenity, the Court has advanced an incoherent formula that requires the application of "community standards" without any specification of what constitutes a "community";(5) the identification of national "reasonable" judgments about artistic and literary taste, a subject on which reason may be of little guidance and on which the nation is likely to have no consensus;(6) the differentiation of healthy from "shameful or morbid" sexual interests;(7) and the determination that speech is "patently offensive,"(8) a judgment which is nonsexual circumstances is a reason for protecting, not criminalizing speech.(9)

Even where speech is not legally obscene, the Court permits the government to regulate "offensive" sexual speech in ways that it could not regulate "offensive" political speech.(10) The "offensive speech" doctrine has developed, moreover, without any attempt to define what constitutes "offensive speech." If the "obscenity" doctrine rests on a definition that is internally incoherent, the "offensive speech' doctrine rests on no definition at all.

The claim that speech can be suppressed because "I know it when I see it," even if what the Court sees and knows cannot be intelligibly articulated, implies a peculiar relationship between the Court, the law, the community, and sexual speech. Ordinarily, attempts to regulate speech because of its content are subjected to exacting judicial scrutiny and require a compelling justification. When it comes to sexual expression, however, the state is not obliged to offer a compelling rationale, and the Court's decisions proceed by assertion rather than by logical reasoning. Like Justice Stewart's claim, the Court's doctrine suggests that sexual expression can (and perhaps must) be regulated by law even if (and precisely because) it is beyond reasoned discussion.

The peculiar relationship between law and sexual expression is perhaps best exemplified by the Indiana statute upheld in Barnes v. Glen Theatre, Inc.,(11) which required otherwise nude dancers to wear pasties and G-strings. At first glance, the law, upheld as a legitimate effort to shore up community morals, appears to serve little, if any, moral purpose; an exceedingly fine line distinguishes the wholly nude dancer from one attired in accordance with Indiana law. Indeed, for many, the scant covering required would likely make the dancers more sexy, not less.(12) Indiana's insistence that this line be maintained - and the Court's approval of that line - suggests that what is ultimately at stake is not the prohibition of sex itself, but the assertion of the right (and capacity) to control its public representation.

Barnes reflects one of the most curious features of the regulation of sexual expression: at least as a matter of doctrine, public representations of sex are more subject to regulation than sexual behavior. This reverses the usual relationship between conduct and expression. While it is illegal, for example, to rob a bank, it is not illegal to publish a novel or make a movie about robbing a bank. Scholars and jurists have long debated over the precise point at which advocacy of illegal conduct should lose its First Amendment protection, but no one denies that a novelist, filmmaker or playwright has the right to depict illegal acts. Central to the First Amendment tradition is the notion that one has broader freedom in one's expression than in one's acts.

When it comes to sex, however, the rule is reversed. While sexual conduct is far from unregulated,(13) constitutional law permits more extensive regulation of the public representation of sexual behavior than of the behavior itself As construed by the Supreme Court, the First Amendment not only fails to protect representations of illegal sexual conduct; it permits the state to criminalize the representation of sexual conduct that is itself legal to engage in. Obscenity doctrine, for example, permits the proscription of prurient depictions of 'patently offensive' sexual conduct, whether or not the underlying conduct is (or could be) unlawful. Similarly, while private nude dancing has never been banned, its public display may be extensively regulated.(14)

This Article seeks to address the questions raised by justice Stewart's sentence, Barnes's image, and our culture's obsession with regulating the public representation of sex. Part I argues that the conventional justifications for permitting the regulation of sexual expression - that sexual expression is not political, and is more akin to conduct than speech - are inadequate because they rest on overly simplistic notions of both sexuality and speech, and are contrary to core First Amendment principles.

In Part II, I suggest that the answer to why representations of sexual conduct are more subject to regulation than sex itself lies in the demarcation between public and private spheres. Laws regarding sexual expression focus primarily on keeping sex out of the public sphere. Society targets for repression those who challenge the public/private line by making public sexual matters that the majority would prefer remained private. In fact, for some the essence of the obscene is its "publication" of private sexuality. The Court's sexual speech doctrine adopts and reinforces this public/private line. Obscenity in the home, for example, is constitutionally protected,(15) while the sale or transportation of the same obscenity may be criminalized.(16)

Through a close reading of Barnes, Part II then suggests that the Court's obsession with preserving the public/private line in sexual speech is not only contrary to, but has actually inverted two of the most basic principles of First Amendment jurisprudence. Ordinarily, the selective regulation of public conduct triggers heightened First Amendment scrutiny because it indicates an attempt to stifle communication; here, regulation of public conduct is permitted precisely because the conduct is public. And ordinarily the fact that the majority finds particular speech offensive is a reason to protect it; when it comes to sexual expression, however, community offense is the justification for suppression. I point to these inversions not so much to offer a doctrinal First Amendment defense of sexual speech - although I think a strong defense can be made - as to suggest that something else is going on. Analysis of the regulation of sexual expression must extend beyond doctrine to a cultural examination of the regulatory imperative.

Part III therefore asks why society places such emphasis on drawing public/private lines in matters of sexual expression. In part, no doubt, enforcement of these lines provides the illusion that we can control sexuality, a matter always in doubt. But where prior accounts have stressed the effects that sexual repression and regulation have on the maintenance of social order, power, and productivity, I suggest that we consider the effects that such regulation has on sexuality itself

Sexual expression, I propose, inevitably confounds society's attempts to regulate it. It subverts every taboo by making it a fetish. The forbidden is simultaneously eroticized. As a result, attempts to regulate sexual expression are doomed to failure; by creating taboos to transgress, regulation only adds to sexual expression's appeal. At the same time, by obsessively seeking to regulate and control sexual expression, we construct a sexuality that is in turn obsessed with transgression and taboo, often to the exclusion of other values. Our regulations endlessly reproduce a pornographic conception of sexuality, which in turn limits our ability to remake sexuality in a different light. Thus, those who are critical of the pornographic character of American sexuality - whether from an aesthetic, moral, or feminist perspective - may only reinforce that character if they continue to insist on a strategy of suppression.

  1. Regulating Sexual Expression:

    The Traditional Justifications

    Two principal justifications have been advanced to explain why government should have a freer hand in regulating sexual expression than in regulating most other forms of expression. The first asserts that sexual speech is categorically different from political speech, and therefore of low value. The second claims that sexual expression is closer to conduct than speech, either because it fails to appeal to the intellect or because it subordinates women, and therefore does not deserve the full protection accorded other modes of expression. Neither justification is sufficient to explain the reduced constitutional status of sexual speech.

    1. Sex and Politics

      The central focus of the First Amendment tradition has been political speech. First Amendment lore begins with the criminalization of criticism of the government in the Sedition Act of 1798, which President Jefferson soundly repudiated by pardoning all convicted under it.(17) The first important speech cases decided...

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