The Good Vibrations Guide to Sex (87 page)

You’ll notice that these criteria are imprecise at best—in fact, some First Amendment lawyers feel
Miller
is so vague that if it concerned any topic other than sex, it would be considered unconstitutional. The dictionary defines “prurience” as “an inordinate interest in matters of sex,” while the Supreme Court has helpfully added that prurient interests are those that are “sick and morbid,” as opposed to “normal and healthy.” Needless to say, it’s as difficult to define “patently offensive” as it is to determine whether a photograph has
serious
artistic value or not.

The Golden Age

During the seventies, the flowering sexual revolution and women’s movement created something of a Golden Age of sexual freedom of expression. In 1970, the President’s Commission on Obscenity and Pornography, which had been appointed by President Lyndon B. Johnson, submitted a report to President Richard M. Nixon stating that pornography had no discernible negative effects. The Commission recommended the repeal of most obscenity laws and called for improved sex education programs across the nation. While Nixon vigorously condemned these recommendations, the seventies were a boom time for books and magazines that satisfied the public desire for sexual information and depictions of sexual behavior. Early X-rated movies included work by directors and producers who were committed to pushing the envelope of sexual expression with serious dramas, and the success of sexually explicit mainstream films such as
Last Tango in Paris
and
Midnight Cowboy
suggested that Americans were finally “grown up” enough to embrace a popular culture that addressed sex in thoughtful and provocative ways.

The Reagan-Bush Years

The pendulum swung in the eighties with the dawn of the Reagan-Bush era (that is, the first President Bush) and the rise of the so-called Religious Right. President Ronald Reagan convened the U.S. Attorney General’s Commission on Pornography, aka the Meese Commission, and charged it with a mandate to find the causal link between pornography and social ills that President Johnson’s Commission had refuted over a decade earlier. The Meese Commission, an eleven-member panel of whom six were antipornography activists, obediently came to the conclusion that porn was a very bad, harmful thing indeed (but not before publishing its voluminous 1986 report, which was chock-full of excerpts from pornographic writings and plot summaries from adult videos).

The Commission’s report concluded that pornography inspires sexual violence and abuse, a finding that was immediately disputed both by several of the sociologists whose research the report misrepresented and by two of the Commission’s female members. These women—psychiatrist Judith Becker, whose career was devoted to studying and treating victims and perpetrators of sex crimes, and Ellen Levine, editor of
Women’s Day
magazine—formally dissented from the Commission’s report. They pointed out that the Commission suffered from limited funds, took no time to do independent research, and held heavily biased hearings—the majority of their “witnesses” being self-described “victims of pornography.” In a public statement, Becker and Levine noted, “To say that exposure to pornography in and of itself causes an individual to commit a sexual crime is simplistic, [is] not supported by the social-science data, and overlooks many of the other variables that may be contributing causes.”

Yet the Commission’s detractors were ignored and the Justice Department, duly inspired by a mission to crack down on porn, created the National Obscenity Enforcement Unit. Under Presidents Reagan and George Bush, this unit developed a sophisticated strategy to take on the heavyweights of the adult industry. They targeted a handful of video manufacturers and distributors and harassed them with obscenity indictments in multiple jurisdictions. Since obscenity is defined according to community standards, the Justice Department set up sting operations to ensure jury trials in conservative communities: For example, FBI agents would pose as consumers and place mail orders for videos to be delivered to Oklahoma City, Dallas, or Salt Lake City.

These multiple jurisdiction lawsuits were a double whammy. First, most distributors couldn’t afford the expense of mounting legal defense in several different states simultaneously, and the Justice Department counted on the fact that either the companies would agree to stop distributing videos, or they would drain all their financial resources on legal bills and simply go out of business. Second, if obscenity charges did stick in more conservative jurisdictions, companies could then face possible federal racketeering charges for interstate trafficking in obscene materials. While state obscenity convictions are usually misdemeanor charges, racketeering is a federal felony charge, which can result in large fines, long prison sentences, and the seizure of business assets.

