[Basis for a talk given at the University of Houston, 1998]
Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to [hu]mankind through the ages; it is one of the vital problems of human interest and concern.
Justice William J. Brennan, Roth v. United States, U.S.Supreme Court, 1957The law of equality and the law of freedom of speech are on a collision course in this country.
Professor Catharine MacKinnon, Only Words (71)
TABLE OF CONTENTS
I. TERMINOLOGICAL PRELIMINARIES
A. TWO USES OF THE TERM “PORNOGRAPHY”
B. “EROTICA” VS. “PORNOGRAPHY”
C. LEGAL DEFINITIONS OF “OBSCENITY”
II. EXAMPLES OF APPARENTLY LEGITIMATE RESEARCH AND TEACHING ABOUT PORNOGRAPHY
A. FOR PURPOSES OF COMPARISON: consider research and teaching using other potentially disturbing material
B. SOME EXAMPLES (HYPOTHETICAL UNLESS OTHERWISE NOTED):
1. Comparing depictions of male and females in Harlequin romances and pulp porn
2. Pornography as an evolving film genre
3. Pornography and a challenge to traditional criteria of gender and sexual normality
4. Methodological issues in psychological studies of the effects of viewing pornography
5. A better psychological study of the effects of viewing pornography
6. A (real) course on freedom of speech and censorship
7. Psychiatric research on sexual deviancy – new therapeutic approaches
8. “Curing” homosexuality – a new approach
9. Training lawyers and law enforcement officers in obscenity law enforcement
10. Studying feminist anti-pornography material: books and videos
11. Rapes and Tapes in a War Zone: mobilizing public opinion
12. Distinguishing erotica from pornography: studying feminist anti-pornography activists’ attempts to meet the challenge
13. Studying civil-rights based proposals for regulating pornography
14. Research on the effects of warnings against (or taxes on) pornography
15. Research and teaching using violent pornography (after indictment, during prosecution or after a guilty verdict)
III. LEGAL ISSUES: OBSCENITY LAW AND ACADEMIC FREEDOM
A. “ACADEMIC FREEDOM” – there’s less protection in the law (at any level) than most academics might think
B. TEXAS AND NORTH CAROLINA OBSCENITY LAW “educational value” no longer matters? – does context matter?
I. TERMINOLOGICAL PRELIMINARIES
A. TWO USES OF THE TERM “PORNOGRAPHY”
1. VanDeVeer’s proposal in the Encyclopedia of Ethics (Garland, 1990), 986-989:
Pornography is the sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumer of such materials (987). [This characterization is population-relative:] Important in deciding whether material is likely to evoke significant sexual arousal [an admittedly somewhat vague term] is its probable effect on an average person in a certain population,…. The reactions of particular individuals are inconclusive (988).
2. The MacKinnon/Dworkin proposal: excerpt from the (rejected) Minneapolis Ordinance, 1983:
Pornography is a form of discrimination on the basis of sex. Pornography is the sexually explicit subordination of women, graphically depicted, whether in pictures or in words, that also includes one or more of the following: (i) women are presented as dehumanized sexual objects, things or commodities; or (ii) women are presented as sexual objects, who enjoy pain or humiliation; or (iii) women are presented as sexual objects, who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures of sexual submission, or sexual servility, including by inviting penetration, or (vi) women’s body parts – including but not limited to vaginas, breasts, and buttocks – are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented being penetrated by objects or animals; or (ix) women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual. The use of men, children, or transsexuals in the place of women … is pornography for the purposes of … this statute.[1]
B. “EROTICA” VS. “PORNOGRAPHY”
1. Charlene Y. Senn, “The Research on Pornography: The Many Faces of Harm,” in Diana E. H. Russell, ed., Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, Teachers College, Columbia University, 1993), 181:
Erotica-Nonsexist and Nonviolent: These images have as their focus the depiction of “mutually pleasurable, sexual expression between people who have enough power to be [involved] by positive choice” (Steinem, 1980). They have no sexist or violent connotations and are hinged on equal power dynamics between individuals as well as between the model(s) and the camera/photographer (Sontag, 1977).[2]
2. B. Ruby Rich, “Anti-Porn: Soft Issue, Hard World,” in Patricia Erens, ed., Issues in Feminist Film Criticism (Indiana University Press, 1990), 410:
… what is pornography and what is eroticism? One is bad, the other is good (guess which). Fixing the dividing line is rather like redlining a neighborhood: the “bad” neighborhood is always the place where someone else lives. Porn is the same. If I like it, it’s erotic; if you like it, it’s pornographic.
C. LEGAL DEFINITIONS OF “OBSCENITY”
US Supreme Court (Miller v. California, 1973):
…Obscene material is unprotected by the First Amendment. … We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. …
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to prurient interest[3] …; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[4] We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts …. (fn: We also reject, as a constitutional standard, the ambiguous concept of “social importance….”)
We emphasize that it is not our function to propose regulatory schemes for the states. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard …:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
…For example [of material that merits First Amendment protection], medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy.
Texas Law on Public Indecency Title 9 Chapter 43, Subchapter B. Obscenity, as amended in 1979
§ 43.21 Definitions
(a) In this subchapter:
(1) “Obscene” means material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed or marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political and scientific value.
(2) “Material” means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device.
(3) “Performance” means a play, motion picture, dance, or other exhibition performed before an audience.
(4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.
(5) “Promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.
(6) “Wholesale promote” means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.
(7) “Obscene device” means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.
(b) If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct included herein.
§ 43.22 Obscene Display or Distribution
(a) A person commits an offense if he intentionally or knowingly displays or distributes an obscene photograph, drawing, or similar visual representation or other obscene material and is reckless about whether a person is present who will be offended or alarmed by the display or distribution.
(b) An offense under this section is a Class C misdemeanor [i.e., punishable by a fine not to exceed $200]
§ 43.23 Obscenity
(a) A person commits an offense, if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device.
(b) An offense under Subsection (a) of this section is a felony of the third degree [i.e., punishable by not more than 10 years nor less than 2 years in a Texas correctional facility; an additional fine not to exceed $5000 may also be imposed]
(c) A person commits an offense if, knowing its content and character, he:
(1) promotes or possesses with intent to promote any obscene material or obscene device; or
(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or contributes to its obscenity.
(d) An offense under Subsection (c) of this section is a Class A misdemeanor. [i.e., punishable by a fine not to exceed $2000, or a jail term of not more than one year, or both]
(e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses same with intent to promote or wholesale promote it in the course of his business is presumed to do so with knowledge of its content and character.
(f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote same.[5]
(g) This section does not apply to a person who possesses or distributes obscene material or obscene devices or participates in conduct otherwise pr[o]scribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities. [This narrows the exemption in the prior law; see below.][6]
II. EXAMPLES OF APPARENTLY LEGITIMATE RESEARCH AND TEACHING ABOUT PORNOGRAPHY
SUPPOSE: that a faculty member wishes to do research on sexuality and the law and to communicate the results of the research to (legally adult) students. Consequently, the faculty member needs access to some sexually explicit materials, print and video, and needs to make them available to students enrolled in a course on the topic. As is typical, research is ‘at the frontier’, and the most controversial and extreme materials are among the most important to study. Although some sexually explicit material has the potential to be disturbing, this is true of a great deal of what students encounter, and the university is familiar with the kinds of problems that such encounters can cause. It might nevertheless be both prudent and productive of useful information on teaching effectiveness to have members of the Psychology and Sociology faculties monitor student reaction to course material, as long as student privacy is also respected.
A. FOR PURPOSES OF COMPARISON: consider research and teaching using other potentially disturbing material: the Holocaust, post-traumatic stress syndrome, neo-Nazis and hate crimes, creationism vs. evolutionary theory, abortion, euthanasia, cruelty to animals …
B. SOME EXAMPLES:[7]
1. Comparing depictions of males and females in Harlequin romances and pulp porn:
An English department faculty member wants to do a comparative study of the stylistic techniques used in depicting females in Harlequin romances and in non-homosexual paperback pornography. (It’s been argued that the romances play much the same role for women as do the paperbacks for men. Judgments on the effects vary.[8]) No library in the area has a collection of the latter. Many works must be surveyed. $400 is requested for a statistically significant sample of 80 works. A collection does exist at the Josiah Schmuttz Collection of Censored Materials in Far Away, USA, but the cost of travel and meals, etc., would exceed $2000, and photocopying and other access fees would be extra. (Perhaps the Kinsey Institute actually has the relevant material.)[9]
2. Pornography as an evolving film genre (Williams, Penley and Merck):
A film theorist on the faculty wishes to assess Linda Williams’s long, intricate argument in her 1989 book Hard Core that pornography constitutes an evolving film genre worthy of academic study.[10] (Possibly, though not necessarily, this evolution indicates changes in what’s wrong with contemporary attitudes towards sexuality.) Williams cites particular pornographic films as key to the genre’s definition. These films (e.g., Deep Throat, Behind the Green Door, Insatiable) are not available for rental in area video rental stores. [But what if they were and the rental fees were included in a grant proposal’s budget?] They are available by mail-order from various suppliers of ‘adult’ videos (and, of course, it’s been claimed that these suppliers, as well as the producers and distributors of such material, are part of Organized Crime).[11] Suppose the total needed is $700 for 20 videos @ $35. (Williams cites more than 50 films, over half of them available on video.[12])
3. Pornography and challenges to traditional criteria of gender and sexual normality:
Williams later published a paper[13] in which she argued that pornography depicting ‘perversions’ (e.g., butche/femme lesbian sex, BD and SM, and bisexuality) should not be censored since viewing it may help to raise important and useful questions about the characterization of sexual normality and the standard categories of sexual practice that are used to discuss these questions. Some of these sexual practices (esp. lesbian sadomasochism[14]) and their depictions have been at the center of debate over MacKinnon/Dworkin-type anti-pornography ordinances. Williams cited an additional 11 films (not cited in Hard Core), all available on video.[15] All of them [or, a representative sample of them] must be viewed to assess her argument fairly and thoroughly. [Suppose (contrary to fact) that one of them is an amateur video of lesbian sadomasochism depicting fisting – anal and vaginal – and excretory functions.] So more money is needed to [rent or] purchase these videos (say, $700 again).
