Legality
- Further information: United States pornography censorship, U.S. Government Commissions on pornography
The lawful definition of pornography in the U.S. evolved through decades, from the 1960s. In this period, recognizing ambiguities, it was chosen to use the term "sexually explicit content" as one of the pornography's euphemisms, but later it was determined that a distinction between pornographic and sexually explicit content is completely artificial. In Miller v. California the Supreme Court used the definition of pornography made by Webster's Third New International Dictionary of 1969 ("a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement"). Black's Law Dictionary followed the Miller test and defined pornography as material that taken as a whole the average person, applying contemporary community standards, would find appealing to the prurient interest. Heinle's Newbury House Dictionary of American English (2003) defined pornography as "obscene writings, pictures, or films intended to arouse sexual desire".
Some feminists have defined pornography in the Antipornography Civil Rights Ordinance as the "graphic sexually explicit subordination of women, whether in pictures or in words". This definition has twice been rejected: by the mayor of the Minneapolis City Council (1983) and by the Federal Appeals Court in American Booksellers v. Hudnut in Indianapolis (1985). Courts in California and New York have clearly rejected the argument that the making of pornography is prostitution. (See California v. Freeman (1988) and People v. Paulino (2005).)
Pornography is a legal term at the federal level, except the generic terms "hardcore pornography" and "child pornography", do not exist after the 1973 Miller v. California case. The United States Supreme Court in Miller v. California discussed pornography (which it referred to as "sexually explicit material") in terms of obscenity, which it held did not enjoy First Constitutional Amendment protection, and recognized that individual communities had different values and opinions on obscenity. The Court's definition of obscenity has come to be called the Miller test. Since then several States have passed laws in terms of that test. Relying on the 1930 Smoot-Hawley Tariff Act and under the terms "obscene" and "immoral", the U.S. Customs and Border Protection prohibits the importation of any pornographic material (19 U.S.C. ยง 1305a "Immoral articles; importation prohibited").
The term "pornography" first appears in a 1857 British medical dictionary, which defined it as "a description of prostitutes or of prostitution, as a matter of public hygiene", therefore pornography by itself was not a widely used term in nineteenth-century America and the term did not appear in any version of American Dictionary of the English Language in its early editions. The dictionary introduced the entry in 1864, defining it primarily as a "treatment of, or a treatise on, the subject of prostitutes or prostitution". Early charges used the term "obscenity" as well as after Miller v. California, though the term "pornography" remained as a reference entry:
| Source | Definition |
|---|---|
| Merriam-Webster's Dictionary of Law | "Material that depicts erotic behavior and is intended to cause sexual excitement" |
| The People's Law Dictionary | "Pictures and/or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrational kind, such as acts involving children, animals, orgies, and all types of sexual intercourse" |
| West's Encyclopedia of American Law | "The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest"; "the depiction of sexual behavior that is intended to arouse sexual excitement in its audience" |
The upcoming censorship of pornographic materials in the United States became based on the First and partially Ninth and Fourteenth Amendments to Constitution. It also includes the so-called harm principle, as well as in Canada and the United Kingdom. The absolutist interpretation of the First Amendment as applied to pornography has never been sustained by the Supreme Court. In the Investigation of Literature Allegedly Containing Objectionable Material, issued by the U.S. Congress Select Committee on Current Pornographic Materials in 1953, it was noted that "perhaps the greatest impediments to the prompt and effective enforcement of existing laws intended to control pornographic materials are the difficulties of establishing a precise interpretation of the word". During the Warren Court (1953-1969), the first notable court to face the cases of such kind, justices Potter Stewart, Byron White, and Arthur Goldberg shared the opinion that only hardcore pornography was not protected by the First and Fourteenth Amendments. This position was contested notably by U.S. Solicitor General James Lee Rankin (in office 1956-1961), but in Jacobellis v. Ohio Stewart concluded that criminal obscenity laws are constitutionally limited under the First and Fourteenth Amendments to hardcore pornography. Concurring in the 1957 Roth v. United States Justice John Marshall Harlan II wrote that "even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials."
The 1967 Public Law 90-100 found the traffic in pornography to be "a matter of national concern", as well as in obscenity. In this period the Court considered pornography to have two major dimensions. The first can be defined as dealing with sexual representations that are offensive to public morality or taste, which concerned the Court notably in the 1966 Ginzburg v. United States case. The second centers on the effect of pornography on specific individuals or classes, which is the focus of most public discussions and prior Court pornography decisions. This dimension was mentioned only twice in the array of decisions made in 1966. A frustration was expressed notably by Justice Hugo Black in the 1966 Mishkin v. New York: "I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people to see or read." In the 1974 Hamling v. United States decision the Supreme Court said that just because pornographic materials are for sale and purchased around the country, "Mere availability of similar materials by itself means nothing more than that other persons are engaged in similar activities." The 1976 American Heritage Dictionary of the English Language defined that pornography consists of "written, graphic, or other forms of communication intended to excite lascivious feelings". Since determining what is pornography and what is "soft core" and "hard core" are subjective questions to judges, juries, and law enforcement officials, it is difficult to define, since the law cases cannot print examples for the courts to follow. The Rehnquist Court further enhanced the power of community controls on pornography. Current Chief Justice John Roberts told at the confirmation hearing on his nomination: "Well, Senator, it's my understanding under the Supreme Court's doctrine that pornographic expression is not protected to the same extent at least as political and core speech, and the difficulty that the Court has addressed in these different areas of course is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not".
The famous Indianapolis definition of pornography by Dworkin and MacKinnon paralleled their Minneapolis ordinance. The first was rejected by the United States Court of Appeals for the Seventh Circuit for several reasons. The ordinance did not use any of the accepted terms that the Supreme Court had developed over time for determining when material is obscene, including "prurient interest", "offensiveness", or "local community standards". Another concern was the way the women were depicted in the work. If women were referred to in the approved fashion stressing equality, the activity involved would be regardless of how sexually explicit it was. The Court also indicated that if women were referred to in a disapproving way depicting them as subversive or as enjoying humiliation, the activity would be unlawful regardless of the "literary, artistic or political qualities of the work taken as a whole". Judge Frank Easterbrook said: "We accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets.... Yet this simply demonstrates the power of pornography as speech." Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation by Frank Michelman, issued by Tennessee Law Review (vol. 56, no. 291, 1989) partially consented that "pornography is political expression in that it promulgates a certain view of women's natures and thus of women's appropriate relations and treatment in society", but also concluded that the Indianopolis ordinance was precisely designed to suppress that particular view by censoring pornography. Minneapolis ordinance was struck down on the grounds that it was ambiguous and vague, however, despite of its failure the proposal influenced other communities across America.
In May 2005 U.S. Attorney General Alberto Gonzales established an Obscenity Prosecution Task Force. The task force, according to a Department of Justice news release on May 5, was "dedicated to the investigation and prosecution of the distributors of hard-core pornography that meets the test for obscenity, as defined by the United States Supreme Court." Under President Bush's and Gonzales' rationales the FBI Adult Obscenity Squad was recruited in August 2005 to gather evidence against "manufacturers and purveyors" of adult pornography.
Read more about this topic: Pornography In The United States