One company that survived a staggering degree of federal harassment is PHE, the parent company of one of the nation’s largest adult mail-order catalogs, the Adam and Eve catalog. PHE, located in North Carolina, was established in 1970 by two graduate students in family planning who saw the need for a mail-order condom catalog. Over the years, the company added novelties, lingerie, magazines, and videos, and grew large enough to attract the attention of the federal government. Between 1986 and 1993, the Justice Department waged a campaign to put Adam and Eve out of business, indicting the company on criminal obscenity charges in North Carolina, Utah, Kentucky, and Alabama.

Fortunately, PHE had the resources and the commitment to fight back and win. Unlike many video distributors who have no particular investment in the products they produce, and whose defense frequently boils down to “I know this video is a tasteless piece of crap, but dammit, I’ve got a First Amendment right to sell it,” PHE’s founder, Phil Harvey, stands behind his product line. He employs a panel of sex therapists and psychotherapists who screen every product under consideration for the Adam and Eve catalog. PHE not only successfully defended itself against every obscenity indictment, but went on to file a civil suit against the Justice Department for harassment and selective prosecution. This suit was settled in 1993 when the Justice Department agreed to cease further prosecution. (You can read the whole sordid tale in Phil Harvey’s book
The Government vs. Erotica: The Siege of Adam and Eve
.)

Growing public awareness of these bullying tactics—exposed in the 1991 ACLU publication
Above the Law: The Justice Department’s War Against the First Amendment—
together with the advent of a new administration led the Justice Department to shift its focus. Federal raids on adult businesses were shelved in favor of a new legal strategy: “protecting” helpless women and innocent children from the “degrading” effects of sexually explicit materials.

Protecting Women

In 1992, the Senate Judiciary Committee approved the Pornography Victims’ Compensation Act, a bill that would have entitled the victim of a sex crime to sue producers, distributors, and retailers of books, magazines, and videos purported to have inspired the crime. In other words, manufacturers and retailers would be held liable for crimes committed by their customers. Although this Act never reached a vote in the full Senate, similar bills claiming a causal link between enjoying sexually explicit materials and performing criminal acts have been widely championed by antiporn activists Catharine MacKinnon and Andrea Dworkin and considered by a number of state and local legislatures.

The positive legacy of the aborted Pornography Victims’ Compensation Act was the forging of alliances between publishers, distributors, retailers, media people, and First Amendment groups. Anticensorship organizations such as Feminists for Free Expression sprang up in response to this threat to freedom of speech, and numerous mainstream journalists and editors took a stand in defense of the constitutionality of sexually explicit materials.

The Canadian Supreme Court’s
Butler v. the Queen
decision of 1992 provides a textbook example of what can go wrong when governments step in to “protect” their citizenry from “obscene” materials. Inspired by U.S. ordinances drafted by MacKinnon and Dworkin, which linked pornography to sexual discrimination against women,
Butler
mandates that Canadian customs seize all materials that officials deem to be “degrading” or “dehumanizing” to women. Canadian customs officials have taken the ruling as carte blanche to seize feminist, gay, and lesbian writings crossing the border and to target gay and lesbian bookstores for ongoing harassment. The lesbian erotic magazine
Bad Attitude
was one of the first publications to be seized, and has been followed by countless other volumes from
Hot, Hotter, Hottest
(detained before it proved to be a chili pepper cookbook!) to safer-sex handbooks to, you guessed it, two of Andrea Dworkin’s own books.

