Pornography

• Author: Catherine Hancock
• Pages: 1965-1966

Page 1965

The Supreme Court's OBSCENITY decisions define the forms of pornography that are protected from censorship by the FIRST AMENDMENT. As a practical matter, this protection is quite broad. Most pornography is also a unique kind of speech: about women, for men. In an era when sexual equality is a social ideal, the constitutional protection of pornography is a vexing political issue. Should pornographic imagery of male dominance and female subordination be repudiated through censorship, or will censorship inevitably destroy our commitment to free speech?

In ROTH V. UNITED STATES (1957) the Court found obscene speech to be unworthy of First Amendment protection because it forms "no essential part of any exposition of ideas." Yet precisely because of pornography's ideational content, some of it was deemed harmful and made criminal. The Court could avoid examining the specific nature of this harm, once it had located obscenity conveniently outside the constitutional pale. But it could not avoid defining obscenity, and thereby identifying the justification for its censorship.

The essential characteristic of "obscene" pornography is its appeal to one's "prurient interest," which is a genteel reference to its capacity to stimulate physical arousal and carnal desire. But such pornography must also be "offensive," and so, to be censored, sex-stimulant speech must be both arousing and disgusting. The meaning of offensiveness depends upon the subjective judgment of the observer, and is best captured by Justice POTTER STEWART'S famous aphorism in JACOBELLIS V. OHIO (1964): "I know it when I see it."

Given the limitations of the criminal process, obscenity laws did not make offensive pornography unavailable in the marketplace. As HARRY KALVEN, JR. , pointed out, few judges took the evils of obscenity very seriously, although constitutional rhetoric made the law appear to be "solemnly concerned with the sexual fantasies of the adult population." The Court's chief goal was the protection of admired works of art and literature, not the elimination of pornographic magazines at the corner drug store. Sporadic obscenity prosecutions may occur in jurisdictions where the "contemporary community standard" of offensiveness allows convictions under MILLER V. CALIFORNIA (1973). But the constitutional validity of a legal taboo on "hard-core" pornography became largely irrelevant to its suppliers and consumers, even as that material became...