The Radical Center
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The Radical Center

Defining the Undefinable: Obscenity

Liberal capitalism lead to an increase in tolerance and sexual freedom. In doing so the issues of obscenity and pornography could not be avoided. In country after country some individuals have expressed horror, shock, outrage, anger and a host of other negative emotions over the fact that sexually explicit books, photos, or films are available to other people. Some have done this because they believe such films to be immoral and sinful. Generally these have been people of strict religious views. Others have opposed pornography because they say it is degrading to women and places them in an unequal social position to men. This, of course, has lead to an unusual alliance of statist feminists and fundamentalist Christians: both intent on stomping out what they define to be obscene or pornographic.

But here lies the problem. Like most people they say the obscene is pornographic and what is pornography is obscene. But the procensorship forces do not generally define their terms. When they do attempt to give some sort of meaning to these words they often use such vague and general terms that even accepted works of great art could be banned. For instance, many Christians would ban anything portraying sex. And some feminists, such as Dworkin, would ban anything they believe doesn’t correspond with their philosophical viewpoint on women.

But neither are the anticensorship forces immune from this definitional problem. Over the years it has become apparent they use the word “censorship” as a catch-all phrase to describe very different behaviors. If people march into an art gallery and destroy paintings they say that’s censorship. But they use the same word to describe video shops which choose not to stock specific tapes. Yet these two actions are as different as night and day.

Before any rational discussion concerning these concepts can take place the terms must be defined. Without definition communication is impossible. In the debate over pornography terms are usually left undefined or, at best, loosely defined. This leads to confusion and contradiction.

The history of censorship has been the history of confused definitions and absurd applications. US Judge Curtis Bok said, “To come to grips with the question of obscenity is like coming to grips with a greased pig.” US Supreme Court Justice Douglas stated “Obscenity — which even we cannot define with precision — is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”

Ayn Rand discussed the attempts to define obscenity and noted:

The adjectives ‘prurient,’ ‘lustful,’ ‘lascivious,’ ‘lewd,’ etc. are repeated over and over again in court decisions in obscenity cases, as if these adjectives were clear, sufficient definitions. But if you want to make a linguistic experiment, look up the definitions of these adjectives in a good unabridged dictionary. You will find yourself on a hopeless chase, being pushed from one word to another to another, in as bad an example of circularity as any which a class in freshmen logic would teach you not to commit…

In 1952, ten years before Miss Rand’s comment, a police officer told a US House of Representatives Select Committee on Current Pornographic Materials:

I took the trouble before coming down here of looking up the definitions of “obscene,” and it says “lurid, lascivious, indecent.”

I looked up the word “indecent,” and they referred back to “obscene,” and so on. They could have simply just used the word “obscene” and left the other out.

The thing is so nebulous that we, as law-enforcement officers, don’t know whether we are coming or going.

Justice Brennan concurred with these opinions and said, “any regulation of such material with respect to consenting adults suffers from the defect that ‘the concept of obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials”.

One attempt to define terms was made by Wendy McElroy in her book XXX. Her views are a decent starting point for any discussion:

The process of defining a word involves analyzing it in several ways:

What is the genus? That is what is the general class or category to which the word belongs? In ‘pornography is sexually explicit literature,’ the term literatureis the genus. It is the wider category to which pornographybelongs. Once the broad context for pornographyhas been established, the process of definition becomes a matter of narrowing things down. The next question becomes:

What is the differentia?That is, what distinguishes pornography — from all other forms of literature? What essential characteristics make pornography different from murder mysteries or historical novels?

McElroy, using this as her foundation, defines pornography as “the explicit artistic depiction of men and/or women as sexual beings.” Her genus is “the explicit artistic depiction” and her differentia is “of men and/or women as sexual beings.” Pornography is different, in her view, from mystery stories because it emphasizes human sexuality.

I would define it differently. I would say pornography is the “depiction of humans as sexual beings” or the depiction of human sexuality. McElroy wants to avoid this broad a definition because it would include Freudian works on the psychology of sex. But I don’t see a problem with saying that such material is pornographic. I leave out the word explicit, which she uses, since that is clearly a value judgment. Some people would say any photo showing a glimpse of the naked body are explicit where others use the phrase to mean sexual arousal. So I would argue a work could be pornographic without being explicit. A nude photo of a man might be pornographic. If he had an erection I would say it was explicit but a simple nude photo to me is not explicit. Because of this subjectivity I don’t see it as necessary or useful to use the word explicit in our definition.