Protecting Children

The specter of a vast commercial empire of child pornography helps to keep the wheels of the federal antiporn bureaucracy turning; however, there’s no substantive proof that this empire exists. Lawrence A. Stanley convincingly argues in “The Child Porn Myth,” his 1989 article in the
Cardozo Arts and Entertainment Law Journal,
that there’s no commercial production or distribution of child pornography in the United States—kiddie porn exists only as a cottage industry of images shared among a small group of pedophiles. While it may be possible to find images online of minors engaged in sexual activity (hailing from overseas websites), these make up an exceedingly tiny fraction of all the sexual material on the Internet. Yet few in the Religious Right—or in government agencies, for that matter—distinguish between the production of sexually explicit materials for adults and the sexual exploitation of children. In fact, during the height of the Justice Department’s war on the adult industry, the National Obscenity Enforcement Unit was renamed the Child Exploitation and Obscenity Section.

In 1996 Congress passed the Child Pornography Prevention Act, which expanded the definition of child pornography by making it a felony to produce, distribute, sell, or possess any visual depiction that “appears to be” or “conveys the impression” of a minor engaging in sexual activity. In other words, images of people
implied
or
simulated
to be under the age of 18 engaged in
implied
or
simulated
sexual activity would be defined as child pornography. As written, the law would have had major implications not only for the adult industry, but also for mainstream publishers, Hollywood filmmakers, museum curators, and advertisers—fortunately, it was overturned by the Supreme Court in 2002.

Politicians construct a moral high ground for their efforts to suppress the free exchange of sexually explicit materials by claiming that “we need to protect our children.” The real target of these so-called Child Protection Acts, however, is the adult industry—yet pornographers are the first to agree that child pornography is criminally abusive. As sex educators, we’d be thrilled if the government went to the mat for children’s civil rights, but it’s difficult to see how pouring millions of tax dollars into preventing a married couple in Utah from receiving a mail-order porn video or trying to outlaw a Calvin Klein ad campaign truly combats the physical, emotional, and sexual abuse of the nation’s children.

Censorship Online

The Internet, with its accessible, uncensored exchange of sex information and entertainment, is a natural lightning rod for free speech issues. It’s a lot trickier to define “community standards,” and therefore obscene materials, in a global medium. Congress’s first pass at legislating sexual content on the Web was the Communications Decency Act (CDA) of 1995, which outlawed “indecent” online materials. The language of the CDA was so vague that it would have criminalized a huge range of sites—everything from the Breastfeeding Home Page to images of the Sistine Chapel. Free speech advocates successfully challenged the CDA, and it too was overturned by the Supreme Court in 1997.

The latest First Amendment skirmish involves access to online materials. Subsequent to the CDA’s defeat, Congress passed the Child Online Protection Act (COPA), which would have criminalized sites containing material deemed “harmful to minors” if the sites were accessible to minors. COPA has never taken effect—it was promptly blocked by a Federal District Court on the grounds that it violates the First Amendment. As of this writing, the American Library Association and the American Civil Liberties Union are challenging the COPA requirement that public libraries install filtering software on their computers or risk losing federal funding. (See the World Wide Web chapter for more on filtering software.) It seems likely that the Supreme Court will ultimately find COPA unconstitutional—and equally likely that yet another online censorship law will rise from its ashes. The decentralized, democratic nature of the Web may confound regulation, but that hasn’t deterred legislators nationwide from ongoing efforts to restrict online content and accessibility. You can expect the Internet to be a freespeech battleground for years to come.

Self-Censorship

Censorship efforts don’t merely limit access to sexually explicit materials, they also limit what materials get produced.

Books

How do obscenity prosecutions affect what gets produced? Publishers of mainstream sex manuals err on the side of caution and avoid explicit photos in their books, even if the results—such as a sexual-positions guide in which all the images are carefully framed to keep genitals out of sight—are somewhat absurd.

Given our national obsession with “protecting” children from sex, it’s not surprising that both adult and mainstream publishers are reluctant to accept stories related to child or adolescent sexuality—even though many of us had our adult eroticism forged during our youth. Most regrettably, the first casualties of laws ostensibly designed to protect children are often children’s sex-education materials themselves. Nude photos of children have been deemed obscene in a range of court cases, and sex-ed resources such as the European classic photography book
Show Me
have been withdrawn from U.S. distribution.