The Pornography Debate, Part Three: What is Obscenity?

With John Stagliano facing obscenity charges for two movies he distributes as well as an online movie trailer I find myself, as well as others, asking more and more often, what constitutes obscene. Everyone has their own opinion. What bothers one person doesn't bother someone else.

It's interesting that when a big name pornographer like John Stagliano (in the past it has been Larry Flint) is pulled into the media spotlight over something the government decided is obscene, groups like Morality in Media come out of the woodwork. Currently they are complaining that while they are happy Stagliano and his company Evil Angel Productions are being targeted, they are upset that others aren't being targeted. This is a group that recently went after Wal-Mart for displaying the Sports Illustrated Swimsuit Edition where children could see it, calling it soft-core pornography. If it were up to conservative groups like Morality in Media everything we viewed would conform to the standards of the Christian Coalition. The problem is, not everyone holds those beliefs.

There are just as many people out there that want proper sex education promoting condom use, safe sex and education on sexually transmitted diseases as there are people wanting abstinence only education. Currently any organization promoting and educating about safe sex and sexually transmitted diseases and not abstinence only loose federal tax dollars. Unfortunately there really is no middle ground on this topic, its one extreme or the other.

The same goes for entertainment. There are just as many that want only family friendly entertainment to be the norm as there are those that want more adult oriented entertainment. Personally, I get tired of watching family friendly shows and movies. Yes, I enjoyed watching the family movies The Game Plan and Meet the Robinsons. However, I also enjoy movies like The Marine and Van Wilder. I don't read Sports Illustrated, but I do read Savage that often features tattoos and piercings in sensitive areas. Given free reign groups like Morality in Media would have all these things outlawed as being "obscene" and "immoral".

The law defines obscene as any item that meets the following criteria (Called the Miller Test):

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests.

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state (or federal) law

3. The work, taken as a whole, lacks serious, artistic, political or scientific value.

During the Jacobellis v. Ohio case in 1964 involving the showing of the French movie Les Amants Justice Potter Stewart commented "I will know it (obscenity) when I see it." That phrase has been uttered over and over again while debating if a work passes or fails the miller test because there is nothing that spells out what is obscene and what isn't.

Everyone can agree that there are just some things that, without a question, are unacceptable such as child pornography and pornography depicting acts of bestiality. Most everything else is up for debate.

It could be argued that a movie where the good looking male star playing Tarzan runs around the entire movie in a loin cloth appeals to the prurient (lustful) desires of someone. By the same standards 2 Girls 2 Cup has been defended as being shock art, therefore giving it artistic value. It has also been critiqued by at least one film student as a modern classic examining feminist rolls through "a series of reversals and expectations."

So, how do we determine what is obscene? Those people behind Morality in Media find the SI Swimsuit edition obscene. Those involved in the Adult Obscenity Squad of the F.B.I. find movies distributed by Evil Angel Pictures obscene. There is a world of difference between SI and the Evil Angel movies. To apply community standards, the community has to be defined, and it's almost impossible. There are almost as many communities as there are people. There are local communities such as the town someone lives in. Inside the local communities are even more communities such as the Jewish community or the skateboard community. Moving on to a larger area, such as the internet, there are communities that extend all over the United States and world, such as the various online gaming communities. There are other communities that have small subgroups in almost every city, such as the autism community or the gay community, come together on the internet to form a larger collective community for support and to form a louder voice for their issues.

It's easy for one city to say, "We find this offensive and don't want it here" therefore banning it. This is done every day in about two dozen cities, counties and states collectively that prohibit the buying and selling of adult merchandise. In the case of Stagliano, the indictment reads "United States of America v. John Stagliano/John Stagliano Inc./Evil Angel Productions". That implies that everyone in the United States finds it offensive when the fact is that only people in Washington DC (albeit government agents) found the work offensive. Since when were F.B.I. agents chosen as my representatives to decide what I, and everyone else in America, finds obscene? The community in question in this case should be Washington DC, or the Adult Obscenity Task Force, not the entire United States. The people that normally purchase movies from Evil Angel and Stagliano know what they are getting and want to view that material.

Cases like these lay the foundation for government defined morality and related censorship laws that will be imposed on everyone defining what they can watch and what they can read. The Supreme Court has ruled that the First Amendment does not protect anything deemed to be obscene, but yet the definition for obscenity is so broad that it applies to everything but defines nothing.