Obscenity Rules: Roth v. United States and the Long Struggle over Sexual Expression

Epilogue: After Obscenity?

Epilogue After Obscenity? { 223 } Eight decades after Random House challenged obscenity law by publishing James Joyce’s Ulysses, its Vintage imprint brought another author across the Atlantic to America. E. L. James carried less critical weight than Joyce, coming not out of the literary avant-garde but rather the Internet world, where her Fifty Shades of Grey trilogy (as of 2012) had begun life as smutty fan fiction based on the popular Twilight series. As feminists debated the sexual politics of the series’ bondage-themed relationship between a young woman and an older, wealthier man, conservatives expressed moral indignation about the popularity of the books, with their graphic and somewhat unconventional sexuality. Libraries across the nation split over whether to stock them. In some ways, not much had changed since the days of Samuel Roth. James’s notoriously clunky prose, combined with her clear interest in pushing the boundaries of socially accepted sexuality, carried a Roth-like quality. One legacy of Roth v. United States was evident in the controversies over Fifty Shades of Grey. Commentators like television self-help guru Dr. Drew Pinsky might dismissively call the series “pathological,” but no one within mainstream circles would call the books obscene. That battle appeared to have been fought, and won, by the forces of sexual expression. Yet another legacy of Roth more silently inhered in the debate: in the early twenty-first century, obscene materials remain unprotected by the First Amendment. No less than the head of the National Coalition Against Censorship weighed in against libraries refusing to carry Fifty Shades in May 2012, telling the New York Times that libraries should not police adult reading, “other than the restrictions on obscenity and child pornography.” Apparently the exclusion of obscene materials (made by and for consenting adults, as opposed to child porn) from the First Amendment had also been accepted as something other than censorship. This condition is highly unlikely to change in any imaginable future. For a brief moment after the Supreme Court finally declared sodomy laws for consenting adults in private spaces unconstitutional in Lawrence v. Texas (2003), there appeared to be some doubt about governmental jurisdiction over private morality. Conservative justice Antonin Scalia’s impassioned dissent in Lawrence relied on slipperyslope reasoning to worry that the decision might abolish obscenity laws, along with other moral regulations including laws against prostitution and even, to the surprise and amusement of many Court watchers, masturbation. Yet when a Pennsylvania federal court applied Lawrence to obscenity in overturning the conviction of the operators of California porn firm Extreme Associates in 2005, the opinion was quickly overturned. Whatever advances Lawrence made for LGBT rights, those changes would not affect obscenity. Thus in the years since the early 1980s, obscenity as a legal doctrine has largely remained in the shadows of pornography as a political and cultural issue. On those fronts, it has never been far from the public consciousness. The Reagan administration of the 1980s used pornography tactically to curry favor with conservative evangelical Christians, who had coalesced around the Republican Party after experiencing disappointment with the liberal social policies of Jimmy Carter in the late 1970s. Though Carter was America’s first born-again Christian president and Reagan a divorced, relatively unreligious man, he was elected with major support from what political scientists labeled the “Christian Right.” After disappointing many members with his preference for free-market economic policies over antigay or antiabortion efforts, Reagan took action against smut in 1985 with the creation of the Attorney General’s Commission on Pornography. Generally known as the Meese Commission, after Attorney General Ed Meese, the body was given an explicit mandate to overturn the conclusions of the libertarian 1970 President’s Commission on Obscenity and Pornography report. Instead of social science research, it held emotionally intense hearings, in which various “victims” of pornography, from female models to male consumers, testified about the harmful impact porn had on their lives. The Meese Commission also adopted the language of antiporn feminism, invoking the subju224 { Epilogue } gation of women, although no fair observer would mistake its socially conservative agenda for sharing much common ground with feminism . When it issued its report in 1986, linking adult pornography to child pornography, violence against women, and other social ills, social scientists like the University of California, Santa Barbara’s Edward Donnerstein published strong rebukes, noting that the Meese Commission had deliberately distorted their research, which did...