If by pornographic we mean material with a sexual content we are not passing any judgment on the material. We are simply describing it. The reason, I think, McElroy wishes to avoid using the word pornographic so broadly is because so many people use this word interchangeably with the word obscene. In many circles to proclaim a work pornographic is to proclaim it obscene. This has only confused our terminology and made it difficult to discuss the subject. We cannot use two words with different meanings to describe the same object.

I remember that a book written by a well known fundamentalist Christian proclaimed Michelangelo’s magnificent statue of David was pornographic. At the time I read this I was shocked and horrified that one of the greatest pieces of art in the history of the human race could be deemed pornographic. But at the time I assumed pornography was the same thing as obscenity. I can see the work portrays ideal man as a noble, self assured, and beautiful creature. For that reason I consider it on of the greatest works of art ever produced. Yet, it portrays the splendor of physical man. Michelangelo, as a gay man, must have seen the work as erotic as well. While not explicit the statue portrays man as an object of sexual desire. In this sense it is also pornographic.

Let me give two examples of how the words “obscene” and “pornography” are erroneous used interchangeably. Prof. Joanne Fedler, of the Law School of the University of the Witwatersrand in South Africa, is a well known discussant concerning pornography. She says, “I think I have come to the conclusion that it is epistemologically impossible to define pornography.”

Her comment about the impossibility of defining pornography doesn’t stop her from discussing it. What is difficult to understand is how it is possible to exert so much energy discussing what you can’t define. And her discussions are not limited to an attempt to find a definition. She spends a great deal of time using statements that clearly indicate pornography is something specific which does specific things. Yet she leaves us without a working definition. Listening to Fedler is like listening to someone lecture about “rilbats” without ever telling us what is a rilbat.

Someone who would philosophically be the opposite of Fedler is Tibor Machan, a philosopher who has written some important works dealing with issues of human rights. Machan challenges the view taking by Fedler. In his generally excellent book Human Rights and Human Liberties he says many left-liberals defend free speech “on the alleged inherent impossibility of identifying obscene or pornographic material.”

Machan says it may not be easy to identify such material but it is possible. He wrote:

…we can know what is obscene, and often enough we do. People may not often be able to explain just how they know it, nor what implicit definition of obscenity guides their judgment. ….In fact, obscenity is a normative category — it serves to attribute to various forms of human creation an aesthetic quality.

Machan goes on to note that many people say there is no objective standard in art “for judging something good or bad, beautiful or ugly, degrading or dignified. Yet this does not demonstrate that artistic standards do not exist, could not be identified. In morality, as in art, standards are difficult to identify and, especially, to justify. But none of that shows that standards are impossible.”

Machan and Fedler are committing the same error. They both are saying pornography and obscenity are identical. The fact obscenity is difficult or impossible to define is what is behind Fedler’s statement that pornography can’t be defined. Machan, who is usually a much more consistent and logical thinker than Fedler, out rightly uses the two words as synonyms. After dismissing the claim one cannot define the terms Machan unfortunately neglects to offer any definition of his own.

These words can be used just not interchangeably. Pornography is a word used to describe a specific kind of art. It is an objective state based on the nature of the art. If the emphasis of the item is on human sexuality then it is pornographic. But obscenity is an entirely different kettle of fish altogether. Where the word pornographic is objective the word obscene is subjective. The first describes a class of art while the second expresses a personal evaluation of that art.

Machan, who was strongly influenced by the ideas of Ayn Rand, is using her view of art as a launching pad for his argument, though he doesn’t expressly say so. Rand argues art can be rationally defined and thus it is possible to pass judgment on whether or not a work of art is good or bad. She would argue all art is a selective recreation of reality according to the metaphysical values of the artist. I have no problem with this definition. She would also argue values can be rationally determined and therefore it is possible to determine what is good or bad art. Again I don’t have a problem with this.

Using Rand’s Objectivist theory of art pornography is a class of art. In most cases porn would be classified as bad art by Randian standards. Rand would argue the values portrayed in most pornography are not good values and that is what makes it bad art. She also argued it should not be censored and strongly defended the right of people to be “bad” artists. Just as one would have the right to write a bad novel one would have the right to produce “bad” pornography.