4. Methodological issues in psychological studies of the effects of viewing pornography:
Faculty in sociology, psychology and philosophy of social science want to investigate the methodological issues (concerning links among viewing, attitudes and action) that arise in doing psychological studies of the effects of viewing sexually explicit material on men and on women. (A key premise advanced in support of anti-pornography legislation is that the effect is overwhelmingly negative.) Altogether, the published studies specify, say, ten sexually explicit films that have been used in various experiments. The studies come to significantly different conclusions (e.g., “It’s not the sex, it’s the violence,” ” It is the sex,”…). This might very well be caused by their use of different types of films. Verbal descriptions of the films do not provide sufficient relevant detail.
5. A better psychological study of the effects of viewing pornography:
A faculty team, with a culturally and ethnically diverse membership from all the aforementioned disciplines, writes a proposal in the hope of securing external funding for a much larger, new and improved study on the effects of pornography. (Maybe they’ve learned from the researchers mentioned above.) The proposal is duly submitted to the University Committee on the Use of Human Subjects. Two researchers on psychological trauma who are also experienced therapists testify that although viewing some sexually explicit material may be harmful to some people, the harm is on a par with the effects of viewing Holocaust films, the powerful pro-life film Silent Scream, and videos of the Vietnam war, material that they regularly show in their courses on trauma; they report further that no student has found such material inappropriate for the courses.[16] The committee’s chair believes that MacKinnon’s suggested exemptions for researchers from the model pornography ordinance are not warranted by MacKinnon’s own arguments.[17] Here’s what she says to the newspaper reporter covering the controversy that occurs after the committee votes by an overwhelming majority and over the chair’s opposition to give its approval to the proposal:
It’s irresponsible to test a chemical on people who are more likely than not to suffer bad side effects (some of them quite serious). It’s just the same for porn: in our sexist society, we’re primed for the worst effects of viewing hardcore. You just can’t inoculate against the effects through this sort of ‘education’. What are we going to say to the women who are raped by ‘participants’ in this ‘study’ (the ‘excess rapes’ [!])? “Don’t blame us – we were engaged in the scholarly pursuit of knowledge. Be glad that you’ve helped us to understand how attitude affects action.” Nazi psychology is no better than Nazi medicine! And informed consent is either impossible or useless here: either you tell the subjects so little that the consent can’t be informed, or you tell them so much that you bias the selection of subjects in irremediable ways.[18]
Funding is secured from the Adult Video Association through their Free Speech Foundation. Although it believes that the results will be favorable to its cause and gives that as a reason for funding the study, the foundation board assures the university and faculty team that there are ‘no strings attached’.
6. A (real) course on freedom of speech and censorship:
(Now Emeritus) Professor Thomas Tedford, Professor of Communications at UNC/G and author of a nationally known textbook, Freedom of Speech in the United States, presents his undergraduate class COM 532 “Freedom of Speech and Censorship” with a half-hour slide show to illustrate the sorts of sexually explicit material that are the focus of controversy. At the urging of some local ministers, several students have signed up for the course in order to be present at the slide show so that they can file an obscenity complaint with the DA under the new (1985) and extremely strict state obscenity statutes, which define “disseminating obscenity” very broadly and which make the offense a felony punishable by a fine and imprisonment for up to three years. His attorney (an ACLU member) and the General Counsel for the UNC General Administration (which administers the 16-institution system that includes UNC/CH, NCSU and UNC/G) both tell Professor Tedford to withdraw the visual aids. The General Counsel warns him further that, under NC law, the state is prohibited from defending Professor Tedford if he is charged with a felony.[19] Professor Tedford’s own lawyer advises him that defending against the charge would require at least $10,000 up front (1985 dollars). Tedford decides instead to spend his time updating his textbook and advises other researchers who consult him about their research and teaching, “If you are serious about your research … find a school in another state where the state obscenity law protects academic teaching and research.” [Suppose that the instructor of an NCSU course “The First Amendment and Censorship,” who assigns Tedford’s text, wants to show his slides so that her students will know what kind of expression was chilled by the new (1985) NC state law.]
7. Psychiatric research on sexual deviancy – new therapeutic approaches:
The Department of Psychiatry at the Medical School needs to train its Residents in Psychiatry (all MDs) in the treatment of sexual disorders and dysfunctions (including the paraphilias, as well as what’s colloquially known as “porn addiction”).[20] It is also obligated to treat patients who suffer from these conditions and who seek its help, or who are required by courts to be evaluated or treated. To educate themselves about these disorders, the doctors view videos of the deviant practices that appeal to their various patients, and they study the patients’ reactions to these materials. Some propose to use these materials in aversive behavioral therapy with the patients, and they obtain NIMH funding to study the idea. They want to place orders for the materials and begin their studies
8. “Curing” homosexuality – a new approach:
Professors Stone and Wall, both of the Department of Psychiatry, were among those who opposed the American Psychiatric Association’s 1973 decision to remove “homosexuality” from its list of mental disorders.[21] Their professional experience, theoretical work and personal moral beliefs all lead them to believe that homosexuality is indeed a disease and that it is a cruel violation of the Hippocratic Oath to deprive sufferers of the hope of cure. They argue that previous attempts to cure homosexuality through aversive behavioral therapy failed because the stimuli did not provide sufficiently strong negative and positive stimuli; and they propose therefore to use strongly stimulating homosexual and heterosexual pornography in their treatment program. Their grant proposal to the Nestle Trust, a private nonprofit foundation, has been funded for $250,000, and they have many volunteers for a controlled study. All that remains is to purchase the tapes and begin the therapy trials.[22]
9. Training lawyers and law enforcement officers in obscenity law enforcement:
(a) To educate law enforcement officers about the application of the state’s obscenity law, the Attorney General’s office shows them an extensive slide show (or, series of videotape compilations, drawn from longer videos) of obscene and non-obscene material. Some of the material has been found by courts to be obscene, some found not to be obscene. But some of the material has not been examined by the courts and is the subject of no pending legal actions; it is included to provide clearer guidance about the distinction between obscene and non-obscene than the already-adjudicated cases could alone.[23]
(b) Professor Klensing of the Law School proposes to show the very same materials to the law students taking his class “Practical Prosecutorial Practice.” Klensing, who was largely responsible for drafting the law in question, believes that the AG has misinterpreted its intent and wants to show students (and then the AG) how to put together a more accurately representative show.
