How obscenity and morality undermine freedom

There is hardly a way to engage in the conversation around censorship, abuse prevention, and freedom of speech that doesn’t involve talking about the obscure concept of obscenity. It is “obscure” because, despite its long history, it still fails to have a distinct definition.

Where other crimes can enjoy a historical evolution and growth that adds finer details and technicalities to their legal confines rather than adding ambiguousness to their definition, obscenity stubbornly went the opposite direction.

A quick search through the dictionary gives a few results for the word “obscene”:

offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex.

abhorrent to morality or virtue. Specifically: designed to incite to lust or depravity.

Its meaning might appear deceptively clear, but it soon becomes problematic once we start wondering about the objective and infallible threshold over what is offensive or socially accepted. Accepted by whom? Who is it supposed to offend? Why is offending someone a crime in the first place?

All these questions do not have fixed answers, even less now than they did in the past.

A brief history of obscenity

At its origin, obscenity was intrinsically tied to blasphemy and anti-Christianity, appearing to have been born with the spread of the monotheistic religion. Both ancient Rome and Greece were not in the habit of treating sexually charged speech/art as something that required legal regulation. Even when legal restrictions to freedom of speech took a more familiar censorious face when post-Republic Rome transitioned into monarchy, it was still concerned about the political, not the sexual or scatological.

If we’re looking specifically for the idea that speech/thoughts/art could soil someone’s personhood, Plato notoriously wrote in The Republic that the perfect society ought to censor fiction, lest the young and vulnerable were exposed to ideas, no matter if true, that weren’t authorized for the betterment of the citizen and its utopia. But he was still describing a society that didn’t exist.

Roughly three hundred years later, Catullus, who merrily included obscenity in his poems, cared to specify that “obscenity” (of the sexual and scatological kind) “is a legitimate poetic device, not evidence of a degraded personality” since “It suits a proper poet to be clean himself, but no such necessity for his little poems.” (Carmen 16 which has a rather ironic, if not sad, history of being censored and mistranslated because of two vulgar lines.)

We need to jump through a few centuries again, after the advent and settlement of Christianity in Europe for concern toward sex and its depictions to become an urgent matter. When non-Christian materials started circulating again in the late Middle Ages, the need to assert control over content that threatened Christian orthodoxy culminated with the institution of the Index Librorum Prohibitorum, through which heresy and “obscenity” could be prosecuted. Protestant countries, for all that they separated themselves from the Church, kept the censorial role, assigning it to different authorities, whether civil or religious.

For a specific date where the crime of obscenity took shape, we need to wait for 1727 with Curll’s Case, where a publisher failed to defend the publication of a blasphemous work depicting the promiscuity of the clergy. The reasoning for the formal criminalization of obscenity as libel was that:

[…] religion was part of the common law; and therefore whatever is an offence against that, is evidently an offence against the common law. Now morality is the fundamental part of religion, and therefore whatever strikes against that, must for the same reason be an offence against the common law.

Yet the publication of obscene content was not clearly a crime until 1857 with Lord Campbell’s Act, which in turn motivated Queen v. Hicklin in 1868 which stated that a publication was obscene if it could deprave or corrupt those whose minds are open to such immoral influences.

The current American obscenity test is a mere modification of this. It was imported from England by Anthony Comstock, majorly responsible for the American obscenity law that in 1873 banned its shipping through mail, and it didn’t fail to immediately find specific, preferred targets:

[…] the specific passages identified in the indictments as obscene often focused on female sexual desire or sexual pleasure, usually narrated by women in the first person.

And not only women:

According to figures tabulated by the literary historian Jay Gertzman, Comstock’s New York Society for the Suppression of Vice throughout its history brought charges against Jews more frequently than against Catholics and Protestants combined.

The prosecution of James Joyce’s Ulysses in 1933 led to cementing the departure from Hicklin, changing the focus from the alleged harm to a young or impressionable reader, to the one to the average person. And since judging single passages of a work could end up condemning even the Bible for containing obscene parts, the test needed to be applied to the work as a whole.

