Pornography

I

Introduction

Pornography, films, magazines, writings, photographs, or other materials that are sexually explicit and intended to arouse sexual excitement in their audience. Deriving from the Greek words pornē (“prostitute”) and graphein (“to write”), the word pornography originally referred to any work of art or literature dealing with sex and sexual themes. Pornography is one of the most controversial forms of expression. Societies have long debated whether pornographic works should be subject to censorship, and the question of how to distinguish between artistic works and pornography has perplexed governments ever since they began to take freedom of expression seriously. In addition, the social consequences of pornography have become the subject of intense debate.

Pornography is not the same thing as obscenity, although people often use the terms interchangeably. Obscenity is a legal concept that applies to those forms of pornography that society considers the most harmful to sexual morality, and that it punishes under criminal law. In the United States, for example, the Supreme Court limits the definition of obscenity to “hard core” pornographic depictions, meaning extremely explicit portrayals of sex. Thus, pornography is illegal only if judged to be obscene.

Many feminist thinkers, such as Americans Gloria Steinem, Catharine MacKinnon, and Andrea Dworkin, have proposed another definition of pornography, distinguishing it from erotica. Such thinkers define pornography as the “sexually explicit subordination of women” and view it as a form of discrimination against women, not simply a violation of traditional moral norms. Erotica, on the other hand, is sexually explicit material that portrays men and women in postures of equality and mutual respect.

Although little is known about the origins of pornography, it is as old as written records. The ancient Greeks used pornographic themes in songs in Dionysian festivals, and ancient Romans painted pornographic pictures on walls in the ancient city of Pompeii. Pornography was also prevalent in some ancient Eastern cultures, such as those of India, Japan, and China. In medieval Europe, authors used bawdy ballads and verses to ridicule the church, and Il decamerone (1353; The Decameron) by Italian writer Giovanni Boccaccio was licentious in nature. It was not until the 1800s, however, that pornography began to become a social problem, primarily because the spread of technology—such as printing, photography, and motor vehicles—made it more readily available and because of the growth of democracy and individual freedom.

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II

Pornography and Culture

The content of pornography is a function of many things, including culture, history, biology, and technology. Over time, pornography has grown more and more sexually explicit as producers have taken advantage of the freedoms that accompanied the spread of democracy. Although sexual desire is instinctual and biological, representations of sex are shaped by cultural factors, such as the nature of the relationship between men and women, ideals of sexuality, symbols of power and attractiveness, the nature of moral values, the extent of individual liberty, and the availability of various forms of technology.

Some pornography is an expression of the sexual fantasies of the mainstream social order, whereas other types of pornography are more “transgressive,” representing unconventional or dissident forms of sexuality. In both cases, the content of pornography is a reflection (positive or negative) of the culture from which it arises. For example, some scholars have pointed out that pornographic portrayals in the United States have emphasized sexual competition and aggression more prominently than do portrayals in less competitive societies. And some countries, such as Japan, have been more tolerant of child pornography and violence, although Japanese laws have recently attempted to restrict such material.

Legal definitions of pornography are also a function of culture and politics. Although pornography has grown more explicit and has become more available since the early 20th century, this trend has been punctuated by several episodes of governmental crackdowns on pornography that were due to political movements and reactions to unsettling social change. For example, the rise of antismut societies in the United States, the United Kingdom, and Canada between the 1890s and 1920s was partly a response to concerns about the breakdown of moral and social order wrought by economic expansion. The Supreme Court of Canada’s decision in 1992 to ban degrading and dehumanizing pornography was related to the mobilization of a feminist and conservative political alliance. A similar movement in the United States, where the civil liberty tradition is stronger, failed to influence the courts.

III

Legal Status of Pornography

Since the beginning of the 20th century, court decisions have generally narrowed the range of pornographic material that can be considered obscene or illegal. Each country has its own approach to the law, however, and there is little international coordination despite the fact that pornographic material can be sent instantly anywhere in the world over the Internet.

