Published in Words Without Pictures. Edited by Alex Klein. (Los Angeles: Los Angeles County Museum of Art, 2009).
The U. S. Supreme Court, in its decision Stanley v. Georgia, 394 U.S. 557 (1969), unanimously affirmed the individual’s right to privacy by holding that “the State may not prohibit mere possession of obscene matter.” It was the first time — and in all likelihood will prove to be the only time — that the Supreme Court was unanimous in its opinion of pornography.
Two years before, the U. S. Congress had set up a commission to study pornography, and its report, published in 1970, found no proof of pornography’s alleged social harm, and recommended that no legal restrictions be placed upon adults’ access to it. Report of the Commission on Obscenity and Pornography alarmed conservatives, notably Charles H. Keating, founder of Citizens for Decent Literature and a member of the commission himself. He wrote a lengthy dissent in which he called the commission’s conclusions “a blank check for the pornographers to flood our country with every variety of filth and perversion.”
During the early 1970s, the much-anticipated flood could not quite begin, since there was no adequate legal definition of filth. Specifically, the distinction between pornography, the immense and variegated genre of sexually explicit images and words, and obscenity, that part of the pornographic so irredeemable that it was not protected by the First Amendment’s guarantee of freedom of expression, remained ambiguous. The previous definition set forth by the Supreme Court in Roth v. United States, 354 U. S. 476 (1957), was schematic, and in a word dear to First Amendment scholars, overbroad. Justice Potter Stewart’s jejune assertion about obscenity that “I know it when I see it” (in the 1964 decision Jacobellis v. Ohio, 378 U. S. 184) did nothing to clarify the matter.
A final decision came in the form of Miller v. California, 413 U. S. 15 (1973), which formulated a tripartite definition still in use today. Material is obscene if (1) the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Miller ruling had a few problems — e. g., who is the average person? — but it nonetheless emboldened pornographers, who saw plenty of room to maneuver within its provisions, to make substantial investments in production and distribution. The notion of “community standards” gave local law enforcement agencies the latitude to rid their jurisdictions of adult bookstores and theaters, but the losses caused by these actions were minor annoyances to what soon became a multi-billion dollar industry.
The Reagan years brought an about-face in the federal government’s policy: Attorney General Edwin Meese set out to demonstrate the social harm caused by pornography, and to provide law enforcement agencies with strategies to fight it. The Final Report of the Attorney General’s Commission on Pornography (1986), criticized by social scientists for its prejudices and distortions, became an unexpected popular success when readers found that it contained a nearly 2,000-page flood of unintentionally hilarious filth. Charles H. Keating, the dissenter of the previous commission, was vindicated, after many unsuccessful prosecutions in his native Cincinnati of figures such as Larry Flynt and Russ Meyer. The federal government’s position on pornography had finally aligned with his own. Whether Keating had occasion to gloat is doubtful, since he was occupied at that time with financial transactions of immense proportions at Lincoln Savings and Loan. These transactions, approved by the likes of Alan Greenspan and Senator John McCain, precipitated Keating’s fall from decent citizen to felon, when he was convicted on multiple counts of fraud, racketeering, and conspiracy.
If Meese’s report was risible, pornographers did not have long to laugh, because the First Amendment protections they had enjoyed for a decade and a half were threatening to dissolve. The crucial figure in this shift in the legal climate was not a law enforcement official or a moral entrepreneur, but a girl named Nora Louise Kuzma. In 1984, using an older person’s birth certificate, she obtained a California driver’s license stating that she was over 21, when in fact she was only 15 years old. She presented this identification at liquor stores, and then at studios where she performed as Traci Lords. Lords appeared in a number of popular pornographic movies, until she became so famous that someone (perhaps a “friend” from her hometown of Steubenville, Ohio) told the feds her true age. She was Pet of the Month in the same issue of Penthouse that featured the photo spread that cost Vanessa Williams her Miss America crown, but Miss Williams’ predicament was nothing compared to the consequences of revelations about Traci Lords.
After sexually explicit representations of Lords had been removed from stores, the FBI prosecuted producers and distributors of her videos. Defense attorneys argued (without much success) that when Lords presented her illegally obtained identification, she did not appear to be under 18 years old, and that her movies were marketed to mainstream consumers, not to pedophiles. Regardless of these arguments, her case was put to use in the campaign to eliminate child pornography. In the aftermath of the scandal, Congress passed the Child Protection and Obscenity Enforcement Act of 1988 (18 U. S. C. § 2251 et seq.) Without realizing it, Traci Lords provided anti-porn crusaders with an unassailable device for manufacturing moral panic: concern for the welfare of children.