10. Studying feminist anti-pornography material, books and videos:
(a) The Canadian Film Board funds the production of Not A Love Story, a powerful anti-pornography film, produced and directed by feminist activists from the US and Canada. It features examples of the material that, they argue, demeans women (and many men). The central figure is Linda Lee Tracey, a stripper who, at the film’s beginning, defends porn and the sex industry, but whose consciousness is raised and who becomes convinced that she and other participants in the sex industry are harming women individually and as a group. Canada, which has stricter obscenity laws than the US, bans the showing of the film. Fortunately for US students, the video is available locally, and anti-pornography feminists are able to show it to help argue for restrictions on, and the eventual elimination of, the sort of obscene material depicted. Some of these feminists teach at local universities and want to show the film in topically relevant undergraduate courses.[24]
(b) Andrea Dworkin’s powerful novel Mercy, which portrays the horrors of rape in vivid prose, is made into a movie that is quite faithful to the book. Almost every viewer who can stand to watch the entire movie agrees that it is the most powerful visual statement against rape and sexual violence ever made; almost all men who see it say that it has forever changed their attitudes toward sexuality, and has made them much more understanding of the fear of sexual violence with which most women live. The book is banned in Canada,[25] and the movie is prosecuted in many jurisdictions of the US for being obscene; in a majority, it is found to be obscene.[26] A professor in the Women’s Studies program proposes to show the film to her class in “Sociology, Law and Gender.” (Since funding for the program has been cut to $0.00, she will use her own money to purchase or rent the film.)[27]
11. Rapes and Tapes in a War Zone: mobilizing public opinion:
In her work with international human rights organizations, Professor Carson, University Law School, has spoken and written about the systematic rapes of women in war-torn Bezor by soldiers. She claims that the soldiers are not only inspired by pornography, but have become amateur pornographers themselves: equipped with camcorders, they have taped the rapes, and the tapes circulate among the soldiers. Under threat of death, relatives of the rape victims are forced to watch the rapes and the tapes. Carson is invited to attend an undergraduate class, “Women in War,” and to give a public talk to the larger community about the atrocities being committed. She will do so on one condition: that, after forewarning the audiences, she be allowed to show excerpts from the videos in both settings; only in this way, she believes, will people be galvanized into action. And, she says, the survivors have a right to have their suffering witnessed by the world community – just as the survivors of Nazi concentration camps had a similar right. How much more quickly would the Nazi persecution of Jews have ended, she asks, if camcorders had existed in 1940?[28] For some time, Carson’s public appearances have been bedeviled by a group of radical sexists, the Raincoat League, who regularly appear to protest her views and activities opposing pornography. Carson is, of course, aware of their presence and, as a brilliant rhetorician, often uses it to her advantage; she is also aware of their prurient interest in sexual violence against women. The League members present are greatly excited by the videos (“This is great stuff,” they say, “women are being hurt, used, violated, stripped”), and they decide to leave for the privacy of their clubhouse.[29]
12. Distinguishing erotica from pornography: studying feminist anti-pornography activists’ attempts to meet the challenge:
Responding to repeated challenges to present a clear and positive vision of human (male and female) sexuality, Women Against Pornography And For Erotica (WAPAFE) launches a series of sexually explicit films. (Signs that group members have shown during protests at local book stores read, “We do not oppose nudity and sexuality,” “We oppose censorship,” “Transform pornography,” and “Boycott local distributors of Penthouse.”[30]) A bitter controversy arises among anti-pornography activists about the morality and political appropriateness of this series; some object to the particular vision portrayed and others argue that no such series should be launched in the current era. The instructors for “Controversies in Feminism” propose to show some of the films and to bring representatives of all sides of the controversy to speak to their class. (WAPAFE says that its films are being ‘misread’ by its opponents,[31] but, it says, that is no reason to ban the films. WAPAFE claims to have made a major contribution towards the creation of “the uncompromised women’s visual vocabulary,” in MacKinnon’s phrase.)
13. Studying civil-rights based proposals for regulating pornography:[32]
(a) The instructor (“Gender and the First Amendment”) argues strongly in favor of MacKinnon/Dworkin-style ordinances, and shows his class examples of the sort of pornography that would meet the law’s definition, as well as examples of other sexually explicit videos (‘erotica’) that would, he believes, be exempt.[33]
(b) The instructor has doubts about the theory behind and the practical applicability of MacKinnon/Dworkin-style ordinances, and shows her class a range of sexually explicit videos to illustrate the difficulties that she sees for the law’s definition of pornography. She also expresses her hope that the difficulties can be overcome and a better model drafted. She intends to end the course with just such a model.
(c) The instructor argues strongly against MacKinnon/Dworkin-style ordinances and, in order to support his opposition, shows the class examples of the sort of pornography that would meet the law’s definition.
(d) Same as (c) except that the instructor endorses Lars Ullerstam’s view in Erotic Minorities (New York: Grove Press, 1966) (i.e., tolerance for allegedly harmless, victimless practices of most perversions) and argues for the essential fluidity of socially constructed gender identity, which she illustrates in a wide range of videos.[34]
[Imagine parallel examples with Nazi practice and ideology as the focus instead of pornography.]
14. Research on the effects of warnings against (or taxes on) pornography:
Some argue that pornography, like smoking, causes great harm. New legislation is suggested to require appropriate warning labels on pornographic material. [WARNING: The Legislature has determined that pornography demeans women and other human beings, and may cause rape, other forms of sexual violence, and/or discriminatory attitudes among those who view it.] Where should the warning be put? It should be difficult to ignore. For videos, the technology of closed-captioning yields the answer: every pornographic video must display one of the approved warnings for at least ten seconds out of every minute at the bottom of the screen. But will this have any significant effect? Won’t the viewers be distracted by other events on screen? How about imposing a ‘sin tax’ on pornography? [“No sexist representation without taxation!”] Would that have any significant effect on consumer behavior? A team of social scientists proposes to study the issue. The instructor for “Social Science and the Law” wants to show his class some of the material, which has been judged obscene as well as pornographic, to illustrate the study’s results.
15. Research and teaching using violent pornography:
[Although this hypothetical is not much different from the preceding examples, I add it partly because of its current – November 2003 – relevance, and because since most of the above was written – 1993-2000 – porn-relevant representations have continue to percolate through American culture, with some effect on community standards.}
A faculty member at a state university requests that the library order Forced Entry – Director’s Cut [Director: Lizzie Borden (aka, “Janet Romano”] Extreme Associates $24.95 + shipping. It is at the center of the first major federal obscenity prosecution in over a decade (see the excerpt below from an August 7, 2003, LA Times article) and, perhaps just as important, is a main focus of Frontline: American Porn already held by the library (HQ471.A44 2002). Indeed, some of the Director’s Cut version is intended as a reply to the criticisms in the Frontline. But of course the replies make far less sense unless one views the material being criticized. (A verbal description of Forced Entry’s content is not as likely to turn one’s stomach as would viewing the movie itself. The producer agrees that the movie is hard-core pornographic, violent and disgusting, as intended.) The material may or may not be intended for use in teaching. What should the library’s response be? What should the response be if (i) the faculty member were to donate a copy to the library or (ii) Extreme Associates were to donate a copy to the library. (The library funds are very low because of state budget cuts.)
Additional questions:
The female pornography director/producer Mason got her start at Extreme Associates, though she’s recently gone out on her own. Her overall style is well illustrated by her most recent post-Extreme release, Sexual Disorder, as well as by several movies she made while at Extreme.
There has of course been a great deal of discussion within and outside of the “adult industry” about the effect on movies of the gender of their producer-directors. For example, several well-known female pornographers (e.g., Candida Royalle, Veronica Hart, Tina Tyler, Jill Kelly, Chloe) have said that an increased presence of women on the other side of the camera, women who are not likely to share the acknowledged misogyny of many men who produce-direct, can only improve the appeal of movies to women. Others of course – e.g. MacKinnon, Dworkin – argue instead that female makers of pornography have been co-opted by the patriarchy. (MacKinnon once remarked something to the effect that feminism “has its Uncle Tom’s, too.”)
One question well worth investigating is whether Mason’s Extreme-period vs. post-Extreme-period movies differ significantly from one another, and if either sort of movie differs significantly from either the female-directed Forced Entry – Director’s Cut or the male-directed movies that are cited in the August 2003 indictment in United States vs. Extreme Associates (.pdf file, US Department of Justice Press release). A closely related question is whether or not this background information about Mason would effect viewer’s interpretations of what they are seeing. And how exactly does one figure out in such instances who’s been co-opted in what way?
One can well imagine an instructor’s seeing these questions as worth investigating after a course has begun, prompted in part by in-class discussions. What should the response would be if she sought to make the relevant material available through the library.
[A not-unlikely piece of perhaps well-taken advice might be: Avoid involving the library and rent the material from a local video store (some of which will waive the small rental fee for educational purposes). In fact, Sexual Disorder is locally available for rental (though one can’t count on its being on the shelf much of the time – a problem if teaching use is planned), but the other material from Extreme is not – and its availability is not going to increase soon.]
Finally, pretend that the Extreme Associates “Federal Five” movies have been found obscene by the western Pennsylvania jury but that the verdict has not yet been appealed.
Consider the sub-cases generated by supposing that the university in question, public or private, is located in the western Pennsylvania district (there are several), and by supposing that it is a state university elsewhere. (What if the material’s to be used locally during the trial, when political and social relevance may be heightened and field trips to the courthouse may be arranged?)