Machan unfortunately uses the subjective evaluation of obscenity interchangeable with the objective classification of pornography. Obscenity is personal and subjective where pornography is not. Anything sexually oriented is pornographic. But the pornographic may or may not be obscene depending on the evaluations of the consumer. This may sound a bit confusing but it actually makes a great deal of sense. And using a food analogy may help clarify issues.

Food, like pornography, is an objective classification. Food is any substance that we eat or drink which sustains life or growth. The genus is the “substance that we eat or drink” while the differentia is “which sustains life or growth.” So arsenic is a substance which we could eat but not something that would sustain life, therefore it is not a food. Some foods perform their function better than others. Fruits and vegetables sustain life better than candy bars and pastries. But they are all food.

One problem we have is discussing these issues is a deficiency in the English language. English uses the word “good” in several ways. One use of the word describes a subjective, personal evaluation as in “the cake tastes good.” Another is an objective moral evaluation as in “it is good to eat healthy food.” So we can properly say in English that “The chocolate cake is good (in taste) but not good (for your health).”

When we use the word obscene we use it in a personal, subjective sense and not an objective one. Obscenity is not objective by any means. The dictionary defines obscene as something “disgusting and offensive.” But this clearly implies disgusting and offensive to someone. Few of us can agree on what is offensive and disgusting. There is no objective method to determine levels of disgust or offense. In this sense saying “that is obscene” is like saying “that is awful pudding.” Your individual taste buds and preferences determine the “goodness” of food. In a similar way subjective factors determine what you find obscene.

Some people find anything which depicts human sexuality to be obscene. They are disgusted by sex. I find many things obscene but little of it has to do with sex. I find violence obscene. I find political corruption obscene. Human copulation and such things don’t disgust me. By my standards they are not obscene. To me there is no such thing as “good” chili because I dislike foods that are heavily spiced. Others would only classify chili as good if it’s extremely spicy.

There is such a thing as junk food. Candy, cake, etc. are objectively classified as junk food. Machan and Rand would classify certain books, films, and paintings as “junk” art. Pornography is a classification of art. And it may well be bad art. But it is not objectively obscene. To use the word obscene as synonymous with porn is like using the word junk as synonymous with food.

Judge Bok in Commonwealth v. Gordon said this:

It is impossible to say just what his [the average modern reader’s] reactions to a book actually are… If he reads an obscene book when his sensuality is low, he will yawn over it…If he reads the Mechanic’s Lien Act while his sensuality is high, things will stand between him and the page that have no business there. How can anyone say that he will infallibly be affected one way or another?…The professional answer that is suggested is the one general compromise — that the appetite of sex is old, universal and unpredictable, and that the best we can do to keep it within reasonable bounds is to be our brother’s keeper and censor, because we never know when his sensuality may be high. This does not satisfy me, for in a field where even reasonable precision is utterly impossible, I trust people more than I do the law.

One of the most interesting discussions of how obscenity and erotica are personal, subjective evaluations was made by Ben Ray Redman in 1930 in Scribner’s Magazine.Redman argued censorship cannot stamp out obscenity because obscenity does not reside in objects, but in people. People evaluate something as obscene and thus to them it is. He said:

…it is inconceivable that any sex-censorship can ever be effective, for the simple reason that such censorship must seek to control an uncontrollable force by the futile expedient of eliminating external stimuli that are infinitely replaceable. Its impotence resides in the fact that it can only do away with certain specific stimuli that it considers evil; it cannot diminish the desire for stimulation, and so long as that desire exists a dozen new stimuli can be found to take the place of every one that has been removed. The sex-censor fights against the growing grass, and he can never number his enemies until the sand of the sea are counted grain by grain. His ideal could be realized only by destroying sex itself; in other words, by destroying life…

…Growing boys get a great “kick” from obscene pictures, but if such pictures are unobtainable they will produce their own art work, based upon a fevered imagination and a knowledge that is often ludicrously inaccurate, and in the same way they write their own obscene literature on sidewalks, walls, and fences. Critical censorship must always be defeated by creative obscenity. Censorship, of any kind, is helpless because it is impotent to touch the root of the supposed evil that it would eradicate; so long as the obscene image is desired, an evocative and satisfying stimulus will be found.

….Obscenity does not reside in the stimulating object, but in the determined-to-be-stimulated subject; the sin, if sin there be, is not outside us, it is within. And that is the very simple explanation of why we can never arrive at a definition of obscenity: it assumes all forms, it is created by every individual for himself, from whatever materials may be available, according to the current dictates of his individual desire.

