Politics and the Pornography Wars
Pornography is one of the great paradoxes of American culture. 1 On the one hand, Americans produce, buy, and consume as much, or more, sexually oriented material as any other nation. On the other hand, pornography is despised by a large portion of the population. The result is that in a society where eight times as many "adult" films are rented or sold per year as there are votes cast in a presidential election, those purchases and rentals are illegal and could result in long term incarceration in many of the communities in the nation.
The battle over pornography and obscenity is grounded in conflicting religious and philosophical frameworks which have led to great ambiguity regarding sexual practices and presentations. Today, when some schools pass out condoms to students, it is easy to forget that birth control devices were illegal in many states until 1965 and that birth control information has been the most censored material in American history. While there was a strong moral consensus, the existing anti-obscenity laws were largely superfluous--outrage at deviations from the community norms were usually so strong that such behavior was relatively uncommon. However, as the sense of community declined in America in the sixties, traditional concepts of morality were challenged. Inevitably, [End Page 149] those who still held political power tried to use it in an attempt to maintain their social values.
Obscenity laws and prosecutions are inherently political. Since pornography is a "victimless crime"--in the usual sense of the term, if not in the feminist rendition--most obscenity prosecutions, federal or state, are generated by pressure groups or elected officials attempting to appease such groups. Pornography normally receives very little official notice, other than just before elections. However, because of our anxieties about sexuality, pornography is open to attack in its own right and can be used as a symbol--a lightning rod--for those threatened by changing attitudes regarding proper sexual behavior, abortion, homosexuality, and other lifestyle issues. 2 This began to occur in the late sixties.
The usual legal analysis divides obscenity into three phases: (1) the period prior to 1957; (2) the Roth Period, 1957-73; and the (3) the Miller period, from 1973 to the present. Although such a conceptualization is valid, it is too narrow to convey the nature of the conflict over pornography in the United States during the past forty years. The Supreme Court provided the overall legal framework, or at least set the outer boundaries, but the battle over pornography has been inextricably intertwined with the changes in American society for the past half century. Supreme Court decisions have been the highly visible portion of the iceberg: the real struggle has been at policymaking and enforcement level in all levels of government. Therefore, this discussion will go beyond the standard legal framework and include the political factors that have impacted on the laws as written and as interpreted by the courts.
Phase I: The Roth Years
Until 1957, federal and state courts suppressed allegedly obscene materials by applying the extremely restrictive English common law test set forth in Regina v. Hicklin, L.R. 2 Q.B. 360 (1868). The so-called Hicklin test was "whether the tendency of the matter charged as obscenity is to deprive and corrupt those [End Page 150] whose minds are open to such immoral influences and into whose hands a publication of this sort might fall." Under this test, major books were banned on the basis of selected passages and the influence they might have on the weakest members of society. As Justice Frankfurter noted, the intent of this standard "is to reduce the adult population of [the country] to reading only what is fit for children." 3
Justice Brennan, speaking for the Supreme Court in Roth v. United States, 354 U.S. 476 (1957), and its companion case, Alberts v. California, 354 U.S. 476 (1957), repudiated the Hicklin test. The new constitutional test for obscenity was based on the assumption that obscenity was "utterly without redeeming...