PORNOGRAPHY

[migrendel]

Pornography is really an issue which continues to baffle legal analysis. The future of the First Amendment may be partially defined by the doctrine of obscenity. I suppose the best way to confront it is to view it from the perspective of the test to define something as obscene, the Brennan doctrine, as articulated in Fanny Hill v. Massachusetts. In this case, John Cleland's 1749 novel, Memoirs of a Woman of Pleasure, a landmark of British literature, was found unfit for readership in the Commonwealth. It was contended that it was nothing more than well-written pornography. The Supreme Court refused to allow the ban to continue. It is very hard to quibble with a decision freeing an acknowledged work of literature from censorship, but the test used to free it was objectionable. The test delineated three criteria used to determine whether something was obscene. It had to (a) be utterly without redeeming social, literary, artistic, political, or scientific value (b) be patently offensive and (c) appeal to a prurient interest. This is different from the even more repressive common law obscenity doctrine in Regina v. Hicklin, but still in conflict with a free society. Utterly without value. Clearly harsh words for anyone to attach to a work of literature. But they have been considered germane to brilliant literature. For example, James Joyce's Ulysses was found obscene by several Massachusetts courts in the 1920s and 1930s. It took a judge of truly cosmopolitan outlook, James Munro Woolsey, to free it from the constraints of church and state, saying "nowhere do I detect the leer of a sensualist". Lady Chatterley's Lover, perhaps one of the seminal exploration of sexuality, class, and society in the canon, was supressed for many years. Unable to publish it in his native England, D.H. Lawrence had to publish the book in Italy. It was illegal to import into this country until 1960, when Judge Frederick Van Pelt Bryan found a claim of obscenity unsupportable. While Constance Chatterley's gamekeeper and lover, Oliver Mellors, does use a prepondrance of old Anglo-Saxon words in several parts of the book, they really are integral to the character's development and are an accurate reflection of the Derbyshire vernacular he speaks. Why I have chosen these two books, out of the many classic works of belles lettres that were once objected to by parochial minds, is that these two struck me as never needing to have been considered obscene, and every day they were kept from readers was a loss. I suppose the point of that lengthy analysis of the first prong of the Brennan Doctrine was to say that the books that are realized to be brilliant are found to be obscene under that same standard. While nothing stops those books from being sold in any bookshop today, there may be a case of a book that is truly remarkable but fails to gain the imprimatur of the state, and languishes until enlightened minds rescue it. What a shame if the Brennan Doctrine causes that. The second prong's problem is similar to that of the first. What can we call obscene without a fair degree of being arbitrary? For example, the FCC, in accordance with the Brennan Doctrine, found the adjective ing as in "This is so ing great." to not be repressible under the obscenity doctrine, because the use, in context, was not prurient, a condition that need be met. Congressman Doug Ose, citing the usual family friendly malarkey, is now pushing a resolution which will radically expand the concept of obscenity in broadcast media. His resolution will ban seven words or phrases, in all their grammatical forms, from the airwaves. (If you don't wish to read what will be illegal, or such words offend you, you may want to skip over the next few lines.) The words and phrases which will be banned per se are sh**t, piss, , c**nt, asshole, mother er, and cock sucker. Now I don't tend to use those words. I'm not looking down on anyone who does, but it's just not my speaking style. I do however see the threat to liberty in banning them. Those words express ideas. Because of that, their place in the First Amendment is clear. I won't address the third prong in the Brennan Doctrine because its meaning is pretty self-explanatory. I would however, like to write about a narrower issue of obscenity, pornography. Pornography really does express an idea. It expresses in general, themes of eroticism and sensuality. An example of pornography might contain other themes (e.g. bondage, dominance, etc.). I could only see it is as a variant of speech that, while not exulted like the freedom of the press, should nonetheless be part of the discourse in a free society. The only way to protect this is to expand on the current protections and say that pornography should be legalized for public consumption, without the governance of obscenity laws, and the possession of pornography within the home should be protected under the right to privacy. I suppose such a change in the law would incite controversy, but it's the only way to live to those words in our founding document "...make no law... abridging the freedom of speech..."