In 1973, Miller v. California finalized the current three criteria test, adding a couple of less than liberal changes: it replaced the criterion “utterly without redeeming social value” with “lacks serious literary, artistic, political, or scientific value”, and changed the threshold from being “patently offensive” to the more easily met “appeals to prurient interest.”

A valid exception to the First Amendment?

Ever since then, the concept of obscenity has embedded itself into our cultural consciousness, its legal standing legitimizing the idea that there is a kind of speech that, regardless of actual harm and crimes, does not have the right to be uttered and is so worthless that its only effect is the degradation of the human soul and of the overall moral quality of the entire community in which it dares to exist, however privately or temporarily.

Obscenity managed to find a place outside the First Amendment and the more logical rationale for its exception: it’s almost jarring to compare how one exception to freedom of speech is if it incites imminent illegal action (thus giving priority to actual harm taking place over simple, offensive language), while the other criminalizes offending the morality of the average citizen of a specific geographic place.

These two exceptions couldn’t be more different, and in fact the existence of the obscenity crime actively undermines the First Amendment at its most fundamental: it targets protected speech because the judgments can only be contingent and arbitrary, and as the “community standard” is not the whole nation, but it changes locally, this means that the First Amendment is not the same for everyone across the entire country (let alone the same State), but criminalizes and legitimizes the same speech based on geography.

Even before the Miller test, it was already evident that the entire point of obscenity was about sin, as its focus is whether it offends and corrupts, not whether it is the precedence of a crime. It never got rid of its religious origins, and for all that young America wanted to take distance from the Catholic Church, then Victorian principles, then English law, it stayed very much on the same track.

In fact, despite its singular placement against the backdrop of the First Amendment, obscenity law remains important, and it is still used today as one of the few legal tools available to criminalize speech that is otherwise consensual and/or private. The existence or not of a victim is not even necessary, as moral crimes are considered of immediate effect to the soul, and said victim can be made up on the spot.

Defending the innocents

One such very common victim is, of course, the child. Who, if not the most innocent and helpless, is the perfect subject to call for the immediate indignation of the community, ready to do whatever it takes to protect the most vulnerable members of our society?

Think of the children” has long since become a recurrent slogan whenever there’s a need to motivate restricting the liberties of adults and marginalized groups (children included), by evoking moral authority and using a rhetorical tool that effectively corners the opponent in a moral bind.

To give a few examples:

  • In 1986, the Meese Report argued against pornography on the grounds that it would allegedly cause harm to women and children.
  • In 1998, COPA actively sought to censor US internet providers from distributing commercial material that was “harmful to minors” following the same arbitrary line of obscenity. It was finally shut down as unconstitutional in 2009.
  • Now, in 2021, the European Parliament is trying to pass a law that would allow mass surveillance of private, digital correspondence in order to find child sexual abuse material more easily.

Accompanying these legal actions are widespread social concerns, stuck in an infinite feedback loop with the legislating power, feeding each other the current danger threatening the wellbeing of children all over the country, without ever really focusing on expert evidence regarding where energies should be focused to actually address victimized children. By ignoring and refusing to address factual knowledge on crimes we have (i.e., the Stranger Danger scare vs actual majority of abusers being someone known to the child), the made-up solutions can bend any direction based on the political/ideological concern of the moment.

“Think of the children” has come to be, beyond a cheap rhetorical fallacy, also the decompressing valve of social groups (usually the ones benefiting from the status quo) in times of stress and cultural change, where new cultural movements and phenomena threaten to disrupt hierarchies and power (im)balances. This is the core of what made obscenity and censorship in general in the past: who threatened the status quo dictated by those in power needed to be silenced. And it’s why Jewish people, women, POC, and LGBTQ+ have been the recurrent targets of modern censorship: minority groups are framed by the “moral majority” as those who would harm and corrupt children with their worthless speech, hence justifying why they should be legally managed differently than other citizens.

