Obscenity and Pornography

Today, the terms obscenity and pornography refer to material of a sexual nature, particularly that designed to inspire sexual excitement. But, until the middle of the 19th century, obscenity and pornography were as likely to refer to blasphemous, seditious, or otherwise prohibited religious or political speech as to sexual expression per se. Nor did the terms begin to acquire exclusively sexual connotations in the United States until the 19th century ushered in a number of pivotal changes, including technological advances in print and film, increased literacy, urbanization, and immigration, all of which produced efforts to control a rapidly changing population that had access to an expanding array of media. Assuming that sexual material encouraged masturbation, Victorian reformers treated it as yet another call to censor scientific reports that “the solitary vice” caused blindness, promoted acne, produced insanity, compromised fertility, and, generally, depleted masculine vitality. And it was in censoring that Victorians developed a definition of obscenity that centered on sex. But even during the heyday of notorious anti-obscenity crusader Anthony Comstock (1873–1915), dissenters created suggestive and explicit sexual material, distributed it, and fought against the state censorship apparatus. Other opponents of censorship pointed out that even if obscenity laws focused on sexual expression, enforcement officials used them to entrap individuals with radical political views. Thus, obscenity has occupied a dubious and contested legal status in the United States, subject to the many federal, state, and local laws that proliferated in the late 19th and early 20th centuries.

Before the 1950s, legislatures and lower courts struggled on their own to define and regulate obscenity, creating a veritable crazy quilt of laws that ignored, for the most part, constitutional concerns. Filmmakers and exhibitors, publishers and booksellers grew increasingly frustrated by the ways that local obscenity laws fragmented an otherwise national market even as they chafed under a postal obscenity code that blanketed the nation. During World War II, inconsistencies in these regulatory regimes crystallized when military officials distributed material to soldiers (Esquire's Varga girl pinups, for example) that postal authorities declared obscene and banned from the domestic mails. Not until 1957 did the U.S. Supreme Court agree to consider the possibility that obscenity laws raised constitutional issues. In Roth v. United States, the Court upheld the constitutionality of obscenity laws but defined obscenity for the first time, deeming it “material which deals with sex in a manner appealing to prurient interest.” Since Roth, Supreme Court decisions have played at the margins, tinkering with standards for determining illegal obscenity without challenging its existence or the right and duty of legislatures to regulate it.

Testing the limits and implications of Roth, publishers and filmmakers produced ever more racy material that led, eventually, to the creation of a succession of presidential commissions on obscenity and pornography (1970 and 1986) and the development of a feminist antipornography movement. In 1973—amid this swelling tide of activity among commercial interests, political leaders, and feminist activists—the Supreme Court attempted to distinguish between obscenity and pornography in Miller v. California. It did so by emphasizing the general “offensive” nature of obscenity and the more specifically sexually titillating aspects of pornography. Pornography—taken from the Greek word meaning, literally, literature about prostitutes—has been defined in a number of contradictory ways. In Miller, the Court declared obscene pornography a subset of obscenity, implicitly recognizing a category of nonobscene pornography. In contrast, activists on all sides of the issue have tended to treat pornography as the most extreme, explicit, and objectionable form of obscenity, emphasizing this with modifiers such as “hard core.”

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