Pornography
Public Opinion
Further Readings
The United States is the pornography capital of the world. Americans produce and
consume more pornography than any other nation. The United States produces more
then one hundred fifty new titles each week and spends more than $8 billion a
year on hard-core videos, peep shows, live sex acts, adult cable programming,
computer porn, and sex magazines. This is reportedly more than Hollywood’s
domestic box-office receipts and larger than the annual revenues generated by
rock and country music recordings combined.
Americans rented more than 410 million adult videos in 1991 and purchased 2, 400
new adult videos in 1993. Adult bookstores dot the American landscape. Although
the stores are subject to local zoning ordinances and state entrance-age
restrictions, local law enforcement otherwise generally ignores them. The
American characteristic of staunch individualism, coupled with constitutional
protection of speech and the press, works against government regulation of
pornography.
The First Amendment to the U.S. Constitution stipulates that “Congress shall
make no law . . . abridging the freedom of speech, or of the press.” The
Fourteenth Amendment made the Constitution applicable to the state governments,
meaning that judges will uphold the right against state officials as well as the
federal government.
In Roth v. United States, 354 U.S. 476 (1957), the U.S. Supreme Court held that
obscenity is not constitutionally protected speech under the First Amendment. In
doing so, it abandoned the test in the British case, Regina v. Hicklin, LR 3 QB
360 (1868), and developed its own definition for obscenity. The Hicklin test
defined obscenity as material that has a tendency to deprave and corrupt those
who are likely to view the material. The Roth Court introduced the
“appeal-to-the-prurient-interest” requirement. The Court defined material
appealing to the prurient interest as “having a tendency to excite lustful
thoughts,” and defined prurient as “[i]tching; longing; uneasy with desire or
longing; of persons, having itching; morbid or lascivious longings; of desire,
curiosity, or propensity, lewd.” Material was obscene “if, considered as a
whole, its predominant appeal is to the prurient interest, that is, a shameful
or morbid interest in nudity, sex, or excretion, and if it goes substantially
beyond customary limits of candor in the description or representation of such
matters.” Though all erotic material has a propensity to excite lustful
thoughts, not all erotic material is obscene. What is required is that the
interest has a shameful and morbid quality to it.
Following Roth, the U.S. Supreme Court issued rulings that dramatically changed
how the country dealt with erotic literature. These rulings involved works such
as Lady Chatterley’s Lover, Tropic of Cancer, and Fanny Hill. Before 1966,
publishers could not legally publish these books in the United States.
Afterward, though, the Court no longer considered obscene those writings that
had literary merit, even if they contained sexually explicit material. The Court
declared five categories of speech that the government could regulate and thus
was outside the protection of the First Amendment: (1) speech that is likely to
incite imminent lawless action, (2) defamation, (3) obscenity, (4) fighting
words, and (5) child pornography. In so doing, the Roth Court applied a form of
the “clear and present danger test.” This test strictly limits the government’s
reach to cases where a direct or immediate threat to the public is imminent.
Indirect or remote harm is insufficient to warrant restrictions on speech. These
decisions culminated in the 1973 decision of Miller v. California, 413 U.S. 15
(1973).
Miller articulated the current test for determining whether particular material
is obscene. The trier of fact must determine the following: (1) whether “the
average person, applying contemporary community standards” would find the work,
taken as a whole, appeals to the prurient interest; (2) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and (3) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
In effect, the Miller test limits obscenity to hard-core pornography that
depicts normal or perverted ultimate sexual acts, acts of masturbation and
excretory functions, and the lewd exhibition of genitals that violates both
state laws and local community standards.
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Community standards, however, vary widely. What people in Kansas consider
obscene, people in New York may consider fine art. Community standards can also
change. What seemed quite shocking several years ago may look tame by today’s
standards, just as today’s pornography may barely raise an eyebrow tomorrow.