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© 2003 The Times Mirror Company; Los Angeles Times U.S. Indicts Porn Sellers, Vowing Extensive Attack; |
| The Justice Department on Thursday charged a North Hollywood wholesaler of adult films with violating federal obscenity laws, launching the first of what it promised would be a wave of criminal cases against purveyors of pornography. The 10-count federal grand jury indictment against Extreme Associates and its executives, Robert Zicari and Janet Romano of Northridge, raised alarm among adult entertainment companies in the San Fernando Valley, which is considered the capital of the nation’s multibillion-dollar pornography industry. Atty. Gen. John Ashcroft promised upon taking office that he would crack down on the distributors of adult entertainment material such as movies, magazines and Web sites, much as his Reagan administration predecessor Edwin Meese III did in the 1980s. With the government’s antitrust trial against Microsoft Corp. completed and the war on terrorism well underway, Thursday’s charges suggest pornography has moved closer to the center of Ashcroft’s radar. “Today’s indictment marks an important step in the Department of Justice’s strategy for attacking the proliferation of adult obscenity,” Ashcroft said. The department, he said, will “continue to focus our efforts on targeted obscenity prosecutions that will deter others from producing and distributing obscene material.” Executives at Extreme Associates did not return calls Thursday, but one industry official said adult entertainment businesses were preparing for a fight. “This is just another form of harassment by the government,” said William Lyon, executive director of the Free Speech Coalition, a Canoga Park-based trade group for the adult entertainment industry. The government will “try to get convictions on the edges of this industry, and we will fight them all the way.” Thursday’s indictment came after investigators with the U.S. Postal Inspection Service set up a sting operation in Pennsylvania. From September 2002 through July 2003, the indictment says, the defendants sold allegedly obscene material over the Internet and distributed videotapes and DVDs across state lines through the postal system, a violation of federal law. Extreme Associates produces movies such as “Extreme Teen #24” and “Forced Entry — Directors Cut,” which depict the fictional rapes and murders of several women, according to court documents. The sting came in conjunction with an obscenity investigation conducted by the Los Angeles Police Department as well as complaints sent to the Justice Department in western Pennsylvania, said U.S. Atty. Mary Beth Buchanan. “If a company is wanting to take advantage of the Internet for marketing and distribution purposes, it’s their responsibility to make sure they’re not violating local laws,” Buchanan said. “If their conduct is not legal, it’s up to them to take a firm stance not to operate there.” Extreme Associates, a relatively small player in triple X-rated entertainment, has garnered both financial success and public attention in the last several years for its line of hyper-aggressive adult films. The privately held company employs 15 people and has annual sales of $20 million to $49.9 million, according to the U.S. Business Directory. Extreme’s offices were searched in April under a federal search warrant. The unsealed warrant shows that federal and postal investigators seized copies of five different movies as well as sales records, distribution invoices and an array of other business documents. On the company’s Web site, which Thursday featured an American flag waving in the breeze, Zicari posted a statement that said no one had been arrested and that the company remained in business. He vowed to fight the government and wrote, “I definitely will not sit here and cry a bunch of tears.” He went on to name the five allegedly obscene films and, in an act of defiance, announced that the company was selling what he called “The Federal Five” tapes at a discount on the firm’s Web site. Zicari and Romano are scheduled to be arraigned in Pittsburgh on Aug. 27. If convicted, Zicari, 29, also known as Rob Black, and Romano, 26, also known as Lizzie Borden, each could face as much as 50 years in prison and a fine of $2.5 million. The company could pay a fine of as much as $5 million. The case is a flashback to the war on pornography that the government waged in the 1980s, which shut down dozens of production companies and sent executives to prison for distributing raunchy fare. … |
III. SOME LEGAL ISSUES
A. “ACADEMIC FREEDOM” – there’s less protection in the law (at any level) than you might think[35]
Professor Robert M. O’Neil, Founding Director of the Thomas Jefferson Center for the Protection of Free Expression, writes (letter to David Austin, 9/10/93):
…The question you posed is one that ought to yield a satisfying answer, but (given the way in which prosecutorial discretion intervenes in such matters) will likely leave one disappointed. Let me offer my best sense of the probabilities.
While there appears to be no longer a statutory protection or exemption for the academic use of otherwise obscene materials [see B., below], I suspect that a prosecutor would be reluctant – especially in a university community [Is Wake County such a community?] – to charge a faculty member under a statute of this type. Nonetheless, one could envision a less enlightened prosecutor undertaking such a case even for perceived political gain.
Under those conditions, one would be required to fall back on any elusive claim of constitutional protection – a claim which, to my knowledge, has really been invoked only once is such a situation (many years ago in an Indiana federal court to the benefit of the [Kinsey] Sex Research Institute). It is one of those claims one feels ought to be readily available, but is regrettably not there in situations where it may seem most vital.
Thus, while one would strongly wish for the return of the statutory exemption and could not count on protection from any other source, I suspect the law is likely to remain in its current unhappy state for quite some time. Meanwhile, one would hope for legislative leadership which would return the exemption to its rightful place.
B. TEXAS AND NC OBSCENITY LAWS concerning adults: CONTRASTING THE PAST AND PRESENT LAWS: “educational value” no longer matters? – does context matter?
The Texas law §43.23 Obscenity provides for (only?) one exemption:
(g) This section does not apply to a person who possesses or distributes obscene material or obscene devices or participates in conduct otherwise pr[o]scribed by this section when the possession, participation, or conduct occurs in the course of law enforcement activities.
This narrows the exemption in the prior law, which read: “It is an affirmative defense to prosecution under this section that the obscene material was possessed by a person having scientific, educational, governmental, or other similar justification.” This narrowing is endorsed by the conservative organization, Morality in Media as the only exemption that should be permitted in obscenity law. A similar narrowing was effected in the 1985 amendments to NC Obscenity Law:
One exception to the ban on dissemination of obscenity, deleted in the process of amending the 1973 NC law, covered the case in which a library or other scientific institution, e.g., anthropologists or psychologists engaged in a research project on the nature of human sexuality, collects what is clearly hard-core obscenity. This exception had been provided for by including the word “educational” in the list of value-specifications. This word is not included in the 1985 law. (Perhaps the Assembly’s fear was that a disseminator would try to evade the law by opening an ‘Institute for Research on Sexuality’ and giving ‘seminars’ on pornography; but see below.) So, the author of a comparative summary comments, the exception in the earlier law would have accommodated anthropologists’ or psychologists’ inquiry as described; but “the new statute on its face does not” (my italics). He continues: “It is not clear whether there is a First Amendment right to collect obscenity pursuant to such investigations; but even if there is a right, there would be no basis for a challenge to (the new statute) by anyone other than legitimate researchers. If those researchers succeeded, the result of the challenge would result only in reading a narrow exception for researchers into [the relevant] case law” (my italics).
In the 1989 Cumulative Supplement, the authors remark on another necessary condition for obscenity that is specified in both new and old laws: The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.. They comment: “The phrase ‘as used’ might protect serious researchers who are collecting pornographic material that has no inherent serious value” (my italics).
So, some NC legal experts are not sure whether or how educational use of obscene material might be exempted from the new law.
The contention that the exclusion of the term “educational” rendered the provision invalid as a violation of right to education guaranteed by the Constitution of North Carolina Article I, §15, was determined to be without merit (State v. Watson, 88 N.C. App. 624).[36] In July 1987, the NC Supreme Court upheld the constitutionality of the 1985 obscenity laws, but Associate Justice Willis Whichard warned, “Fact situations are readily conceivable in which the statute at issue, if improperly applied, would be unconstitutional.” Would educational use constitute such a situation?
To anticipate one likely answer: It is not at all clear that putting an obscene work to serious educational use confers serious literary, artistic, political or scientific value on the work itself. And the clear intent of the law is to define the conditions under which the work itself is obscene. No doubt, those porn theater operators who’d run phony ‘Institutes for Research on Sexuality’ would claim serious educational value for their uses of pornography, and legislators probably wanted to block a defense they considered evasive. Maybe some such defenses ought constitutionally to be allowed. Would a court case be necessary to establish this? So the legal experts quoted above seem to suggest.[37]
Maybe the intent of the Assembly was not to prohibit educational uses, and it confusedly (?) thought that any work with a legitimate educational use would itself automatically have one or more of the other values: serious literary, artistic, political or scientific value. Then again, maybe that was not its intent. Present officials might argue that the very act of deleting “educational” makes it clear that obscene works are not to be tolerated even if their use is in a recognized educational context. (Supporting arguments might be given. The chair of the University Committee on the Use of Human Subjects, above, seems to have adumbrated one; MacKinnon and Dworkin might well argue similarly.)[38] [39]
OBSCENITY LAW: DOES EDUCATIONAL VALUE MATTER? – INFORMAL ADVICE FROM SOME ATTORNEYS:
Does your locality’s obscenity law offer explicit protection for material that has serious educational value? If not: (i) Request that your institution’s attorney seek a declaratory judgment to immunize against prosecution. (ii) Take reasonable measures to insure that no legal minors participate in the course. (iii) To minimize the risk of illegal dissemination of the sexually explicit materials, limit use of the materials to students in the course and any faculty with a legitimate research interest in the materials; implement a system, either through the library or department, to verify that material is checked out only to those authorized individuals (e.g., have IDs checked against a list). (iv) Direct a large proportion of class lecture and discussion and student study to nonobscene materials. (v) Inform students that if they disseminate any of the sexually explicit materials, then they, too, are at risk of prosecution. (vi) At the end of the class, collect any sexually explicit material distributed to students. (vii) Close to the time when the course is to be offered, let your institution’s attorney review materials to be distributed to students so that their risk can be minimized and so the administration will not be surprised if a student’s parent calls to inquire about the course.
