PornographyThe representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest.
Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience. During the twentieth century, Americans debated whether pornographic material should be legally protected or banned. Those who believe pornography must be protected argue that the First Amendment to the U.S. Constitution guarantees freedom of expression, including sexual expression. Traditional opponents of pornography raise moral concerns, arguing that the First Amendment does not protect expression that corrupts people's behavior. Toward the end of the century, some feminists advocated suppressing pornography because it perpetuates gender stereotypes and promotes violence against women.
Pornography has been regulated by the legal standards that govern the concept of Obscenity, which refers to things society may consider disgusting, foul, or immoral, and may include material that is blasphemous. Pornography is limited to depictions of sexual behavior and may not be obscene.
The U.S. Supreme Court has established that obscenity is not protected by the First Amendment. The more troublesome question has been defining what is and is not obscene. In 1957, the U.S. Supreme Court, in roth v. united states, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, stated that obscenity is "utterly without redeeming social importance" and therefore is not protected by the First Amendment. The Roth test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The Roth test proved difficult to use because every term in it eluded a conclusive definition.
The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the English novel Memoirs of a Woman of Pleasure, more commonly known as Fanny Hill. In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be "utterly without redeeming social value" and "patently offensive because it affronts contemporary community standards relating to the description of sexual matters." The phrase "utterly without redeeming social value" allowed a loophole for pornographers. Expert witnesses
testified that there was at least a shred of social value in the novel's depiction of sexual behavior and social relations.
The Supreme Court established the basic legal standard for pornography in miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Chief Justice warren e. burger stated in Miller that pornographic material would be classified as obscene if it met three criteria: (1) the work, taken as a whole by an average person applying contemporary community standards, appeals to the prurient interest; (2) the work depicts sexual conduct in a patently offensive way; and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value.
Burger emphasized in Miller that only hardcore pornography could be designated as patently offensive. He listed examples of patently offensive descriptions or representations, including representations of "ultimate sex acts" and "masturbation, excretory functions, and lewd exhibition of the genitals."
Based on Miller, the law distinguishes between hard-core pornography and soft-core pornography, which involves depictions of nudity and limited and simulated sexual conduct. Because it is not as graphic or explicit as hard-core pornography, soft-core pornography is protected under the First Amendment.
Child Pornography, whether hard-core or soft-core, is treated severely under the law. In 1982, the Supreme Court, in New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113, held that child pornography is not a form of expression protected under the Constitution. It found that the state of New York had a compelling interest in protecting children from Sexual Abuse and found a close connection between such abuse and the use of children in the production of pornographic materials. In 1990, the Court went even further in upholding a state law prohibiting the possession and viewing of child pornography (Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98).
In the 1980s, some feminists began an attack on pornography and the way the Supreme Court had structured the legal debate using the First Amendment. Led by law professor catharine a. mackinnon and writer Andrea Dworkin, they proposed that women be permitted to sue pornographers for damages under Civil Rights laws. In 1982, in an alliance with political conservatives opposed to pornography, MacKinnon and Dworkin convinced Indianapolis officials to pass a municipal ordinance based on their civil rights approach. The ordinance described pornography as "a discriminatory practice based on sex which denies women equal opportunity in society" and defined it as "the graphic sexually explicit subordination of women, whether in pictures or words," especially in a violent or degrading context. The ordinance made unlawful the production, sale, exhibition, and distribution of pornography and gave anyone injured by a person who has seen or read pornography the right to bring a civil suit against the maker or seller.
Supporters of the ordinance argued that the legislation was a civil rights measure whose purpose was to fight Sex Discrimination. In their view, the ordinance regulated conduct rather than free speech and thus did not violate the First Amendment. They argued that even if pornography was viewed as speech, it should be treated as a low-value form of speech that was not entitled to First Amendment protection.