And if there’s one thing that “Think of the children” has done, it is giving people an easier scapegoat to redirect their fears and frustrations against a target that they have the power to denounce, differently from the historical direction of censorship coming from the higher class against the lower, lacking in power and resources. Where censorship punches down, the blind, moral concern for the corrupted youth gives virtual power to the mass to punch horizontally, down to someone sitting even lower than them, and occasionally even upward against the higher class.

Moral panic

A specific kind of this type of “equalized punching” is the particular phenomenon of moral panic, which often overlaps with obscenity concerns about the corruption of youth. A moral panic, very shortly, is “the process of arousing concern over an issue—usually the work of moral entrepreneurs and the mass media. It is understood to be sudden, disproportionate, and volatile: “the fever pitch that characterizes a society or segments of it during the course of the moral panic is not sustainable over a long stretch of time.” Folk devils are created to scapegoat the source of perceived threat, as media, law enforcement, and politicians all foment the public rage and fear against a specific danger that is ruining or jeopardizing the traditional values of a given culture.

Examples of this are the panic over comic books in the 50s (an emblematic case, the book Seduction Of The Innocent, arguing that comic books were a direct cause of juvenile delinquency), the satanic panic of the 80s, the panic over violent video games in the 90s, the panic over the “trans agenda” of the past few years, together with “punching-up” conspiracies like Pizzagate and QAnon. They are all deeply concerned for the youth and the vulnerable, all have a very specific target supposedly responsible for the child abuse they are perceiving, and all are characterized by an impressive amount of disinterest toward more empirically accurate assessments of types of child abuse and how to prevent them.

The level of disinterest and plain detachment from the work that should be put in to actually make a change even suggests that the child victim is really just a symbol in a social phenomenon that, at closer inspection, is not about them. It’s not about the child. It’s about the idea of the perfect childhood being the canary in the coal mine of a morally traditional and just society:

[…] there is […] a very strong emphasis in moral panics on what ‘right-minded’ people should think about an incident or group; expressing in common [unison] these common sentiments of outrage helps reaffirm our commitment to society.

Moral panics today, like witch hunts in the past, help define the Other so that the community gathers tighter and in stronger solidarity with the (re)confirmed moral norms that give “the rest of the community some sense of their own territorial identity.”

This does not justify the scars they leave behind in their wake (i.e. the highly problematic and ineffective sex offender registry), nor how they routinely redirect attention away from evidence-based action toward the protection of vulnerable groups.

If censorship has the fatal flaw of silencing marginalized voices, performative moral concern has the one of intentionally looking away from them. Obscenity sits right in the middle to close the gap between the two, reinforcing the false sense of security that a better society is being built by refusing to address the uncomfortable truth that abuse prevention has nothing to do with folk devils and offensive thoughts/fiction.

Fighting against the surge of a moral panic can be daunting, as the media and politicians actively work to fan the flames for their own profit, and dismantling the castle of myths they have built around their devils requires time and resources. Yet obscenity does not engage the same fight-or-flight, knee-jerk irrationality of moral panics: instead, it has the placid pace and depth of religious dogmas, and as such should be immediately recognizable as not having place in a secular corpus of law.

At least in the 21st century, riddled as we are with conspiracy theories and the uphill battle against stigma and prejudice, there should be no justification for laws that mirror the sentiment of a sermon from the 18th century:

What shall we say of certain books, which we are assured (for we have not read them) are in their nature so shameful, in their tendency so pestiferous, and contain such rank treason against the royalty of Virtue, such horrible violation of all decorum, that she who can bear to peruse them must in her soul be a prostitute, let her reputation in life be what it will.

Notable Replies

  1. Avatar for Chie Chie says:

    Obscenity laws are based on irrationality and emotion! There is no justification for the prohibition of ‘obscene’ material. The idea that such material could incite or destroy culture reflects a belief that such a culture is weak and cannot withstand such utterances being spoken, as well as undermining the very freedoms we as a society depend on to maintain our individuality and plurality within a group, culture, or community.

    The idea that which “normalizes” evil should be banned, especially without hard, empirical evidence supporting these claims, is an attack on our freedoms and an attack on us.