To further reduce the risk of prosecution: (viii) Keep the video material to just a few items. Generally, videos are riskier than still photographs, which are riskier than nonpictorial print material, though even use of the latter is not without risk. (ix) Use materials that are readily available in the community, which speaks to the issue of ‘community standards’, a key provision of the Miller test for obscenity. (x) Rely on university funding sources (e.g., library or department budgets) in to acquiring materials (for purchase or rental) – although this also leaves a public institution open to attack for ‘misuse of public funds’. (xi) Have students write a paper about a particular item. (xii) Have students participate in social scientific research on the effects of any material viewed to help make the case for material’s inccontext serious scientific value. (xii) Include discussion of feminist and/or conservative religious perspectives on regulation of pornography to help make the case for the inccontext serious political value of the material viewed.
Obscenity law is always local and political, so you should seek the advice of an attorney who is experienced with local obscenity law and familiar with the local political climate.
NOTES
[1]A definition similar in spirit is given and defended in: Helen E. Longino, “Pornography, Oppression, and Freedom: A Closer Look,” in Laura Lederer, ed., Take Back the Night: Women on Pornography (William Morrow, 1980). See also the body of work developed over the past twenty years by Frederick Schauer, including his Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982); and “The phenomenology of speech and harm,” Ethics v103 n4 (July 1993) 635-653. For an excellent defense of the description of pornography as a practice, see Rae Langton, “Speech Acts and Unspeakable Acts,” Philosophy and Public Affairs vol 22 no 4 (Fall 1993) 293-330. Two of the most controversial provisions of the model ordinance, concerning trafficking in pornography and unallowed defenses against charges of coercion into pornography, are given in the notes below. A recent defense of this ‘civil-rights approach’ to regulating specifically violent pornography is: Cass R. Sunstein, Democracy and the Problem of Free Speech, Chapter 7: “More Hard Cases.” Other, related proposals can be found in Elena Kagan, “Regulation of Hate Speech after R.A.V.,” University of Chicago Law Review v60 n3-4 (Summer Fall 1993) 873-902; and Marianne Wesson, “Girls Should Bring Lawsuits Everywhere … Nothing Will Be Corrupted: Pornography as Speech and Product,” University of Chicago Law Review v60 n3-4 (Summer Fall 1993) 845-872. Some common criticisms of the MacKinnon/Dworkin proposal may be found in: Lisa Duggan, Nan Hunter and Carole S. Vance, “False Promises: Anti-pornography Legislation in the U.S.,” in Varda Burstyn, ed., Women Against Censorship (Toronto: Douglas and McIntyre, 1985), 130-151; and Nadine Strossen, “A Feminist Critique of ‘The’ Feminist Critique of Pornography,” Virginia Law Review v79 (August 1993) 1099-1189. Two of the most interesting kinds of criticisms are developed by Robin West and by Drucilla Cornell. West, who writes with unusual clarity, argues that MacKinnon is insufficiently attentive to the complexities of the psychological data about women’s sexuality yielded by the technique of consciousness raising. Cornell faults MacKinnon for failure to develop a positive vision of human sexuality, and so for failure to explain how to get from awful ‘here’ to better ‘there’. See: Robin West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” Wisconsin Women’s Law Journal 3:81, 1987, 81-145; Robin West, “The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General’s Commission on Pornography Report,” American Bar Foundation Research Journal No. 4 (1987) 681-711; and “Pornography as a Legal Text: Comments from a Legal Perspective,” in Susan Gubar and Joan Hoff, eds., For Adult Users Only: The Dilemma of Violent Pornography (Bloomington: Indiana University Press, 1989), 108-130; and Drucilla Cornell (e.g., Beyond Accommodation and Transformations). Since MacKinnon herself claims to have seen far more porn than almost any male in her audiences, and has nevertheless managed to transcend the negative effects of such exposure, her own goals would seem to require explication of those features of her (and Dworkin’s) personality and circumstances that allowed her transcendence. Very likely, it is by close study of such people that it will be discovered how to make the transition from a pornographic society to an erotically healthy one; if pornography is rape-like, then the literature on survivors of sexual abuse should yield pertinent information about what makes it feasible for the abused to grow beyond their abuse. For insightful remarks about what MacKinnon believes herself to be doing, see Stanley Fish, Doing What Comes Naturally (Duke University Press, 1989), 16-23, 25.
[2]This volume also contains reports of some efforts to determine empirically if the distinction can reliably be made in practice. The reference usually cited as the contemporary source of the distinction is Gloria Steinem, “Erotica and Pornography: A Clear and Present Difference,” in Laura Lederer, ed., Take Back the Night: Women on Pornography (William Morrow, 1980) 35-39. On one of the few attempts to produce “women’s pornography,” see: Susan Keller, “Powerless to Please: Candida Royalle’s Pornography for Women,” New England Law Review 26 (Summer 1992): 1297-1307. Keller faults Royalle’s Femme Productions films for failure to explore the tensions created by the unequal power relationships in many male-female sexual encounters.
[3]The court held, in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), that expert testimony as to obscenity is not necessary when the material at issue is itself placed in evidence.
[4]The relevant standard here is “reasonable person” and not “average person applying contemporary community standards.”
[5]This presumption is rebuttable. According to the opinion in Yorko v. State (Cr.App. 1985) 690 S.W.2d 260, this Subsection does not criminalize the use or possession without intent to promote, but does criminalize the promotion of and possession of such devices with intent to promote, when the purpose is for sexual stimulation and gratification, and as such may be contrasted with contraceptives associated with the constitutionally protected decision not to beget a child, and is not unconstitutional as violative of the fundamental right to privacy.
[6]For more on the recent history of Texas obscenity law, see: Mike McColloch and David W. Coody, “Annual Survey of Texas Law: Criminal law – Obscenity,” Southwestern Law Journal (Texas) (1983) 399; “Changing Standards of Obscenity in Texas,” Southwestern Law Journal (Texas) (1981) 1201; and Franklin Holcomb, “Obscenity Laws,” Houston Law Review 17 (1980) 835. (In 856n123, Holcomb reports that one Senator didn’t even open the package of suporting materials that was distributed by the House sponsor of the 1979 amending bill, since the package came with a warning that it contained some illustrative material.)
[7]Access to pornographic material in these cases seems to be both a scholarly and pedagogical necessity, especially given the deep ignorance and bias with which many approach these issues. Just as art history students must be able to examine the art they are studying, and medical specialists in training must have access to patients with the relevant maladies, so must students of this topic have access to relevant materials. And just as it is not necessary for art history students to create the art or doctors to contract their patients’ maladies, it is not necessary for students of this topic to participate in the creation of obscene or pornographic materials – so they would not be asked to do so. Although the distinction between viewing and participation seems obvious enough, some discussions seem to blur it – so I emphasize it here.
[8]See Ann Snitow, Christine Stansell, and Sharon Thompson, eds., Powers of Desire: The Politics of Sexuality (New York: Monthly Review Press, 1983).
[9]The most comprehensive exploration of the question Should a library have such materials? is Martha Cornog, ed., Libraries, Erotica, and Pornography (Phoenix, Arizona: Oryx Press, 1991).
[10]Two other film theorists who have done important work on the genre are Constance Penley [e.g., “Feminism, Psychoanalysis, and the Study of Popular Culture,” in Lawrence Grossberg, Cary Nelson and Paula A. Treichler, eds., Cultural Studies (NY: Routledge, 1992) 479-500; “Brownian Motion: Women, Tactics and Technology,” in Constance Penley and Andrew Ross, eds., Technoculture (University of Minnesota Press, 1991), 135-161], and Mandy Merck [e.g., “More of a Man,” Perversions (Virago Press, 1993), 217-235].
[11]It may be feasible to buy used magazines or videos, or to secure donations or educational discounts from publishers or distributors. This would alleviate some concerns about contributing to any illegal organizations. Recall, however, that almost any business that deals in large quantities of small denominations is a likely target for money-laundering abuses.
[12]Other uncited films may also be important for assessing her argument, e.g., ‘adult’ amateur videos, the most rapidly growing portion of the video market; the most popular nonamateur tapes produced in the last five years, since Williams’s book was finished, to indicate changing themes; ‘adult’ tapes about making ‘adult’ features, e.g., Behind the Scenes with Angela Baron, Behind the Scenes: The Making of the Wil & Ed Movies, Introducing Tracey Wynn, Lifeguard, Making of a Porn Movie, Porn Screen Tests, Pornography in NY, Sex Lives on Porno Tape, Tori Welles Goes Behind the Scenes; or, for the purposes of supposed contrast, the Better Sex Video series, sexually explicit videos produced by sex educators and therapists (distributed by the Sinclair Institute in Chapel Hill, NC) to teach approaches for adult heterosexual activity; volume I is “Basic Techniques,” volume II is “Advanced Techniques,” and volume III is “Games and Toys,” including bondage & domination games.