Justice Douglas, a staunch defender of free speech, saw the difficulty in trying to define what is essentially a personal evaluation. He tried to convince his fellow Supreme Court justices “there are as many different definitions of obscenity” as there are people. Each such definition “is as unique to the individual as his dreams…. Whatever obscenity is, it is immeasurable as a crime…. It is entirely too subjective for legal sanction.” It should be noted that even if an objective definition is ever created or found this would not justify legal sanction.

In 1964 the Wayne Law Review discussed how individuals interpret images or ideas and act in ways which are entirely unpredictable. The article said:

Heinrich Pimmerenke, who was a rapist, abuser, and mass slayer of women in Germany, was prompted to his series of ghastly deeds by Cecil B. DeMille’s The Ten Commandments. During the scene of the Jewish women dancing about the Golden Calf, all the doubts of his life came clear: Women were the source of the world’s trouble and it was his mission to both punish them for this and to execute them.

John George High, the British vampire who sucked his victims’ blood through soda straws and dissolved their drained bodies in acid baths, first had his murder-inciting dreams and vampire-longings from watching the ‘voluptuous’ procedure of — an Anglican High Church service.

A woman named Andrea Cowan was quite religious. Her brother-in-law was pastor of the Rock Zion Baptist Church which she attended faithfully. But one day Ms. Cowan ripped out the eye of a 16-year-old boy. When arrested she quoted the Bible, Matthew 18:9 “If thine eye offend thee, pluck it out and cast it from thee.”

G.K. Chesterton once commented about a boy who killed his father with a carving knife after seeing a similar incident in a film. Chesterton discussed whether or not the film was responsible for the boy’s action.

This may possibly have occurred, though if it did, anybody with common sense would prefer to have details about that particular child, rather than about that particular picture. But what is supposed to be the practical moral of it, in any case? It is that the young should never see a story with a knife in it? …It would be more practical that a child should never see a real carving-knife, and still more practical that he should never see a real father…It is perfectly true that a child will have the horrors after seeing some particular detail. It is quite equally true that nobody can possibly predict what that particular detail will be…If the kinema exhibited nothing but views of country vicarages or vegetarian restaurants, the ugly fancy is as likely to be stimulated by these things as by anything else.

Chesterton’s comment shows how the focus in these issues should concentrate on the human agent and not the object. One of the great defects in modern culture is the rampant attempt to blame inanimate objects for the acts of human beings. Both the Left and the Right are guilty of this. Right-wing fundamentalists argue pornographic magazines cause men to become rapists. Left-wingers argue guns are responsible for murder. Yet neither object is capable of doing anything. Without the human element neither rapes nor murders could take place. To the degree that we buy into the argument objects turn people into criminals we, to an equal degree, exonerate the person of their crime. Instead of seeing the object as passive and acted upon it becomes the active agent and the human being the passive one.

When Fedler says it is impossible to define pornography she is wrong. From a legal, objective standpoint it is impossible to define obscenity. But pornography is a clear and distinct category of art. Machan’s error is similar. He recognises we can objectively define pornography and therefore assumes we can say the same thing about obscenity. We cannot. His confusion is he equates the two. I would agree he could describe most porn as bad art but I would not accept that he can objectively call it obscene.

Legal scholar Richard Posner is someone who would hold similar policy views as Machan, but from very different perspectives. Judge Posner is a utilitarian where Machan is a natural rights advocate. Where Machan critiques regulations from the perspective of whether or not they violate natural rights Posner evaluates laws and asks if they make sense from a cost/benefit perspective. While I think there are many flaws in the fundamental assumptions of Posner’s “economic analysis” of law he does offer some interesting perspectives and should be familiar to all scholars debating human sexuality.

Posner, in his fascinating analysis Sex and Reason, tries to make sense out of the censorship conundrum. He writes: “The terms erotic, pornographic, and obscene overlap in confusing ways.” As I have already stated I don’t think this is true but Posner, for the time being remains confused. He says, “I use erotic to describe presentations and representations that are, or at least, are taken by some viewers to be, in some sense ‘about’ sexual activity. …By pornographic I denote the subset of erotic presentations and representations that by virtue of their frankness or other offensive or disturbing properties shock or embarrass many people. Obscene I use to denote the subset of pornographic works that the law seeks to suppress.”

