Pornography, Legal and Political Perspectives
Written descriptions, still images, and film representations of sexual activity designed to incite erotic emotions and behaviors in persons are generally considered pornography. Many additional social and subjective elements factor into the real-world manifestations of pornography, however, rendering it considerably more complex than this basic definition suggests. Because a universal conceptualization of erotic and/or sexually stimulating does not exist, what exactly constitutes pornography is complicated by era, region, religion, sexual orientation, gender, political perspective, and so on. All texts and visual images are polysemic, with meanings contingent upon viewers' particular subjectivities. Consequently, any representation that can be considered even obliquely sexual has the potential to be considered simultaneously banal, artistic, erotic, pornographic, and obscene to different audiences. The existence of pornography and pornographic material is thus due largely to the individual perspectives of persons experiencing a particular depiction.
Pornography in the United States
Technology, jurisprudential regulation, and amorphous cultural climates are only some of the factors contributing to the social and historical evolution of pornography around the globe. Cultural particularities unique to the United States have had a significant impact on the country's developing relationship with pornography since the 1930s. In the United States, pornographic materials in various forms have consistently been in high demand from consumers. At the same time, pornography and its hypothesized effects on human beings have been hotly contested in various spaces at different times.
Regardless of this love/hate relationship, the vast majority of all pornographic materials are currently made in the United States. This has been the case for some decades. Consequently, the following section speaks to the history, development, and current state of pornography in the United States specifically.
Pornography, Obscenity, and Free Speech
English common law rulings from the 1800s provided the basis for the conceptualization of obscenity in the United States. Graphic and literary depictions in any form that seem to infuse individuals' minds with immorality and/or depravity were considered “obscene.” Myriad works of art and literature were Page 651 | Top of Articledeemed obscene and banned under these rulings in England and in the United States.
Obscenity is not protected as free speech under the U.S. Constitution. As the pornography industry began to emerge as a burgeoning, albeit clandestine, industry in the 1930s, producers of erotic texts and images were subject to a number of criminal charges. As standards for determining what exactly constituted obscenity, depravity, or immorality had not been articulated in the United States, common charges brought against pornographers included arbitrarily determined obscenity. Two cases—Roth v. United States (1957) and Miller v. California (1973)—eventually established the basic guidelines for obscenity in the United States, which have had a significant impact on pornography and the industry that produces it.
The case of Samuel Roth v. the United States (354 U.S. 476) took the first significant step toward defining obscenity in the United States. According to the Roth decision, a material that predominantly contained themes appealing to an average person's “prurient” (sexually unwholesome) interests would be considered obscene. Contemporary “community standards” (local norms) were used to determine whether or not a material actually appealed to said prurient interests. Although Roth was reliant on the very vague and subjective concepts “unwholesome” and “community,” this decision represents the first attempt in the United States to capture the concept of obscenity and establish a legal standard for its definition.
The vague quality of Roth became apparent as a litany of obscenity and obscenity-related cases emerged. Who and what constituted the community, and thus who or what had the capacity to determine prurience in average persons, was a common sticking point in these cases. The case of Marvin Miller v. the State of California (413 U.S. 15) further clarified obscenity, repudiating the Roth decision and establishing the three-part “Miller test” for obscenity. On the basis of Miller and the Miller test, a material can be considered obscene if (a) an average person applying contemporary community standards finds the work appealing to prurient interest, (b) the material depicts or describes sexual conduct in a patently offensive way as defined by applicable state law(s), and (c) the work lacks serious literary, artistic, political, or scientific value.
As was the case with Roth, the Miller standards for obscenity are muddled by vague and subjective concepts, including the concept of “community.” The notion of community has become particularly relevant in the contemporary age of virtual pornography and online communities. Regardless of these problematic elements, the Miller test continues to stand as the benchmark of obscenity today.
Several other court cases and jurisprudential acts have had a significant impact on obscenity and pornography in the United States. For example, the New York v. Ferber case from 1987 (458 U.S. 747) established that pornographic depictions of underage persons could be banned without first being established as obscene. Congress subsequently defined child pornography with reference to the Ferber case until the passage of the multipart Child Pornography Prevention Act (CPPA) in 1996. Under the CPPA, any visual depiction including any photograph, film, video, picture, or computer-generated image that is, or appears to be, of a minor engaging in sexually explicit conduct and any material presented in such a way that gives the impression that a minor engaged in sexually explicit conduct were prohibited. These two components of the CPPA were determined to be both overbroad and unconstitutional by the Ashcroft v. Free Speech Coalition decision of 2002 (535 U.S. 234).
Today, pornographic material depicting actual real children is prohibited regardless of obscenity. Pornographic material that, for example, alludes to the involvement of underage persons, presents various media representations of underage persons (i.e., cartoons or drawings), or depicts youthful-looking adults engaging in sexual activity is not prohibited. Such materials are subject only to the Miller test.