Child pornography is illegal in nearly all countries, although enforcement varies across the globe. Most countries agree on the basic definition of child pornography: sexually explicit material made with actual minors, usually under 16 to 18 years of age, as subjects. Some countries, including Canada and Germany, prohibit “virtual” child pornography in addition to the “actual” variety. Virtual pornography comes in two forms: depictions in which adult models are made up to look like children, and artistic or computer simulations of children involved in sexual activity. Laws against virtual child pornography are controversial because they can cover a broad range of material, thus raising concerns about their impact on freedom of expression. In addition, the harm caused by virtual child pornography is less direct and obvious than that caused by actual child pornography.

A

United States

A

1

Legislation

The Congress of the United States passed the first federal obscenity law as part of the Tariff Act of 1842, barring the importation of all “indecent and obscene prints, paintings, lithographs, engravings, and transparencies.” However, very little obscenity prosecution took place in the United States until after the Civil War (1861-1865). In the late 19th century, prosecutors grew more active as the production of pornographic material increased and new antivice and antismut groups pressured them to bring cases. The most prominent such group was the New York Society for the Suppression of Vice, which was the offspring of America’s leading antivice crusader, Anthony Comstock.

The so-called Comstock Law, an 1873 amendment to the 1865 Postal Act, prohibited sending any obscene material through the domestic mails, including materials dealing with abortion or birth control. This act made Comstock a special agent to the post office with personal authority to enforce the law. By the time of his death in 1915, Comstock had spearheaded hundreds of successful prosecutions in the name of moral decency, many of which involved works of considerable literary merit. “Comstockery,” as this came to be known, declined after 1920 with the advent of the modern civil liberties movement, but as late as the 1930s classic works such as Lady Chatterley’s Lover (1928), by English novelist D. H. Lawrence, and An American Tragedy (1925), by American novelist Theodore Dreiser, were found obscene. It was not until the 1950s, when social mores and court decisions grew more clearly liberal in this domain, that such works enjoyed unambiguous protection against censorship.

Congress passed 20 obscenity laws between 1842 and 1956, most of which were variations of or amendments to the original Comstock Law. Later, Congress passed a series of antipornography and anti-indecency laws dealing with new forms of technology and with the protection of children. The Protection of Children Against Sexual Exploitation Act of 1977 prohibits anyone from employing or inducing a minor to participate in sexual conduct or in the making of pornography. In 1988 Congress passed legislation against “dial-a-porn” companies that made it illegal to make indecent or obscene phone calls over state lines for commercial purposes. (In 1989 the Supreme Court struck down the part of the law that dealt with indecency.) The Child Pornography Prevention Act of 1996 made it illegal to distribute or receive child pornography, including virtual child pornography, by any means. (However, in 2002 the Supreme Court struck down provisions of the law that banned virtual child pornography.) Penalties for violation of these various laws range from a few years to 30 years in prison, depending on the circumstances.

The widespread availability of pornography on the Internet has led to a number of legislative attempts to prevent children’s access to it. However, opponents have challenged these laws on the grounds that they are overly broad and infringe on freedom of speech, which is protected by the First Amendment of the U.S. Constitution. In 1996 Congress passed the Communications Decency Act (CDA), making it a crime to send any obscene or indecent messages over the Internet knowing that the recipient is under 18 years of age. After the Supreme Court unanimously ruled this law unconstitutional in 1997, Congress passed the Child Online Protection Act (known as “son of CDA”), which required commercial Web sites to ensure that children could not access material deemed “harmful to minors.” The act also prohibited, among other things, material that “depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact.” In 1999 a federal appeals court blocked that law as well, citing free-speech concerns.

The Children’s Internet Protection Act, passed in 2000, required all public schools and libraries that receive federal technology funds to install filtering software designed to block access to pornographic sites. A coalition of civil liberties groups, led by the American Civil Liberties Union and the American Library Association, argued that filtering software was imprecise and blocked access to Web sites that have nothing to do with pornography. In 2002 a federal judicial panel struck down the Children’s Internet Protection Act, finding that filtering software blocked Web sites whose content was constitutionally protected. However, in 2003 the Supreme Court reversed the lower court and ruled that the law was constitutional and was justified by the government’s legitimate interest in protecting children from harmful materials. The Court noted that the law allowed librarians to enable access to blocked Web sites at the request of patrons, thereby protecting patrons’ First Amendment rights.

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