Posner’s definitions aren’t much help. He sees pornography and obscenity to be subsets of erotica. Erotica he defines as something taken by some people to be about sex. How many such people are needed before something is defined as erotic? His category of pornographic is equally undefined. To Posner something is pornographic if it’s frankness or disturbing properties shock or embarrass many people. How many are many? No answer. He also insinuates that the properties of the art in question are themselves disturbing or offensive but this isn’t the case. It is the evaluation of the individuals which creates the category “disturbing,” not the nature of the work in question. If I see a film of two individuals having sex I am not likely to be disturbed where some television evangelist will be outraged—at least in public. The nature of the work in question may be sexually oriented but whether or not it disturbs, offends, or embarrasses depends entirely on the values of the person viewing the work.

Judge Posner is particularly illogical when he defines obscenity as “pornographic works that the law seeks to suppress.” This, at best, is circular reasoning. The US courts have said that “obscene” material may be suppressed. This means that to be suppressed it must first be obscene. With this in mind we can get to the heart of Posner’s definition. He is saying anything which is “obscenity” is that which is “obscene.” This can be a bit confusing to understand. Let me clarify. Posner uses the actions of the law to define the category “obscene” but the law says it can only take action if something is first obscene. The law thus presumes something is obscene before it “seeks to suppress it” where Posner then uses the suppression itself to define the obscenity. It is true circular reasoning.

Posner evades giving us a definition. With his “definition” we are standing on quicksand. Does he mean anything which any prosecutor anywhere attempts to suppress is obscene? That is actually what he says. Or does he mean anything which is actually suppressed somewhere? If a publication is banned in South Carolina but not in California is it obscene? Or is it obscene in one place but not in another? If something can be simultaneously obscene and non-obscene then this cannot possibly be an objective definition.

The biggest problem with Posner’s “definition” is he relies on the acts of someone else to define his term. In this case he relies on US law. But the courts have never been able to define “obscenity.” That is why there is so much controversy is the first place. So the courts say anything which is “obscene” can be suppressed but they don’t give us any means of defining the word obscene. Without an objective legal definition we are forced to rely on the subjective whims of prosecutors, judges, and juries. Thus the courts are constantly baffled and confused. Prosecutors aren’t sure what is or isn’t obscene and juries are asked to vote on what they like or don’t like. In San Francisco a city prosecutor once said he would go after “pornography” if he could find a jury that would convict. In his view material was “obscene” but in the view of his juries it wasn’t. That’s why American law concerning obscenity is contradictory. It has no objective foundation on which to rest. Posner is thus trying to define the term “obscene” by pointing to the contradictory, inconsistent, totally subjective acts of thousands of prosecutors, judges, legislators, and jurors. No definition could ever come from such chaos and Posner thus doesn’t give us one.

Posner would be far clearer if he understood material ‘about’ sex is pornography. The subsets are then “obscene” and “erotic.” Erotic is that sexual material which the viewer finds pleasant or arousing while “obscene” is that material which the viewer finds offensive or disturbing. I think Posner oversteps his definition when he uses the word embarrass. A person may be embarrassed by sexually explicit material but still find it pleasant. The same is true in that someone may be aroused and offended at the same time as well. In fact, there are people who would be offended BECAUSE they are aroused.

Posner does seem to understand there are problems with his terms. He says, “Recalling the definition of pornography as erotica that offends, I find it difficult to imagine that the category even existed in ancient Greece; likewise the form of the obscene that is offensive merely because its frankness.” This is a tacit admission that there is no objectivity in his terms.

The United States Supreme Court has basically said pornography is protected by the free speech guarantee of the U.S. Constitution but obscenity is not. They were not too keen to ban pornography, which can be objectively defined, because it was so broad a category and would included much material which was considered by the Justices to be of value. So they banned obscenity instead. The problem is that good law must be objective law. The objective category of pornography they ignored while the subjective category of obscenity became their cornerstone. The predictable result was legal chaos.

The only rational means to avoid such chaos is to either ban all pornography or to legalize all pornography. But if we ban all material regarding sex we would lose some of the greatest works of art or pieces of literature in human history. Yes, some material that the bulk of people would find offensive would be banned as well but it seems too high a price to pay; especially when we consider the fact there is no evidence the material which would be banned would do much harm anyway.

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James Peron

James Peron

James Peron is the president of the Moorfield Storey Institute, was the founding editor of Esteem a LGBT publication in South Africa under apartheid.