Section 2257 of the Child Protection and Obscenity Enforcement Act requires that producers keep proof of legal age for all people appearing in sexually explicit representations, and that these records be available for inspection by law enforcement authorities. Injunctions delayed the enforcement of this section of the law until July 3, 1995. (Works produced before that date are exempt from these specific requirements.) In practice, producers retain pictures showing performers holding photo identification next to their faces, and a “guardian of records” organizes these files, deals with demands to inspect them, and, it is hoped, keeps the producers out of federal prison.
Record keeping requirements, called 2257 regulations, while reasonable in principle, have become a political device used against the porn industry. The PROTECT Act (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today), passed in 2003, gave the Department of Justice wide discretion in amending and enforcing 2257 regulations. Proposed changes to section 2257 have included: (a) defining as producers not only companies that make adult videos, but also anyone who re-uses or circulates sexually explicit images in any way; (b) requiring that records be available at any time that production and distribution activities are maintained (24 hours a day in some cases); (c) rescinding the “grandfather clause” exempting older material (for which no records exist); (d) accepting only U. S. government issued identification for “proof of age” photos (for foreign as well as domestic productions); and (e) mandating enhanced penalties of up to life imprisonment for pandering, the definition of which may embrace advertising and even casual emails.
The porn industry responded to this and other federal initiatives by organizing the Free Speech Coalition, which has brought suit against the government to seek the repeal of legal requirements that they argue are arbitrary, illogical, and burdensome. The 2257 regulations have been the focus of repeated litigation, and thus far in all cases the Free Speech Coalition has been successful in rolling back the federal government’s incursions into what the industry considers legitimate business practices and expression protected by the First Amendment.
Like it or not, pornographers have been the most effective guardians of freedom of speech during the waning years of the George W. Bush administration. In repelling attempts to limit First Amendment rights, they have seen far more consistent success than artists, journalists, or the mainstream film industry. The triumphs of the porn industry are a testament not only to the deep pockets of its prominent producers and the legal acumen of its lawyers, but also to the raw power of capitalism. Economic and technological changes have created a situation beyond the control of the most astute capitalists and the most ardent censors.
Considering that they risk vast sums of money as well as the personal liberty of their executives, the major porn producers are at pains to avoid employing underage talent. Neither does the industry explicitly attract underage consumers. Professionals in the industry emphasize this by using the term “adult video” or “adult content” rather than the vague and subjective term “pornography,” though the general public has not followed their example. If children find sexually explicit material, how can the industry, the feds, or an army of concerned parents stop them from looking at it?
By prevailing U. S. legal standards, those who circulate or own child pornography are breaking the law, since this obscene material has never had any constitutional protection. But the logical subtleties of defining the terms child, obscenity, pornography, circulation and ownership in the digital age have been a challenge to Supreme Court Justices barraged with hypothetical cases ranging from the benign to the horrific. Recoiling from the suggestion that Romeo and Juliet — which after all deals with the sexuality of teens — could be considered child porn under federal law, Justice Anthony Kennedy wrote in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), “Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach.” This statement brings to mind another hypothetical case: a Supreme Court Justice, born during the Depression and raised by Victorian parents, in conversation with a grandchild whose first exposure to pornography occurred around the same time as learning to read.
The legal issues around obscenity and the First Amendment are still in flux, and are likely to be so for a long time to come. Provisions of the PROTECT Act have been struck down in Federal Circuit Court, and appeals are only now reaching the Supreme Court. Whatever their outcome, one thing is clear: in its stated aim (protecting children) and in its implicit aim (harassing the porn industry out of existence) recent federal legislation has failed spectacularly. No matter how many ways federal authorities devise to stop the spread of sexual imagery, it remains a fact of contemporary life. In America, pornography is, like the Judeo-Christian God, omnipresent; whether it is also omnipotent remains to be seen.
This text was a response to Charlie White’s essay “Minor Threat,” hence the title. (See Dischord Records discographies.) I wrote it during the last summer of George W. Bush’s presidency, hence the rather dire tone. With the economic problems that became drastically obvious in the fall of 2008, then the election of Barack Obama, the U. S. federal government turned its attention to matters more urgent than the prosecution of producers violating 2257 regulations.