Law in the Electronic Brothel: How Postmodern Media Affect First Amendment

Publication year1991
CitationVol. 15 No. 02



Law in the Electronic Brothel: How Postmodern Media Affect First Amendment Obscenity Doctrine

Kenneth W. Masters(fn*)

I. Introduction

Since 1989, several interesting and innovative works have probed the relationships among electronic media(fn1) and various legal doctrines.(fn2) These works examine the past, the present, and the possible future effects of modern media on the law.(fn3) They attempt to explain the effects of modern media on the law and society. As such, they are both legal scholarship and media ecology.(fn4)

More specifically, these works probe the relationships among media, messages, society, and the law. In so doing, they use several models to illuminate the ways in which changes in communication technologies have changed society and its legal systems. This Comment applies three of these models to the legal doctrines addressing depictions of sex.(fn5)

The application of these models to obscenity doctrines in general, and to the case of Skyywalker v. Navarro(fn6) in particular, reveals the tentative status of current obscenity doctrine. The doctrine fails to account for the pervasive effects of media on society. This failure results in the inability of the doctrine to provide a coherent basis for careful First Amendment analysis. Consequently, the First Amendment is being debased: it is becoming both ineffective in controlling depictions of sex and also ineffective in controlling censorship. Thus, the models reveal that the First Amendment is in danger of collapse.

One such model examines the historical relationships between changes in media and changes in society and its legal systems. Through such historical examinations, this model attempts to account for previously unrecognized and unexamined assumptions that may be sources of confusion in current legal thinking.

Another model used by these works to examine the effects of media on the law is the development of broad-based heuristics. A heuristic is both a system for organizing thought and a model for stimulating thought. The application of these models to current legal doctrine reveals discontinuities that may have developed between legal theory and the real world. Such discontinuities stem from a general failure to examine the effects of media on the law itself. By clarifying the pervasive ways that media affect legal doctrines, such heuristics may help courts and scholars to develop legal theories that will more accurately reflect the real world.

A third model for examining the relationships between law and media applies specific media theories to the facts of a case. This narrowly focused approach contrasts with and adds to the broader heuristic approach described above. By specifically analyzing the effects of media in the context of particular cases, this third model illuminates gaps in courts' reasoning caused by their failure to understand media effects. By elucidating these effects, this model may facilitate more careful analyses by the courts.

Thus, this Comment seeks to examine the implications of media ecology models for the past, present, and possible future of obscenity doctrine.(fn7) Section II of this Comment applies the first model in examining the historical origins of obscenity doctrine in light of media ecology.(fn8) This analysis of history reveals a critical presupposition about the effects of media on human behavior.

Since the Middle Ages, the ability of words to affect human sexual conduct has been presupposed.(fn9) However, no one has convincingly demonstrated a causal connection between depictions of sex and sex crimes.(fn10) The assertion of such a connection may have developed as a result of the Catholic Church's struggle to control the written word.(fn11) In spite of this lack of empirical evidence supporting a causal connection between pictures of sex and sexual violence, courts have adopted this presupposition wholesale.(fn12) Thus, courts are perpetuating the presupposition as a legal presumption and, thereby, perpetuating confusion in legal thinking about sexually explicit materials.

To say that the courts have adopted the Church's presumption wholesale is not, of course, to say that such adoption is intrinsically "bad." However, the presumption fails to explain why obscenity is "harmful" and "worthless."(fn13) Seen in the light of media ecology, the historical development of obscenity doctrine(fn14) reveals that the absence of explanation lies, at least partially, in the development of the media vised to carry such messages.

In Section III, this Comment next applies the second model; the current test that courts use to determine whether an expression is obscene is examined through two broad media theory heuristics: the Paratroopers' Paradox(fn15) and the absorption theory.(fn16)

This Comment also applies the third model; Section IV examines media effects within the context of recent cases by applying specific media ecology theories to those facts. This application reveals the inability of current obscenity doctrine to facilitate careful and insightful analyses. By failing to account for the effects of media on the messages being analyzed, courts reach self-contradictory and untenable conclusions. This application also demonstrates the benefits of a careful examination of media effects within the context of obscenity analysis.(fn17)

II. The History of Obscenity Law and its Relation to Changing Media(fn18)

Sexually explicit works have existed in the Occident at least since the Golden Age of Greece.(fn19) However, common law regulation of obscenity did not begin until the late eighteenth and early nineteenth centuries.(fn20) As Justice Douglas repeatedly noted in dissent,(fn21) obscenity in literature was considered a matter for the ecclesiastical courts until the second half of the nineteenth century.(fn22)

Prior to the development of the printing press in 1450, "scarcity and obscurity provided all the necessary safeguards" against widespread access to sexually explicit works.(fn23) The few transcriptions of texts were written slowly and exclusively by hand. Scribes were among the few who could read what was written. Because they learned their skills from the only school available, the Catholic Church, scribes rarely transcribed anything sexually oriented.(fn24) Thus, the Church effectively maintained control over access to sexually explicit materials.

As the print medium expanded, however, the leaders of the fifteenth-century Catholic Church recognized that the printed word presented a threat to the Church's control over hearts and minds.(fn25) Consequently, Church leaders perceived any messages conveyed through this new medium as dangerous to the extent that such messages threatened the Church's control.(fn26) Sexually explicit messages, therefore, were specifically regulated only to the extent that they were combined with messages that were politically dangerous.(fn27)

Within one hundred years after the advent of the printing press, the Church had determined that the printed word could corrupt the morals of its followers and had begun to control access to all types of printed works.(fn28) For example, in 1564, the Council of Trent published Pope Paul IV's ten rules for controlling literature in the Index of Forbidden Books; rule number seven forbade obscene books that might corrupt morals.(fn29) The Church failed to enforce these rules, however, perhaps because the Church was more interested in prohibiting dissemination of vernacular bibles.(fn30)

Similarly, the mid-sixteenth-century English government made no major attempts to control sexually explicit materials. However, because the government, like the Church, recognized the power of the word, it did manifest some desire to control the word through licensing statutes. These statutes prohibited plays that dealt with politics or religion in an unsatisfactory manner. In addition, a historical inversion of censorial concerns regarding political speech on the one hand, and obscene speech on the other, began to develop around this time.(fn31) As sexually explicit materials that had been reserved to the elite literate class became more accessible, the government gradually began to regulate them.(fn32)

Well into the late seventeenth century, the government asserted little control over sexually oriented materials and simply allowed the English licensing acts to expire. In addition, writings like those of Locke and Spinoza, calling for religious toleration and for the separation of politics and religion, began to influence political thought and institutions. Thus, until the eighteenth century, control of sexually explicit materials remained with the religious institutions.

Although the term "obscene" was used in the context of common law libel cases beginning in 1726,(fn33) no definition of the term was provided. Prosecutions were limited to cases of libel, or "obscene libel," and to cases involving obscene conduct in public places.(fn34) Punishment for obscenity was thereby limited to attacks on others' reputations-reputations that could only develop and spread in the context of the printed word.

In the late eighteenth century, an explosion of mass publication occurred as commercialism and commodification(fn35) combined with mass printing technologies.(fn36) Since that time, a heated battle has raged...

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