[13]“Pornographies on/scene, or diff’rent strokes for diff’rent folks,” in Lynn Segal and Mary McIntosh, eds., Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992), 233-265. See also: Linda Williams, “Second Thoughts on Hard Core: American Obscenity Law and the Scapegoating of Deviance,” in Pamela Church Gibson and Roma Gibson, eds., Dirty Looks: Women, Pornography and Power (London: BFI Publishing, 1993), 46-61; and “A Provoking Agent: The Pornography and Performance Art of Annie Sprinkle,” in the same collection, 176-191. And see: Arthur and Marilouise Kroker, eds., The Last Sex: Feminism and Outlaw Bodies (NY: St. Martin’s Press, 1993). For recent and on-going research on the effects of web access, see Theresa M. Senft, Homecam Heroines:Gender, Celebrity and Auto-Performance on the World Wide Web.
[14]See, for example, Elizabeth A. Meese, (Sem)erotics: theorizing lesbian: writing (NY: NYU Press, 1992), and references cited therein. See also Mandy Merck, “The Feminist Ethics of Lesbian S/M,” Perversions (Virago Press, 1993), 236-266.
[15]Punishment of Anne (1979), Every Woman Has a Fantasy (1984), Suburban Dykes (1990), Bi-Coastal (1985), Bisexual Fantasies (1986), Bi-Night (1985), Bi-Dacious (1985), Bi-Mistake (1985), Karen’s Bi-Line (1989), Bi- and Beyond: The Ultimate Union (1986), Bi- and Beyond III: The Hermaphrodite (1991).
[16]On powerful material: here are (close paraphrases of) remarks on student experience with classes that have included viewing of pornography:
“Women’s Studies classes are the one place where it would be safe to discuss this material. Please try to find a way to include it in your classes. There is a lot of confusion and anger around the issue of pornography, sex, etc., and if we can’t discuss it in Women’s Studies, where will we be able to deal with it?”
“Several students reported being very disturbed by Dreamworlds [a video on sexist images in MTV Rock] – more than one to the point of actually vomiting after leaving class. But [even] the students who were physically ill thought we should continue to use the video in the future.”
“Several students felt they had to leave the room, but none of them suggested that this video [Not a Love Story] be dropped from this course.”
“Do not be afraid to broach subjects that may cause a student to remember his/her trauma.”
“I think we forget how strong people are.”
“I saw The Silent Scream [a powerful anti-abortion film] in a Women’s Studies class as an undergrad, and it was pretty horrible to watch, but it never occurred to me that it wasn’t appropriate for the class. [Why shouldn’t the same be true of porn?]”
Some helpful references: Amanda Konradi, “Teaching About Sexual Assault: Problematic Silences and Solutions,” Teaching Sociology 21 (Jan 1993): 13-25; Susan Swartzlander, Diana Pace and Virginia Lee Stamler, “The Ethics of Requiring Students to Write about Their Personal Lives,” The Chronicle of Higher Education, February 17, 1993, B1-2.
[17]It’s not all that clear that there actually is an exemption for researchers in the ordinance. For further discussion, see my “(Sexual) Quotation without (Sexual) Harassment?”
[18]An extensive search of the relevant social science literature yields no credible support for the very strong and crucial causal assumptions on which this imaginary chair’s objection is based. (None of the proposed civil-rights based regulation requires such a strong causal connection as would the chair’s objection.) A still helpful discussion of this area of social science research is Edward Donnerstein, Daniel Linz and Steven Penrod, The Question of Pornography: Research Findings and Policy Implications (New York: Free Press, 1987). As far as I can tell, the post-1987 literature contains nothing that would significantly alter the rather cautious conclusions drawn by Donnerstein et al., which are sometimes caricatured in the slogan, “it’s not the sex, it’s the violence.” A careful recent study on correlations is: Cynthia Gentry, “Pornography and Rape: An Empirical Analysis,” Deviant Behavior: An Interdisciplinary Journal 12 (1991): 277-288. An ‘anti-censorship’ overview is provided by Marcia Pally, Sense and Censorship: The Vanity of Bonfires: Resource Materials on Sexually Explicit Material, Violent Material and Censorship: Research and Public Policy Implications (Americans for Constitutional Freedom, 1991). For constrasting views, see: D. Zillmann and J. Bryant, eds., Pornography: Recent Advances and Policy Considerations (Hillsdale, NJ: Lawrence Erlbaum, 1989); Catherine Itzin, ed., Pornography: Women, Violence and Civil Liberties (New York, Oxford University Press, 1992); James Weaver, “Responding to Erotica: Perceptual Processes and Dispositional Implications,” in J. Bryant and D. Zillmann, eds., Responding to the Screen: Reception and Reaction Processes (Hillsdale, NJ: Lawrence Erlbaum, 1991), 329-354 (-Weaver’s work did not, however, involve viewing either erotica or pornography; instead, he used mass media materials); Hans-Bernd Brosius, James B. Weaver, III, Joachim F. Staab, “Exploring the Social and Sexual ‘Reality’ of Contemporary Pornography,” Journal of Sex Research Vol. 30 No.2 (May 1993) 161-170; Wendy Stock, “The Effects of Pornography on Women”; Michael G. Dalecki and Jammie Price, “Dimensions of Pornography,” Sociological Spectrum vol. 14 no. 4 (1994); and Diana E. H. Russell’s work, cited in other notes. For overviews of how ideology affects research in this context, see: Daniel Linz, Neil M. Malamuth and Katherine Beckett, “Civil Liberties and Research on the Effects of Pornography,” in Peter Suedfeld and Philip E. Tetlock, eds., Psychology and Social Policy (NY: Hemisphere Pub/Taylor & Francis, 1992) 149-164; Dolf Zillmann, “Pornography Research, Social Advocacy, and Public Policy,” in Peter Suedfeld and Philip E. Tetlock, eds., Psychology and Social Policy (NY: Hemisphere Pub/Taylor & Francis, 1992) 165-178; and Daniel Linz and Neil Malamuth, Communications Concepts 5: Pornography (Newbury Park, CA: Sage Publications, 1993). For discussion of this research in a legal context, see Richard Green, Sexual Science and the Law (Cambridge, MA: Harvard University Press, 1992), and Richard Posner, Sex and Reason (Cambridge, MA: Harvard University Press, 1992). I have not been able to find any reports of systematic studies of the effects of participation in the creation of pornography, though there are anecdotal reports of individual cases in which the effects were said to be negative, positive or mixed. (Of course, none of the research or teaching discussed here requires any such participation.) Because of their frequent mention by MacKinnon, the best known accounts of negative effects are Linda Lovelace, Ordeal (Citadel Press, 1980); Linda Lovelace, Out of Bondage (L. Stuart, 1986). For other accounts and perspectives, see: Jerry Butler (as told to Robert H. Rimmer and Catherine Tavel), Raw Talent: The Adult Film Industry As Seen By Its Most Popular Male Star (Prometheus Books, 1991); Frederique Delacoste and Priscilla Alexander, eds., Sex work: Writings by Women in the Sex Industry (Cleis Press, 1987); Gauntlet, Volume I, Number 5 (1993), “Porn in the USA”; John Hubner, Bottom Feeders (Doubleday, 1993); David McCumber, X-Rated (Simon & Schuster, 1993); Roberta Perkins and Garry Bennett, Being a Prostitute: Prostitute Women and Men (Boston: George Allen and Unwin, 1985); Robert J. Stoller and I. S. Levine, Coming Attractions: The Making of an X-Rated Movie (Yale University Press, 1993) [-on the making of Stairway to Paradise VCA Pictures, 1990]; Robert J. Stoller, Pain and Passion: A Psychoanalyst Explores the World of S & M (Plenum Press, 1991); Robert J. Stoller, Porn: Myths for the Twentieth Century (Yale University Press, 1991).
[19]The relevant NC statute appears either to have been mischaracterized by this General Counsel or misunderstood by Professor Tedford.
[20]See the Diagnostic and Statistical Manual of Mental Disorders IIIR (DSM IIIR) (American Psychiatric Association, 1987), 279-296; see also “Gender Identity Disorders,” 71-78.
[21]In DSM IIIR disorder 302.90 “Sexual Disorder Not Otherwise Specified” is listed and exemplified by “persistent and marked distress about one’s sexual orientation.” This is the category under which a homosexual would most likely be treated in billable fashion.
[22]The majority opinions in Miller v. California SCUS 1973 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and New York v. Ferber SCUS 1982 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, both highlight the use of sexually explicit material in medical education and research as clearly protected. But, as Rosalind A. Coleman and James Rolleston, “Anatomy Lessons: The Destiny of a Textbook, 1971-72,” South Atlantic Quarterly 90:1 (Winter 1991) 153-173, shows, the context of a medical text is no guarantee of ‘purity in representation’. The anatomy text discussed used out-takes from Playboy centerfold photo sessions to illustrate female anatomy.