    We will see the obscenity doctrine abolished within our lifetime. It is a civil rights violation, no different than Separate but Equal and the sodomy exception.

  2. A paradigm shift always runs the risk of appearing to be an irrelevant nuisance, possibly self-indulgent.

    The principle of obscenity is not irrational, but rather, incompletely explained. It often leads to arbitrary, short-sighted and even unfair and discriminatory decisions, but it nonetheless is highly socially robust because there is no ratiocinative discourse that can replace it.

    I’ve studied the philosophy of power for many years, and have come up with a fundamental analysis of its mechanisms that I call ‘lectics’ (based on the Greek λέγω, originally ‘to choose’ or gather). To cut to the chase, there are many aspects of social and personal power that depend on an inherently fragile mechanism, namely, self-fulfilling prophecy. For example, if you have ‘self-confidence,’ that is built on your own perception of your track record of doing sufficiently well in your choices, plus your bootstrapping that you’re, by nature, smart enough to do things well. If you really mess up, that whole system can be “shattered.” Nothing holds it up but memories and self-reflections that could be recast as illusions, or as out of date stuff that’s no longer valid.

    Sometimes, your self-fulfilling prophecies may be helped by symbolic items. For example, you might win a trophy for being the best student in some class. This is a great prop to keep your self-fulfilling prophecy running, but it can still look completely meaningless if you later become depressed, for example. Such props are conventionally called placebos; they’re maintained by the epistemic version of what philosophers call ‘virtuous cycles,’ the opposite of ‘vicious cycles.’ Positive and negative personal self-fulfilling prophecies ('yes, I’m competent! ’ ‘Damn, I always seem to be worthless!’) are exactly virtuous and vicious cycles running in your mind.

    How does this relate to obscenity? It relates because social solidarity and personal moral power are also self-fulfilling prophecy cycles, but on a much larger scale, with multiple people involved. Part of being in power is managing these cycles. Notice that in almost any crisis, top politicians will assure you that everything is under control, even when it’s not. Sometimes, they’re just engaging in wishful thinking, but even the responsible ones realize that having everyone panic would make the situation, whatever it is, that much worse. Thus ‘everything is under control’ is an attempt to maintain a virtuous cycle in the face of the problem – it’s a kind of statement that I technically call an ‘approphetic injunction.’ It mimics an assertion of fact but is actually a hopeful portrayal that starts as a so-called ‘white lie’ that is aimed at making itself true by keeping up the best resilient attitude among the public.

    The people who are attached to obscenity laws are those who believe that social responsibility and the personal moral power that underlies it require turning away from self-indulgence, and making the necessary sacrifices in personal desires that allow society to pull together rather than apart. They further worry that sex, as an extremely compelling pleasure, will be the most likely factor to make individuals turn to their own indulgence instead of to social responsibility and personal social moral responsibility.

    The important thing here is that there is the perception, which on some level is not wrong, that social responsibility is only maintained by placebo-effect – if you are familiar with the “clap your hands if you believe in fairies” passage in the story of Peter Pan, you can see the sort of commitment of raw belief that many people feel is needed to make society work. “Clap your hands (and put your genitals away) if you believe in society” is truly what the believers in obscenity are asking for to make the fairy of society retain its power. The analogy to something as fragile as a fairy is not awkward here. Like confidence, social cohesion can be shattered, and can fall apart into the social version of depression, where its placebos like flags and anthems seem as meaningless as old, irrelevant school trophies. The great fears of our colonialist ancestors, like depravity and degeneracy, squalor, decay and ‘fall’ as in the Roman Empire, lie in this direction.

