In 1964, the US Supreme Court heard a case (Jacobellis v. Ohio) in which a movie theater manager was convicted of violating a state obscenity law for showing a certain French motion picture, Les Amants (The Lovers).
The Court reversed, throwing out the conviction. It was a landmark victory for boring French movies that make you wait two hours for the sex scene. Justice Potter Stewart concurred, which means that he agreed with the opinion but wanted to add his two cents anyway. Here’s the end of what he wrote:
I have reached the conclusion…that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
So Stewart is saying, hard-core porn is illegal. However, I cannot tell you what hard-core porn is. I can only tell you that I know what it is, or at least I know what it isn’t.
As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don’t know
We don’t know.
—Feb. 12, 2002, Department of Defense news briefing
I think what you’ll find,
I think what you’ll find is,
Whatever it is we do substantively,
There will be near-perfect clarity
As to what it is.
And it will be known,
And it will be known to the Congress,
And it will be known to you,
Probably before we decide it,
But it will be known.
—Feb. 28, 2003, Department of Defense briefing
Back to Stewart. Anyone can see that this kind of subjective definition (or lack of one) could only cause a headache when trying to legally enforce any kind of standard. Forget that there are eight other old men who have their own subjective definitions on the matter.
SCOTUS has flirted with more objective definitions in the past. According to Bob Woodward’s The Brethren, a history of the court from 1969-1975, Justice William Brennan should be considered “the father of obscenity law” since in 1957 he originally tried to define the obscene (in this case, in order to prevent things like James Joyce’s Ulysses from being banned). Here the key was if “the average person” would find “the dominant theme” of a work to be appealing to “the prurient interest.” Prurient is one of those words, like prescient, used to be classy; it means “dirty-minded.”
A few years later, he tweaked this, saying material must be “utterly without redeeming social value” in order to be obscene; Woodward reports that “pornographers then took to citing medical reports or throwing in lines of Shakespeare to protect the product” (230). At the end of a film, for instance, you might have a psychiatrist analyze a woman’s nymphomania – proving that even multiple orgasms can be a “teachable moment,” as we call it in the education biz.
However, in 1967, SCOTUS gave up on defining and embraced the subjective. Redrup v. New York established that so long as five Justices felt something was not obscene, that meant it wasn’t. This led to the neologism (new word) “Redrupping,” to describe the process wherein the Justices would sit around in a darkened room and watch porn together, in order to decide if it was obscene. (Also, the dissent in Redrup neatly points out that all this etymological debate does not truly resolve the legal issue at hand in the case, which is…no one remembers).
That’s right. They would sit together, with their clerks, too, and watch nudie movies, on the taxpayer’s watch. Then they would see how those films measured up (chuckle) to their personal definitions. Judith Silver of coollawyer.com compiled the definitions in The Brethren:
Justice Byron White’s Definition: no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity.
Justice Brennan’s Definition, The Limp Dick Test: no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the ‘limp dick’ standard. Oral sex was tolerable if there was no erection.
Justice Stewart’s Definition, The Casablanca Test: In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his ‘Casablanca Test.’
Maybe this is why Humphrey Bogart didn’t get on that plane. Rimshot. No, not that kind of rimshot.
The Supreme Court saw all kinds of crazy stuff in its fight to define the obscene. In 1966 they had to figure out if receiving naked photos of yourself in the mail was a crime (it isn’t, although I think the Court missed a chance here to subjectively say this depends on how attractive you are).
Then things began to quiet down. A commission appointed by Nixon declared that pornography (which literally means writing about prostitutes, by the by) “had no measurable ill effects.” Then the video boom happened – if you’ve seen Boogie Nights, you know – the stuff got cheaper to make and now you could enjoy it in the privacy of your own home, which gave you more legal protection.
Not so fast, says the ghost of Ronald Reagan. During his second term he had another commission take a look at porn. Where Nixon’s guys had used science, the Reaganites used “anecdotal presentations” (this comes from a good history of porn discourse). And now, thanks to that women’s lib movement, there were feminists who championed the ban of pornography because they felt it (any of it) was demeaning to women.