The Supreme Court has allowed an outright ban on child pornography, however,
citing the harm to the children involved. Intervening to protect children from
harm, the Supreme Court, in New York v. Ferber, 485 U.S. 747 (1982), upheld a
New York law prohibiting the distribution of child pornography. The Court found
the use of children in the production of pornography to be injurious to the
child’s “physiological, emotional, and mental health” and “intrinsically related
to the sexual abuse of children.” Government could therefore ban it to eliminate
the economic incentive for its production.
In fact, American authorities design many of the restrictions on pornography to
protect children from exposure to sexually explicit material. Television
stations show almost no explicit nudity, and both television and radio limit
adult content to late evening hours. The voluntary movie rating system focuses
on preventing minors from viewing sexually explicit materials. The Supreme Court
has allowed local communities to use zoning laws to restrict the dissemination
of sexually explicit materials. Local and state governments do not allow adult
bookstores and movie theatres near schools. When it comes to violent media,
however, the United States is much more liberal. For example, when the state of
Missouri sought to restrict the sale or rental of violent videotapes to minors,
the regulation could not withstand a constitutional challenge.
Public Opinion
Americans’ approval of sexually explicit materials show a complex trend.
Objections to various sexual presentations diminished in the early 1970s, but by
the mid-1970s, attitudes turned against pornography. Support for ending all laws
regulating pornography declined, and belief in the negative effects of
pornography grew. In the 1980s, there was little change, But by the 1990s, views
shifted once again toward liberalization. For example, a recent study found that
52 percent of Americans approve of pornography’s availability in bookstores, 55
percent approve of pornography’s availability in video stores, and 83 percent
believe that the government should not interfere in sexual relations between
private consenting adults. However, the same study found that 47 percent
perceived a link between sex crimes and pornography with 40 percent disagreeing
and 12 percent undecided.
Other sources report that Americans continue to support more restrictions on
X-rated theaters, adult bookstores, and massage parlors, with as many as 40
percent believing pornography should be restricted regardless of age,
effectively banning the material. Almost two-thirds of the public was concerned
with this situation and believed that such material affected community morality.
A small percentage of Americans believe pornography is such a serious crime that
they call for the death penalty or castration for those who distribute and
produce pornography.
Therefore, while some sources report growing support for more regulations,
others report increasing levels of tolerance. It is likely that the more recent
trend is toward tolerance, though the 2000 election results indicated continued
opposition to homosexuality. This truth may be more complex, with people
generally becoming more tolerant of alternative lifestyles, particularly between
heterosexuals, while holding significant distaste, at least publicly, for
homosexuality and fetish-type behaviors. There can be no doubt that the public
is divided on the issue, but also that it is supportive of strong constitutional
protections for sexually explicit materials.
—Rita J. Simon
See also Belgium ; Constitutional Law, Doctrinal Issues in ; Critical Feminist
Theory ; Expression, Freedom of ; Individualism ; Sex Offenders
Further Readings
Cowan, G., C. J. Chase, and G. B. Stahly. (1989). “Feminist and Fundamentalist
Attitudes toward Pornography Control.” Psychology of Women Quarterly 13: 97–112.
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Easton, Susan M. (1994). The Problem of Pornography: Regulation and the Right to
Free Speech. New York: Routledge.
Major, Marie-France. (1993). “Obscene Comparisons: Canadian and American
Attitudes toward Pornography Regulation.” Journal of Contemporary Literature 19:
51–80.
Sullivan, Barbara. (1997). The Politics of Sex: Prostitution and Pornography in
Australia since 1945. New York: Cambridge University Press.
Thompson, Margaret E., Steven H. Chaffee, and Hayg H. Oshagan. (1990).
“Regulating Pornography: A Public Dilemma.” Journal of Communication 40(3):
73–83.
Source Citation "Pornography." Encyclopedia of Law and Society: American and
Global Perspectives. Ed. David S. Clark. Vol. 3. Thousand Oaks, CA: Sage
Publications Inc., 2007. 1150-1152.