[23]I am told that there actually is such a slide show for the NC State Police.
Judges and juries must view material to decide whether or not it is obscene. It might be helpful for them to view additional material that has already been found by courts to be obscene. Perhaps this sort of viewing, as well as that by law enforcement officers, is permitted by NC law. That is, education for the purpose of law enforcement is somehow covered. The question would then be, What general principle allows this sort of exception, but does not allow others of the sort(s) considered here?
That even this sort of exception may be allowed under NC law is called into question by a case brought in 1989 in Charlotte (Mecklenburg County), NC. Lawyers [Bradley Shafer et al] defending clients against a ‘dissemination of obscenity’ charge [State of NC v. Cinema Blue of Charlotte 1989 (98 NC App 628, 392 SE2d 136); the films in question were: Cumshot Revue Vol. 4 and The Big Switch] asked Professors Linz, Donnerstein, Scott (OSU), as well as sociologists from UNC/CH, Duke and NCSU, to determine empirically what community standards were in Mecklenburg County. Since this would have involved showing some local citizens potentially obscene material, the researchers asked the DA for his assurances that he’d not prosecute them; the DA refused. The presiding judge in the case then refused to issue the relevant protective order. The researchers brought suit in Federal district court, and succeeded in getting the federal judge to issue a protective order. Three days before the end of their data-gathering, they were forced to terminate their study when the 4th Circuit Court of Appeals vacated the protective order [on procedural grounds]. The presiding judge in the obscenity trial then refused to allow the researchers to present their data or results, not because the study was incomplete, but because it would prejudice the jury, who knew better anyway what their community’s standards were. See: Daniel Linz et al., “Estimating Community Standards,” Public Opinion Quarterly v55 n1 (Spring ’91). Ironically, the results of the study strongly suggest that individuals tend falsely to believe that their neighbors are less tolerant than they are of pornographic material (-just the opposite of what studies on violent material have found: we tend to believe that our neighbors are more tolerant of violent material than they actually are). See also Daniel Linz and Neil Malamuth, Pornography. Communications Concepts Series Volume 5 (Newbury Park, Sage Pubs., 1993); Sandra S. Evans and Joseph E. Scott, “Social Scientists as Expert Witnesses: Their Use, Misuse and Sometimes Abuse,” Law and Policy Quarterly, Vol. 5, No. 2 (April 1983): 181-214; Joseph E. Scott, David J. Eitle and Sandra Evans Skovron, “Obscenity and the Law: Is It Possible for a Jury to Apply Contemporary Community Standards in Determining Obscenity?,” Law and Human Behavior, Vol. 14, No. 2 (1990): 139-150; and Joseph E. Scott, “What is Obscene? Social Science and the Contemporary Community Standard Test of Obscenity,” International Journal of Law and Psychiatry, Vol. 14 (1991): 29-45.
[24]For criticism of NALS, see B. Ruby Rich, “Anti-Porn Soft Issue, Hard World,” in Patricia Erens, ed., Issues in Feminist Film Criticism (Indiana University Press, 1990), 405-417; and I. C. Jarvie, Thinking about Society: Theory and Practice (D. Reidel, 1986).
[25]The book was actually interdicted at the border by Canadian Customs officials, enforcing their interpretation of laws based in part on Dworkin’s own legislative testimony in the US and Canada. MacKinnon has argued that the interdiction was based on a misinterpretation of those laws.
[26]See Harriett Gilbert, “So Long As It’s Not Sex and Violence: Andrea Dworkin’s Mercy,” in Lynne Segal and Mary McIntosh, eds., Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992).
[27]See note above, on Dworkin on censorship of her own work. Recently, after much reflection, Diana E. H. Russell has written and published Against Pornography: The Evidence of Harm (Russell Books, 2018 Shattuck Avenue, Berkeley, CA 94704, 1993; ISBN 0-9634776-7; $14.95 postpaid), which contains many “illustrations from contemporary pornography,” because she believes that this is the best way to mobilize opposition.
[28]A similar example can be constructed concerning the practice, common in some cultures, of female genital mutilation, which is the focus of a new documentary, Warrior Marks (Pratibha Parmar, producer), inspired by Alice Walker’s novel, Possessing the Secret of Joy.
[29]The showings of the videos clearly have serious social, political, educational and perhaps scientific value. But it’s not the showings that are addressed by (state) obscenity law; rather it is the videos themselves, and no one believes that they have serious artistic, social, educational, political or scientific value – indeed, that is the main reason that they’re being shown: to use their disvalue as an irresistibly vivid call to action against what they depict.
If showings (or more broadly, uses) were at issue, then wouldn’t showing otherwise obscene pornography to serious students by serious scholars in the context of a serious course be legally justified as having serious social, political and certainly scientific value – if “scientific” were given an appropriately broad meaning of ‘contribution to knowledge’?
If the concept of obscenity (or pornography) is not context-dependent, then the law might (i) silence the most eloquent testimony against the harms to which pornography may contribute; (ii) block the efforts of law enforcement officials who cannot be instructed in the law’s application; (iii) impede medical progress in preventing and treating sexual disorders. If the concept of obscenity (or pornography) is context-dependent, then the law should at least allow for the possibility that research and teaching uses of the material have relevant artistic, social, political, educational and/or scientific value.
Some justices of the Supreme Court of the United States have clearly recognize the context-dependency of the relevant determinations. For example, Justice Stevens, concurring in the judgment in New York v. Ferber SCUS 1982 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, writes:
A holding that respondent may be punished for selling these two [child-pornographic] films does not require us to conclude that other users of these very films, or other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection. The question of whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context.
In light of the excerpt from Justice Stevens’s concurring opinion, and the preceding material, one could argue that it is the educational use of the material in medical contexts that affords it First Amendment protection; and so that, to the extent that a use resembles those characteristic of medical contexts, it should enjoy proportionate protection. Curing the social and psychological ills that have resulted from “layers of prudery obscuring a subject long irrationally kept from needed ventilation” (Justice Burger for the majority in Miller) and investigating “sex, a great and mysterious motive force in human life, [that] has indisputably been a subject of absorbing interest to mankind through the ages; … one of the vital problems of human interest and concern” (Justice Brennan) should on the aforementioned basis be accorded a high level of constitutional protection.
B. Ruby Rich, “Anti-Porn: Soft Issue, Hard World,” discusses the contextual nature of pornography/erotica distinctions:
Two stories. Back in 1969, when I first started thinking about this distinction [between pornography and eroticism], my best friend worked as an artist’s model; so, eventually, did I. She would model for painters but never for photographers, since with them you’d have no control over who saw your body. Once she broke the rule and modeled for a mutual friend, a photographer who did a series of nude photographs of her that we all loved. He had a show in a local gallery. One photograph of my friend was stolen out of the show. She went into a terrible depression. She was tormented by the image of an unknown man jerking off to her picture. Test: was that photograph erotic or pornographic?
Back in 1980, a woman I know went to spend the day with a friend’s family. Looking around the house, what should she discover but the father’s personal copy of the Tee Corrine cunt coloring book. Made for the women’s community, the book usually was found only in feminist bookstores. Test: is the book erotic or pornographic?
I have other friends and other stories. Surely it is not merely an image which is one thing or the other, but equally (if not foremost) the imagination that employs the image in the service of its fantasy. It is time that the anti-porn activists stopped kidding themselves about the fine distinction between eroticism and pornography. If any extra test is needed, the [anti-porn] film [Not a Love Story] offers us one in its final freeze-frame shot of a bikini-clad Linda Lee [reformed sex-worker], snapped in midair, seaweed in hand. It is meant as an image of “wholeness, sanity, life-loving-ness” according to the filmmakers, but it comes out looking more like a soft-core Tampax ad. Is this image, perchance, pornographic, as well? (410).
One of the best reminders of the importance of context is Janice Perry’s “Censored Erotica”:
It was lying beside me, verbing quietly. I could hear its steady breathing and the soft sounds of its verbing. I began to get adjective, so I turned to it and put my body part around it. It looked deep into my body part and verbed me with its body part. I began to verb and to verb its body part with mine. It moaned and said, “I emotion it when you verb me like that.”
There was the sound of its adjective body part rubbing against my body part and the slow rhythm of our verbing each other. It was adverbly verbing me and I began to verb. I saw its color body part and grew more and more emotioned. I knew I would soon verb. My skin verbed with excitement, and I felt tiny nouns shooting up and down my body part. I said, “Faster, faster my endearment, I’m going to verb! Yes, I’m Verbing, I’m VERBING! VERB me! VERB me! Oh endearment, you are the SUPERLATIVE! I emotion you.”
We lay together in silence, and then got up and ate three entire packets of nouns.