All of these arguments were rejected by the U.S. Court of Appeals for the Seventh Circuit in Hudnut v. American Booksellers Association, Inc., 771 F.2d 323 (7th Cir. 1985). The court agreed that pornography affected how people view the world and their social relations but observed that the same could be said of other speech, including expressions of racial bigotry. Yet these kinds of expression are protected as speech because to do otherwise would give the government control of "all institutions of culture" and allow it to be the "great censor and director of which thoughts are good for us." The court, adhering to the definition of obscenity first articulated in Miller, ruled that the ordinance's definition of pornography would cover many works that are not obscene because it would not take the value of the work as a whole into account or consider the work as a whole. The court of appeals' decision effectively ended this approach to the regulation of pornography.
In the 1990s, attention was paid to the new ways technology could supply pornography. The use of computer bulletin boards and the Internet to distribute pornography nationally and internationally led to the enactment of the federal Communications Decency Act of 1996 (CDA) (47 U.S.C.A. § 223). CDA was designed to outlaw obscene and indecent sexual material in cyberspace, including the Internet. In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court overturned provisions of the CDA prohibiting transmission of obscene or indecent material by means of a Telecommunications device. The Court held that the provisions represented a content-based restriction, in violation of the Free Speech Clause of the First Amendment.
Feminist Perspectives ON PornographyPornography is a battlefield in U.S. law. For decades, courts have struggled to find a middle ground between opponents of Obscenity and defenders of free speech. This debate began to shift in the 1970s as feminists introduced new theories. Obscenity and free speech were no longer the central issues, these critics argued. Their paramount concern was violence. They claimed a causal link between pornographic depictions of women, and crimes ranging from harassment to rape. Beginning in the 1980s, some feminists proposed legislation that sought to control pornography in new and dramatic ways. They met strong opposition, and none of their legislation survived vetoes or court challenges.
Inspired by the women's liberation movement in the 1960s, many feminists began to decry pornography as sexist. In later years, a sharper critique began to emerge. Some feminists believed that pornography was a deliberate means of subordinating women to men, thereby maintaining inequality. One leading feminist critic, Andrea Dworkin, took this theory even further. In books such as Pornography: Men Possessing Women (1979), Dworkin interpreted pornographic publications and films as training guides for committing sexual violence.
Dworkin's writings have divided feminists. Her detractors argue that she stands outside the mainstream of feminism. Her supporters cite high rates of sexual violence as proof that Dworkin is right. Both sides frequently debate this point. The causal link between pornography and violence rests on anecdotal evidence. Dworkin finds this evidence sufficient, and she contends that women are not believed when they report an experience of being sexually assaulted by men who view pornography. While not denying these personal accounts, critics reply that a definite link can never be scientifically established.
One prominent feminist colleague of Dworkin's is catharine a. mackinnon. An author and professor of law, MacKinnon is regarded as a pioneer in providing legal recourse for victims of Sexual Harassment and rape. She and Dworkin created the intellectual framework for viewing pornography in a novel light: not merely as a form of speech but instead as active discrimination and violence against women. Their argument brushed aside traditional First Amendment considerations. If pornography harmed women, they claimed, then it was not deserving of legal protection as speech. This view had its first legal expression in a case they considered bringing to stop showings of the film Deep Throat, whose star, Linda Lovelace, contended that she was raped throughout the making of the film. Ultimately, no suit could be brought because the Statute of Limitations had expired, but the case served as their first step toward a practical attack on pornography.
MacKinnon and Dworkin tried a legislative solution in Minneapolis in 1983. As coteachers of a course at the University of Minnesota Law School, they were invited to draft a law aimed at keeping adult bookstores out of residential neighborhoods. Zoning ordinances had failed in this end. MacKinnon and Dworkin proposed amending the city's Civil Rights ordinance to include a new legal claim: a woman who proved that she had been harmed by pornographic material could sue its makers and distributors.
