Contrary to popular belief, "pornography" is a category unknown to the law, which recognizes only "obscenity", "indecency" and First Amendment-protected speech.
Obscenity may be prosecuted; indecency may be regulated but (unless the CDA passes) cannot be banned; ordinary speech, even though sexually explicit, must be left alone entirely.
Under the rule in Miller v. California, a 1973 Supreme Court case, obscenity is defined as prurient, patently offensive expression, lacking serious scientific, literary, artistic or political value (the "SLAP" test).
Though nothing is set in stone--Congress or a conservative Supreme Court can always return to the way things were--it is clearly recognized today that text alone cannot be obscene, though it may be indecent. Almost all obscenity convictions involve still pictures or videos, usually showing actual (not simulated) kinky sex acts, such as pedophilia, bondage or torture.
Prurience and patent offensive are determined according to the local community standards of the jurors trying the case-- a problematic approach when it comes to materials transmitted over the Net or posted on private BBS's accessible from anywhere. On the other hand, the "SLAP" test is not left to the vagaries of local standards.
The rather pedantic "prurience" and "patent offensiveness" tests have been described as follows: the material must turn you on ("prurience") and gross you out ("patent offensiveness").
The SLAP test suggests that material of equivalent prurience and offensiveness may stand or fall depending on whether there is an artistic element or other aspect of legitimate speech. I will discuss the Mary's Place home page which might pass the SLAP test based on its sex education aspects.
Indecency law has withered over the years until it deals only with radio and TV broadcasts, cable programming, and 900 and 976 telephone lines. Indecency law today covers four letter words, descriptions of sexual organs, etc. The First Amendment permits the F.C.C. to keep the "seven dirty words" off the radio in mid-afternoon, but not necessarily late at night. Indecent but non-obscene speech cannot be banned under the First Amendment, though it can be pushed to a time or venue where children are unlikely to experience it. (The Communications Decency Act would bring the bad old days of rampant, ideological indecency law back, not for books or movies but solely for the on-line world.)
Under today's law, much explicit sexual depiction and speech (from the Showtime erotic thrillers to the novels of William Burroughs) is considered neither indecent nor obscene and receives full First Amendment protection.
In a murder, assault or rape trial, the identity of the victim is never in doubt; in an obscenity trial, the prosecution and defense may key their tactics to persuading the jury of the existence or nonexistence of classes of potential victims. Thus, in the Amateur Action BBS case, the prosecution adduced testimony that minors might have logged onto the BBS (it was not shown any had.) When the defense tried to establish that this was not possible, the Judge ruled it was not an issue in the case.
I came up with five possible classes of victims of obscenity, in fact of pornography in general:
. The two 1973 cases anticipate--and counter--a common cyberspace argument by affirming that to protect us, it is not sufficient to allow obscene material to be distributed in quiet corners, only to aficionados. Like secondary smoke or other pollution, it will leak out and taint the rest of the population, the "all of us." From this perspective, the Amateur Action defense--that a credit card and a mailed application in adult handwriting was necessary to join the board--was irrelevant.
Confusion in cases like Amateur Action about the victims we are trying to protect may simply indicate that judges and lawyers haven't read Miller and its kin closely. But the language in those cases about victims may be dicta-- legalese for extraneous language unnecessary to the conclusion. The millenium and the onset of cyberspace as a new medium and metaphor presents an opportunity that should not be missed to re-examine the roots of obscenity law and determine just whom, if anyone, we are trying to protect. It is impossible to tell if pornography is bad without first determining who is the victim.
In the law of indecency, the sources seem in general agreement that minors are the class at risk, and regulations--scrambling cable transmissions, requiring credit cards for 900 line calls, broadcasting "adult" themes only late at night on radio--are designed accordingly.
The title of this essay is "Is Pornography Bad?" yet I have spent most of it discussing the sub-class known as "obscenity." My excuse is that this is the area in which we learn the most. Here people actually go to jail, so we are forced to spend additional time and energy examining their Constitutional defenses and asking questions about who the victims are. What we learn in this zone, we can apply anywhere. Remember, I am not arguing for a large class of explicitly sexual speech as "non-pornography." The opposite; I conceded that ground at the outset, so we can focus on the far more interesting question of who is really hurt.
In the ongoing debate about pornography, I found four voices, three of which I examine here. There is the Mackinnon viewpoint that pornography is bad because it is violence and oppression. There is the view expressed by ACLU president Nadine Strossen that pornography must be tolerated for free speech reasons. Then there is the view of Wendy McElroy that pornography is good, liberating, allows us to grow as sexual beings.
The fourth view, of course, is that pornography is absolutely bad by religious commandment or other rule arising from a morality of prohibition. I have omitted this one because I think there is nothing interesting or new to say about it. Also, because those who believe it also believe that the evil of pornography is indisputable, they don't write books about it, any more than they write books proving that adultery or murder are bad.
Let's start on the anti-pornography side of the spectrum, with the views of Catharine Mackinnon.