Other pertinent readings: Laura Kipnis, “(Male) Desire and (Female) Disgust: Reading Hustler,” in Lawrence Grossberg, Cary Nelson and Paula A. Treichler, eds., Cultural Studies (NY: Routledge, 1992) 373-391; and Lisa Frank and Paul Smith, Madonnarama: Essays on Sex and Popular Culture (San Francisco: Cleis Press, 1993).
[30]See the photograph of the protest at a Durham, NC, B. Dalton bookstore, in Diana E. H. Russell, ed., Making Violence Sexy: Feminist Views on Pornography (New York: Teachers College Press, Teachers College, Columbia University, 1993), 111. [I’ve invented the descriptive name for the group here.]
[31]See “(Sexual) Quotation without (Sexual) Harassment?” on MacKinnon on misreading Lolita.
[32]For the full text and explanation of the MacKinnon/Dworkin Minneapolis ordinance see http://www.nostatusquo.com/ACLU/Porn/newday/TOC.htm
[33]Is there a significant risk that a male instructor in a course involving sexually explicit materials could be charged with sexual harassment by a female student? Would it help to have a female co-instructor? There is said to be case law that helps to define sexual harassment in the classroom vs. the workplace. [It may be nonharassing for, say, an instructor to display a picture for illustrative purposes (“This is the picture that the employer posted, and the court held that such posting under these circumstances constituted sexual harassment.”).] See my “(Sexual) Quotation without (Sexual) Harassment?”
[34]See Linda Williams’s first paper, cited above, for example 3.
[35]See William W. van Alstyne, “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review,” 79-154; and Robert M. O’Neil, “Artistic Freedom and Academic Freedom,” 177-193, both in: William W. van Alstyne, ed., Freedom and Tenure in the Academy (Duke University Press, 1993). See also William W. van Alstyne, The First Amendment: Cases and Materials (Westbury, NY: The Foundation Press, 1991), 676, 676n35.
[36]Here’s (all) of what the court had to say on this issue:
… we are not convinced that the right to an education involves a right to disseminate material which, but for its used [sic] in an educational context, would otherwise be deemed obscene. In our view, any serious educational value of sexually explicit materials must be derived in turn, from some serious literary, artistic, political, or scientific value.
It is not clear how much assistance this view is to educators, since there is no explicit recognition of the contextual nature of the values from which educational value must supposedly be derived. But there is at least the implication that there could be uses of otherwise obscene material in an educational context, which uses would render the material nonobscene.
[37]A possible further complication is raised by the interpretation of the relevant concept of “community standards.” Since universities often function as somewhat separate communities in themselves, the communities whose standards are at issue may be different from the ones usually in question in obscenity law. If so, it is conceivable that a work might be legally obscene if shown at one college and not legally obscene at another college in the same city or county. This result might be avoided if the relevant community were taken to be that of ‘(reasonable) researchers’. It might be conceptually simpler to amend the law to allow educational use of otherwise obscene materials by ‘legitimate’ researchers. Now that much pornography is consumed via the Internet, the notion of community is even more obscure and, some argue, has become unworkable.
[38]Two indicators of NC political climate: (i) the Assembly, concerned about appearing to tolerate or endorse homosexuality, refused to repeal NC’s sodomy law, which specifies oral or anal sex of any kind – even heterosexual – as felonies. The law is rarely enforced, but it is enforced – in one recent case that I recall, where only heterosexual activity was at issue. The rejected amendment read, “This section shall not apply if the act occurs in the privacy of a home between consenting adults and is not for hire.” (ii) A Senator introduced a “bill that would ban teachers from talking about unlawful sex acts…. If it had passed, the law would have prohibited classroom talk about oral sex, sodomy and bestiality – all illegal acts in North Carolina.” (Raleigh News and Observer, 2/26/94) More exactly, the bill directs local school boards to prohibit the teaching of any information that promotes sex practices unlawful in North Carolina and so would prohibit some classroom discussion of the law it seeks to enact. The bill had support from other legislators. (Despite Lawrence et al v. Texas, there appears some uncertainty among law enforcement officials about whether all aspects of NC anti-sodomy law are unconstitutional.)
See also: H. Robert Showers and Samuel T. Currin of the NC Task Force on Pornography, Organized Crime and Child Abuse: “The State of Pornography,” 22 February 1985, Campbell Law Observer; “Analysis and Proposed Revision of State Pornography Laws,” 26 April 1985, Campbell Law Observer; “Regulation of Pornography on Cable Television: Can It Be Done?,” 31 May 1985, Campbell Law Observer. In “Analysis and Proposed Revision,” Currin and Showers write (p2c1), “Other minor changes will bring our obscenity statute in line with the Supreme Court decisions defining obscenity. The term ‘educational‘ is conspicuously absent from the famous third prong of the Miller v. California test. Therefore, it should be removed from North Carolina’s definition of obscenity to avoid confusion and possible Constitutional challenges for exceeding the scope of Miller.” In Samuel T. Currin and H. Robert Showers, “Regulation of Pornography – the North Carolina Approach,” Wake Forest Law Review Vol. 21 No. 2 (1986) 263-361, “All of the additions or deletions to subsection (b) were made to update North Carolina obscenity law to more closely adhere to the Supreme Court decision of Miller and its progeny…. Another change in the obscenity test is the absence of the term ‘educational,’ which also is conspicuously absent from the third prong of the Miller test. … The aim of the[se] revisions … is to streamline prosecution, reduce the legal basis to challenge convictions, and to eliminate potential grounds of constitutional challenges.” (283) These remarks appear to entail that in the authors’ view, the term “educational” was not functioning simply to clarify the definition in Miller, but actually added something potentially inconsistent with the defintion. I have written to Mr. Showers to ask what, in his view, the term “educational” added (see next note); no reply yet. (“…Mr. Showers was the primary author of the new N. C. pornography statutes.” 263n**)
[39]I have written to anti-pornography groups, conservative [Americans for Decency, Children’s Legal Foundation, Citizens Against Pornography, National Coalition Against Pornography, Morality in Media, American Center for Law and Justice (Sekulow), American Family Association (Wildmon), Eagle Forum (Schlafly), Research Council on Ethnopsychology, Christian Coalition, H. Robert Showers (National Law Center for Children and Families)] and feminist (Feminists Fighting Pornography, Women Against Pornography), as follows:
For my research concerning sexuality and the law, I am writing to learn your position (if any) on whether use of sexually explicit materials is ever appropriate for university-level research or university-level teaching with those who are legally adult; and, if so, exactly what sorts of uses of such material would, in your view, be appropriate. I would also be interested in learning your position, if any, on (a) MacKinnon/Dworkin-type civil-rights based approaches to regulating pornography; and (b) on the suggestion that pornography and alcoholic beverages are enough alike to warrant similar approaches to their legal control, including imposition of ‘sin taxes’. I append a list of examples [included in this page] that I hope will help to clarify my inquiry.
I received only one response that attempted to address my questions, and no response from most. The one attempt was from Mr. Peters of Morality in Media, who replied:
We favor a “defense” or “exemption” to an obscenity law only where the conduct occurs in the course of law enforcement activities. See subsection (g) of enclosed copy of the Texas Obscenity Law.
We … wonder what real justification there is for exposing students and others to hardcore, illegal pornography, which by definition “lacks serious artistic, literary, political or scientific value.”
I have sought further clarification:
The first paragraph quoted entails that Morality in Media favors no exemption for any conduct that occurs in the course of medical education – precisely the exemption that the US Supreme Court has cited as paradigmatic of those necessary for respecting legitimate First Amendment concerns. (The majority opinions in Miller v. California SCUS 1973 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and New York v. Ferber SCUS 1982 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, both highlight the use of sexually explicit material in medical education and research as clearly protected.) It might be replied that, as used, an image or film that would otherwise meet the definition of “obscenity” might acquire scientific value and so be exempt. (Similarly, an image or film that would otherwise meet the definition of “obscenity” might acquire political value in the course of law enforcement activity, and so be exempt.) But then the issue is not the attributes of ‘the material itself’, but the attributes of the use of the material; one (perhaps, the only) plausible way of reading Miller is as saying that the specified value determinations are partly contextual, that is, dependent on attributes of use of material -where the cited medical educational uses are exemplary of seriously, scientifically valuable uses. Although the US Supreme Court is far from infallible, it does seem to be on to something important here. So I also wonder what real justification there is for exposing students and others to hardcore, illegal pornography – because I wonder whether there are uses of that material that would confer on it the relevant values. Of course, the examples I offered in my letter of January 21 are intended to raise questions about how to delineate, for moral and/or legal purposes, the range of prima facie exempt, because relevantly valuable, uses.
In light of the preceding, does Morality in Media favor there being no exemption for any conduct that occurs in the course of medical education?
[Comments to: david_austin@ncsu.edu]
This page was last revised on Sunday, November 9, 2003 1:05 AM