Debates Among Feminist Scholars and Activists
Debates over pornography have divided U.S feminist scholars and activists for decades. Historically, two dominant perspectives on pornography exist: the anti-sex/pro-censorship and the pro-sex/anti-censorship. According to the first perspective, anti-sex/pro-censorship, society is organized hierarchically such that men dominate and women submit. Pornography functions to illustrate roles of domination and submission in the context of sex and sex behaviors. Consequently, persons allied with this perspective assert that the tendency of pornography to represent gender inequality as sexually desirable is inherently harmful to women. Antipornography feminist Page 652 | Top of Articleactivist Andrea Dworkin claimed that because pornography shows women as “vile whores” while simultaneously being considered representative of realistic and desirable sex behaviors, all pornographic depictions function to demean and degrade women. Other feminist scholars and activists allied with this perspective include Gail Dines, Robert Jensen, and Catherine MacKinnon.
The second persepective, pro-sex/anti-censorship, also claims that society is organized hierarchically such that men dominate and women submit. Persons allied with this perspective, however, assert that pornography functions to attenuate the sexual repression of women and other sexual minorities by reconceptualizing the essential function of sexual activity to be physical, genital pleasure rather than emotional intimacy. Consequently, pornography in all forms is regarded as a progressive, or at least destabilizing, social force. Pro-sex academic Camille Paglia argues that pornography illustrates individuals' most primal desires for sexual expression, regardless of how un/popular, ab/normal, or politically in/correct they may be. According to Paglia, women pornographic actors are powerful entities actualizing a feminist reconceptualization of the essential function of sex. Other feminist scholars and activists allied with this perspective include Laura Kipnis, Nadine Strossen, and Linda Williams.
Some scholars have begun to offer critiques of these perspectives of pornography. One common critique asserts that the tendency of feminist scholars and activists to focus on particular aspects of pornography has resulted in the production of dichotomous either/or scholarship. Feminist scholarship that describes pornography as either liberating (pro-sex) or oppressive (anti-sex) for women is now commonly considered to be inaccurate, limited, and reductive. Rather than taking an either/or approach to pornography, contemporary critiques suggest that pornographic material should be considered to be both oppressive and liberating. Consideration of a multiplicity of pornographic content and genres and analysis of their subsequent meanings from a variety of perspectives is considered necessary to develop a “both/and” perspective. Feminist analyses of pornography are also critiqued for their tendency to presuppose universal values and norms regarding human beings, their experiences, sex, and sex behaviors. Contemporary critiques of “either/or” scholarship also suggest refraining from presupposing universal values, norms, and meanings in all contexts.
Antipornography Activism During the 1980s: Feminists and Conservatives Allied
During the 1970s, the popularity of pornographic films and the cultural phenomena of “porno chic” seemed to indicate a general increase in society's acceptance of pornography, and the advent of Sony's videocassette recorder technology markedly increased its accessibility. The apparent popularity of pornography that emerged during the 1970s was unsettling to some feminist activists and scholars and to some conservative politicians. Consequently, antipornography activism was common in both feminist and conservative circles during the 1980s.
For example, attorney Catharine MacKinnon and activist Andrea Dworkin saw the increased popularity of pornography as a threat to women's sexual equality. In 1983, MacKinnon and Dworkin coauthored a city ordinance stating that pornographic materials violated the civil rights of all women in Minneapolis, Minnesota, and consequently should not be permitted within the city limits. This ordinance, later deemed unconstitutional, was presumably drafted on behalf of the sexual and human rights of all women. In another example, in 1984, former President Ronald Reagan announced his intention to study the effects of pornography on society. He assigned Attorney General Edwin Meese the task of conducting the investigation, and Meese appointed 11 persons to an investigatory task force in May 1985. Members of the “Meese Commission” were then given 1 year and approximately a half-million dollars to investigate the effects of pornography on society. It has been speculated that the actual purpose of the Meese Commission was to overturn the findings of the 1970s Presidential Commission on Pornography, which stated that there was no identifiable link existing between sexually explicit material and criminal and/or violent behavior.
Although instances such as these two examples were presented as noble endeavors designed to ensure women's rights, the dangers they posed to freedoms of speech and expression were quickly identified. The Minneapolis ordinance's proposal to quell pornography's wholly negative effects on Page 653 | Top of Articleindividuals through limited access ignored the repressive quality of censorship and did not consider individuals' rights to sexual expression. The Meese Commission's attempt to protect women and reformulate the presumably liberalized boundaries of sexual acceptability masked intentions to reassert arcane standards of obscenity and morality on the culture.
The Current State of Pornography: The U.S. Adult Entertainment Industry
Pornography and the ways it is produced, marketed, and consumed in the United States have changed dramatically since its unofficial legitimization with the Roth decision. Widely viewed films like Deep Throat (1972) and The Devil in Miss Jones (1973) fed the cultural phenomena of “porno chic” in the early 1970s. The changing cultural climate, coupled with the development of the Miller test for obscenity in 1973 and the introduction of Sony's videocassette recorder technology in 1975, ushered in the “golden age” (1975–1983) of pornographic filmmaking. According to adult film historian and director Jim Holliday, some of the best films of the entire pornographic genre were made during these years.