Still, while the commission could not tie porn to “social ills as drug use, prostitution, and spousal abuse” (thanks, PBS), it recommended the creation of a National Obscenity Enforcement Unit. This badass government agency had the job of…kicking porn’s ass, I guess. NOEU even had sweet task names like Operation POSTPORN, or Operation WOODWORM. Yeah! Wait, woodworm?
Later, NOEU’s name was changed to the Child Exploitation and Obscenity Section, which is not nearly as cool.
Transformers, P.S., besides being how I imagine NOEU agents, remind us that Reagan helped get rid of FCC guidelines regulating children’s TV programming. “By fall 1984, children’s TV was packed with shows that sold toys constantly. Transformers, Masters of the Universe (He Man), Voltron, and Rainbow Brite all vied for children’s attention. The shows were the commercial.” Good thing he was against exploiting our little ones.
But porn, like the gingerbread man, cannot be caught. And once the Democrats took over the White House and gave us the internet, the battle was over. Nicholas Confessore’s interesting history of this includes some enlightening figures:
The ease of consumption made porn even more popular — and more profitable. Between 1992 and 1999, according to research by Showtime Event Television, pay-per-view revenues went from $54 million to $367 million. In 1998, the adult content market earned roughly $1 billion, according to Forrester Research. By 2001, the total was up to $14 billion — bigger, according to some estimates, than football, baseball, and basketball combined. “What investors and bigger corporations soon discovered,” according to The New York Times, “was a vast audience for pornography — once the privacy barrier was eliminated.”
So perhaps IRONICALLY, it’s by closing down porn theaters and driving smut out of the public arena (Giuliani, I’m looking at you), that conservatives played a part in exponentially increasing the number of Americans who consume porn (this is a curious expression, but one you find often).
Could it also be that by trying to fit some kind of definition onto “obscene” you end up protecting countless other potentially objectionable materials? Artists can easily stay one step ahead of definitions, having their lead recite “to be or not to be” as he climaxes, thus bestowing social value (Kenneth Branagh practically does this anyway).
Princess Leia understood this kind of paradox years ago, explaining to Grand Moff Tarkin, “The more you tighten your grip…the more star systems will slip through your fingers.”
Yes, I typed that quote from memory. And yes, Grand Moff Tarkin would be a great porn name. And yes, that picture is from a completely different movie. But I thought it was fitting for this post. Nothing demeaning to women about Star Wars, thank god.
Here’s the last word on this. Potter Stewart knew it when he saw it, for him, as we all know how much is too much. (TMI, as the kids say). In a non-porn case (Trop v. Dulles), in fact in a case dealing with capital punishment (the death penalty), Chief Justice Earl Warren wrote that the Eighth Amendment, which protects us from “cruel and unusual punishment,” is not “static,” and that our definitions of cruel and unusual should be “guided by ‘the evolving standards of decency that mark the progress of a maturing society.'” This is a lovely, liberal idea – that we could outgrow the death penalty as we, as Americans, become more enlightened, more merciful.
Porn may show us that we have evolving standards of indecency. Everyone bitches about how much sex and violence is on TV and in the movies these days. Instead of seeing this as a Pandora’s box scenario (double entendre in porn entry), maybe we could say that this is evidence of a society more ready to be open about sex and sexuality, more willing to leave decisions and judgment about sex and violence, about the beautiful and the damned, to its citizens, which is where the power ought to be anyway.
I grant you that at times it is difficult to believe Americans are evolving into anything.
Porn > Ingrid Bergman
Internet > Republicans
Rumsfeld > Linguistic certainty
Oh here’s a footnote for the real nerds out there: Louis Malle, director of Les Amants, was later married to Candace Bergen. Candace Bergen was in the Mike Nichols film Carnal Knowledge, which was the subject of another Supreme Court case (Jenkins v. Georgia). The Justices watched the movie one day, and were quite disappointed.
“‘I thought we were going to see a dirty movie,’ [Thurgood] Marshall complained at the end of the movie. ‘The only thing obscene about this movie is that it is obscenely boring,’ said White” (Woodward 331). And somewhere, co-star Art Garfunkel cried softly to himself. Which is nothing new.