This groundbreaking approach avoided traditional definitions of obscenity. It defined pornography as the sexually explicit subordination of women in pictures or words. In the language of the proposed ordinance, subordination included images of women who "experience sexual pleasure in being raped" or in being "penetrated by objects or animals." Two provisions outlined the conditions under which a woman could bring suit: a plaintiff would have to prove that a pornographic work had harmed her in a specific way, or that it had harmed women in general. The hearings before the Minneapolis City Council galvanized debate and demonstrations. In one incident, a woman protesting pornography and its degrading aspects toward women, set herself on fire by a downtown news-stand.
The ordinance drew attacks from traditional free speech advocates, including the American Booksellers Association and the American Civil Liberties Union (ACLU). Opponents argued that the ordinance was vague, allowing too much subjectivity in deciding what material constituted subordination. Any material, they claimed, could be deemed offensive in this way. One group making this argument called itself the Feminist Anti-Censorship Task Force (FACT). Among FACT's 50 prominent members were the authors betty n. friedan, kate millett, and Adrienne Rich. They filed a legal brief attacking the ordinance on the ground that it reinforced sexist stereotypes. In a strongly worded rebuttal, MacKinnon denounced the group as being apologists for male supremacists.
The Minneapolis antipornography ordinance twice failed to pass. Mayor Donald M. Fraser vetoed it in December 1983 and in July 1984. But the ordinance served as a model for others and in 1984, MacKinnon and Dworkin met with greater success in Indianapolis. Again, they proposed modifying existing ordinances with amendments that would allow any woman the means to seek an order prohibiting offensive pornography, as well as to seek damages. On April 23 and June 11, 1984, the Indianapolis– Marian County City Council passed General Ordinances 24 and 35, which amended chapter 16 of the Human Relations and Equal Opportunity Code. Indianapolis Mayor William H. Hudnut III signed the ordinances into law.
The law was challenged in American Booksellers Ass'n v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984). In 1985, it was declared unconstitutional (Hudnut, 771 F.2d 323 [7th Cir. 1985]). Judge Frank Easterbrook based his ruling on a longstanding tradition of First Amendment protection for "opinions that the government finds wrong or even hateful." However, he accepted the ordinance's central argument about pornography. He agreed that "depictions of subordination" tend to perpetuate subordination in other areas of life, causing sexual discrimination, harassment, rape, and domestic abuse. The U.S. Supreme Court affirmed Easterbrook's decision in 1986 (Hudnut, 475 U.S. 1001, 106 S. Ct. 1172, 89 L. Ed. 2d 291, aff'd without comment, reh'g denied, 475 U.S. 1132, 106 S. Ct. 1664, 90 L. Ed. 2d 206).
Following the Court's ruling, MacKinnon and Dworkin refined their approach in a proposed 1992 bill for the Massachusetts state legislature titled An Act to Protect the Civil Rights of Women and Children (H. 5194). Sponsored by Representative Barbara Hildt (D-Mass.), the bill focused on individuals who could prove that they were assaulted as a result of pornography. The bill allowed victims to collect damages in civil court from publishers, filmmakers, and distributors. In testimony before the Massachusetts Legislature, MacKinnon argued that pornography enjoyed better legal protection than did women. This time, opposition came from civil rights groups as well as the New York State chapter of the National Organization for Women (NOW). NOW condemned the bill for taking the onus off criminals and placing it instead on publishers. Although considered in committee, the bill was never voted on.
MacKinnon and Dworkin's views on pornography are certainly not shared by all feminists. nadine strossen, professor of law at New York Law School, has written, lectured, and practiced widely in the areas of Constitutional Law, civil liberties, and international Human Rights. Since 1991, she has served as president of the ACLU, the first woman to head the nation's largest and oldest civil liberties organization. Strossen believes that Censorship, and not pornography, is the true enemy of Women's Rights. For too long, she argues, censorship has been used to repress information relevant to women. Strossen lays out her feminist perspective in Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (1995). By arguing for "procensorship," Strossen asserts, feminists such as Dworkin and Mackinnon are ultimately doing more harm than good since any restriction of free speech is detrimental to all people.
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