As was previously discussed, the 1980s brought forth a rash of antipornography activism from some conservative and feminist activists, and the industry was subject to a rash of legal prosecutions in various forms. One of the most commonly cited cases used to castigate the pornographic film industry occurred in the 1980s. In the mid-1980s, a 15-year-old girl named Nora Kuzma used a borrowed birth certificate to obtain a California driver's license. With legal documentation stating she was of age, Kuzma worked under the pseudonym “Traci Lords,” becoming one of the most popular adult film stars of the decade. Although Lords misrepresented her true age and no persons in the pornographic film industry were ever convicted of creating or pandering child pornography in this instance, the Kuzma/Lords case is still commonly cited in discussions of child pornography.
The Kuzma/Lords case can be clearly linked to the eventual passage of 2257 regulations. According to U.S. Code Title 18, 2257, anyone producing sexually explicit visual media depictions after November 1, 1990, must “create and maintain individually identifiable records pertaining to every performer portrayed.” The intended purpose of this law was to document the legal ages of persons performing in sexually explicit productions and prevent underage persons from engaging in recorded sex performances. Although many sectors of society focused on pornography for some time during the 1980s and the upkeep of 2257 records is still required today, changing political and cultural climates during the early 1990s eventually shifted attention away from the adult film industry.
Twenty years after the beginning of the “golden age,” adult entertainer Danni Ashe identified the Internet as a viable marketing venue for pornographic material. The creation of “Danni's Hard Drive,” a picture-enhanced directory to adult-themed Web sites and an even more private way to access and consume adult material, revolutionized the industry. Aside from necessary regulations monitoring children's access to adult content, the Internet continues to allow the pornography industry to operate largely unchecked by existing obscenity law. In the virtual world, the demand for particular products and services is clear, and amorphous “community standards” have become even more difficult to identify.
Today, the contemporary pornography, or adult entertainment, industry is a massive and diverse entity that includes all cable, satellite, and pay-per-view services providing adult content; all Web-based sites and services that provide adult content; phone sex services; sex toy sales; and sexually explicit print publications. The industry generated an estimated $10 to $14 billion worth of revenue in 1998 and $12.9 billion worth of revenue in 2006.
Studio production of professional pornographic films is the most significant and prolific single component of the adult entertainment industry. The sale and rental of adult DVDs and videos accounted for 28 percent of all adult entertainment industry revenue generated in 2006. With film production commanding such a large percentage of revenue, it is not surprising that the adult film industry produces a substantial amount of films. To put this in context, Hollywood filmmakers produce approximately 400 films per year; adult industry filmmakers produce over 11,000. Exactly 12,971 adult films were produced in 2006. These numbers and amounts would be substantially higher if amateur adult films were included.
As was previously mentioned, there is a tendency for scholars and activists to focus on particular niche sub-genres of adult films when making cases for or against pornography. Often niche films cited as exemplars do not reflect pornographic material in general. There are, Page 654 | Top of Articlehowever, particular pornographic subgenres that are more fully representative of the vast majority of adult film material produced. According to an Adult Video News survey conducted in 2004, 90 percent of the adult films produced by 500 production companies surveyed are “features” or “all-sex” films. All other subgenres (niche films) collectively make up the remaining 10 percent. Features include sex depictions couched within an overarching plot and/or developing narrative. All-sex films depict sex scenes only, with no overarching plot or overtly developing narrative. The all-sex film category is made up of “gonzo” and vignette films. Gonzo films incorporate the use of a “talking camera,” as the person filming a particular sequence or scene is also playing an active, integral role in the film. For example, a person may be holding the camera while giving directions or making comments to people performing in a sex scene. Vignette films string sex scenes together with an overarching concept. For example, the sex scenes in a vignette film may be connected by a costume/visual theme or by the continued presence of particular talent.
Pornography Outside the United States
The pan-European pornographic production industry is the U.S. industry's closest peer, although the content and quantity of materials are not directly comparable. Some Asian countries also produce a sizable amount of pornographic material. Asian pornography contains unique images and tropes that distinguish it even further from U.S.-generated materials. With the exception of films and content made by visiting U.S. and European producers, not much pornography is produced in Latin America. Pirated copies of myriad pornographic materials, however, are abundant and accessible. In some global regions, such as most of the Islamic world, production and possession of pornography is strictly forbidden.
Regardless of region, pornography has had a very contested and dynamic history. Although not reflective of every country and culture's dealings, consideration of pornography in the United States reveals much about the predominant component of what is normatively considered the contemporary pornographic adult entertainment industry.
Chauntelle Anne Tibbals
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Gale Document Number: GALE|CX3073900341