    One aspect of this system is that those who maintain obscenity laws are unable to justify them except in the most opaque and circular terms. You simply cannot say, “we are determined to maintain the multiple placebo effect of social responsibility by forcibly limiting people’s attention to their distracting personal pleasures.” And yet, consider what people will do when their personal competence is threatened. Suggest to any recognized expert that they don’t know what they’re talking about or that their expertise is not important, and you’ll likely be met with derision, irony, indignation or – and here’s a key word – signals that you have offended them. Shaking the social confidence belief system by saying “let us all run hither and thither and communicate freely about all our sex things, without limits” is a source of panic and indignation to those who are in power, trying to regulate social placebo systems. The panic and fury about this type of thing is often misplaced and overly worried about things. For example, it long supported fears about biological difference as a schismatic weakening influence – as could be seen in the days when a black and white person kissing on the lips was considered horrifyingly obscene, or when gay porn was considered far more obscene than thematically similar straight porn. Nonetheless, it can’t be fundamentally overcome by calling it irrational. It has both rational and poorly based components, but the logic of the rational components is recursive, that is, seemingly circular. It can only be circular in an attempt to maintain a ‘virtuous cycle.’ (‘Virtuous’ was actually a bad word choice for this, since such processes work both with and without moral virtue per se, and in my own writing I substitute the word ‘felicitous’.)

    My project is to lay bare the circular logic within which social power processes actually work, so that the truly necessary parts, and the purely superstitious parts, that fuse together within them can be analysed and corrected.

    I think any judge hypothetically listening to me as a lawyer at this point would have closed their ears, either because the discourse is too far out of left field or because they understand and hear a threat of moral collapse. I think that revision of the obscenity issue is destined to have great difficulties until more people in our world come around to the lectical paradigm.

    In the meantime, it will be one side shouting “irrational and arbitrary” and the other side shouting “eek, go to jail.”

    There is more on this topic in two posts in the Member’s lounge.

  3. Avatar for Chie Chie says:

    I get where you’re coming from, but it still doesn’t change the fact that it’s an irrational, heinous, and ultimately unjustified act of repression. We can go back and forth on the philosophy and even psychology behind advocating for the obscenity doctrine.

    My solution here is to prove their inefficacy and their harmful effects on those they manage to victimize, such was the case with Christopher Handley and Karen Fletcher, both would need a sturdy empirical basis to carry it in addition to compelling arguments.

    There is simply no reason why they should still exist. The obscenity doctrine is irreconcilable with the American ideal and simply incompatible with the nature of man. It is an attempt at denying us our autonomy, a strike at the very heart of what defines the liberal ideal and seeks to impose this… ideal of sexual preference on us, many of whom would be better off choosing of our own free will than to have it forced on us.

    If this idealic, romantic moral society as espoused by Plato is what they strive for, then they should know it’s not possible, and should just accept it, work with it, and allow it to exist as the free speech it is.
    This moral social pressure is perhaps the worst form of cancer… it’s honestly so overwhelming that it cripples my ability to rationally combat it because of how wrong it is.

    The obscenity doctrine, regardless of what content or culture it targets, is wrong. If it isn’t harming anybody by its utterance, then it’s free speech. The harm principle got it right.

    We’re witnessing the creation of a new repressed group - the pedophile. I weep for them.

  4. Exhorted mutuality can’t, by nature, have an ‘empirical basis.’ It has an ad hoc basis that keeps going in perpetuity. If there was a Marine sergeant who insisted his corps believe that they were the best soldiers in the world, and that they must act accordingly and perform all his many drills with gusto, what difference would it make if one of the bystanders opined that there was no empirical basis for his belief that his soldiers were the best and that his drills thus worked them too hard, in defiance of the fundamental liberal ideals and the nature of man?

    If you can’t show the Supreme Court judges and legislators that you understand what they’re attempting to do, but have a better solution, then you can be as vehement as you like, with no effect. The former have already explicitly ruled that obscenity is exempted from the political values you espouse. The first amendment has been hole-punched to let it through. It is considered more important than freedom. The US is a military state, and maintaining its military moral power is its highest value. You can’t write that explicitly into a Constitution, but sometimes presuppositions are stronger than text.

  5. Avatar for Chie Chie says:

    This isn’t the first time they’ve been wrong. The arguments presented by the previous Courts would not withstand even the most basic of scrutiny, otherwise our Constitution is meaningless.

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