What do author Henry Miller, contraceptive advocate Margaret Sanger, and Monty Python all have in common? Each, at one point or another in their careers, were subject to their works being banned for Obscenity or offensive content.
In the Margaret Sanger case, a New York Court of Appeals judge upheld an earlier lower court ruling that banned Margaret Sanger’s 1917 documentary film, Birth Control “in the interest of morality, decency, and public safety,” Sanger, a life-long advocate of family planning, produced the film to better explain family planning options. Miller’s 1934 publication of Tropic of Cancer led to an immediate ban against the importation of the Parisian publication of the book, and custom officials impounded copies that made it to American shores. Finally, Monty Python’s 1979 Life of Brian was banned in Ireland for more than eight years for what church officials called, “its obscene and blasphemous treatment of the topic.”
Trying to define obscenity is like trying to nail Jell-O into ice. Finding a suitable definition for what constitutes “obscenity” is frustrating, elusive, messy, and subject to change based on the evolving sensibilities of the culture that defines it to their current satisfaction. One Supreme Court justice, Potter Stewart, once famously noted in a decision as regards a 1964 obscenity case concerning hard-core pornography, “I know it when I see it.”
Norms: Mores, Taboos, and Laws
The only way that large groups of people can co-exist together in a given society is to agree to adhere to agreed upon rules and expectations as to what constitutes polite behavior within a given culture. Broadly speaking, sociologists refer to these societal expectations as norms. Generally unwritten, these rules guide conduct regarding cultural expectations and can vary widely between societies.
For instance, in North America, belching at the dinner table is considered the height of rudeness, but at some Asian tables, it is considered perfectly acceptable. As one might expect, violating a social norm does not bear heavy consequences, but for more serious etiquette faux pas, sociologists have further broken down societal habits into mores, taboos, and laws.
The culture’s definition of obscenity is formed and enforced through the society’s mores, taboos, and laws.
Mores—in a society, moral and ethical behavior is governed by cultural mores. Viewed as morally important, mores broadly dictate what the society views as right and wrong, and violating them results in public censure. An example of cultural mores includes religious doctrines that are widely held by the group. Notions of what constitutes obscenities are often embedded in the religious teachings of the group.
Taboos—these are norms that are held so deeply by a society that when they are violated it inspires disgust by others in the culture. Frequently, upon exposure, the violator of the taboo is viewed as unworthy and unfit to live within the society. Some of the more stringent taboos within a culture include proscriptions against incest and cannibalism. Dependant on the culture, lesser taboos might include views regarding intermarriage, masturbation, adultery, or abortion.
Laws—for those taboos, whose violations are so egregious that the state must step in to remedy the situation, laws are written to enforce that power, and it is within the laws of a culture that punishments are codified. As such, any search for an obscenities definition will invariably be found on the books of state, local, and federal jurisdictions. Before enforcement however, obscenity laws need to be agreed upon by the larger group. Complicating that determination is the subjective nature of defining obscenity. After all, what would be considered obscene gestures and obscene language in one community may well be routinely offered and accepted as a hearty salutation in another.
Further complicating the legal picture when attempting to arrive at an obscenity definition, the First Amendment of the United States Constitution affords the rights of freedom of speech, so the aforementioned obscene hand gestures easily falls under the purview of the “freedom of expression” aspect of the First Amendment guarantee.
Elusive Legal Obscenity Definition
The first legal definition of obscene material was applied to an 1897 legal case, Dunlop v. U.S., in which the court upheld an earlier conviction for mailing a newspaper, the Chicago Dispatch, which the court claimed contained “obscene, lewd, lascivious, and indecent materials.” The Dunlop decision established precedents that supported additional rulings, which buttressed the definition of obscene along community standards. Indeed, it wasn’t until the 1960s that the Supreme Court gave a renewed look at cases that would attempt to legally define obscenities against the backdrop of the nation’s changing mores during those turbulent social and political times.
A 1950 effort, waged by the American Civil Liberties Union, to overturn the ban on the aforementioned Tropic of Cancer was struck down, but the case was revisited again during the 1964 court session, which overturned the earlier court rulings that found Tropic of Cancer obscene.
The acknowledged landmark case dealing with efforts to define obscene material is the Supreme Court’s 1973 case, Miller v. California. Marvin Miller, accused of pandering obscenity, operated a mail-order operation that specialized in the distribution of pornographic movies and books. Under the State of California’s obscenity laws, Miller was convicted of the misdemeanor state statute.
In its decision, the court acknowledged the “danger of attempting to regulate any form of expression,” before arriving at a legal formula to define obscene content to allow local jurisdictions wider latitude in presenting obscenity cases for trial.
Prior to Miller, the 1957 legal standard, established in Roth v. United States, noted that obscenity should be identified by material that has, as its “dominate theme taken as a whole appeals to the prurient interests to the average person, applying contempary community standards.”
The Miller ruling applied a three-part criterion to determine an obscene definition for legal purposes. As such, the court established the Miller Test as a gauge on which to measure the obscene meaning of a particular piece of suspect material.
The Miller Test
- Whether the average person would find that the work, taken as a whole, appeals to lewd curiosity
- Whether the work describes, in an offensive way, sexual conduct
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
For the material to be deemed of an obscenely nature, all three tiers of the Miller Test must apply to the issue at hand before the court. While the Miller decision essentially redefined the court’s definition of obscenities, the ruling was not without its detractors.
The Subjective Nature of Obscenity Laws
“Contemporary community standards.” “Hypothetical reasonable persons.” The language of the Miller ruling listed these two entities as the barometer for determining what constitutes “obscene” in public discourse and legal matters. In the example presented above regarding the difficulty of nailing Jell-O into ice, these definitions represent the ice in that scenario. Such is the subjective nature of trying to nail down what is obscene.
The role of the Jell-O in this analogy is played by the shifting cultural norms that dictate what is fashionable in polite society in any given time.
Further complicating Jell-O’s role is the fact that rarely do members of a society agree as to what broader cultural norms should hold sway within their region. As an example, residents of the nation’s Bible belt undoubtedly form their moral precepts from their belief in Holy Scripture, while a completely different demographic group sets different moral standards in other parts of the nation. Under these circumstances, how does a society establish national standards regarding a viable obscenity definition?
It would appear haphazardly.
The Supreme Court’s inability to wrestle a firm definition to the ground left the decision open to criticism from those who claim that the court’s obscenity definition failed to pass the “Vagueness Doctrine.” In short, the doctrine mandates that a defendant must be clearly informed of their breach of societal behavior, and the fact that what constitutes “obscene” is an intently personal preference, properly informing the defendant of the charges against them is impossible. Further, they argue, owing to the fact that personal subjectivity is at the basis of the dispute, it is impossible to rule fairly across the board.
In recent years, and as a response to its ready availability via the Internet, public obscenity laws have taken aim at those who are dedicated to pandering obscenities that target purveyors of child pornography. If anyone were looking for an example of the Jell-O being firmly affixed to the ice, it is the national consensus that has emerged as a response to the fight against this most vile element of society.
Until we arrive at a national consensus across a broad spectrum of what constitutes obscenity, which is an unlikely occurrence, we may need to rely on Justice Stewart’s sage words, “I know it when I see it.”