Limiting Free Speech (12): Obscenity

The words “obscenity” (from the Latin obscenus meaning “foul, repulsive, detestable”), “salaciousness” or “salacity”, are legal terms describing acts or cases of speech that are prohibited because they offend a society’s prevalent sexual morality. As such, these prohibitions are limitations of the freedom of speech and often include censorship of obscene material, punishment for obscene acts or distribution of obscene material etc. The question is whether such prohibitions are legitimate in light of the importance of the right to free speech.

What is or is not obscene differs from society to society, from individual to individual, and from time to time. What used to be considered obscene may today be banal. This makes it difficult to establish what is and is not obscene, and this difficulty has consequences for those wishing to make rules prohibiting obscenity.

Justice Potter Stewart of the Supreme Court of the United States famously stated:

I shall not today attempt further to define the kinds of material I understand to be embraced but I know it when I see it.

The Supreme Court does use a somewhat more precise rule, called the “Miller test“, to establish if something is obscene and hence doesn’t merit protection under the First Amendment:

  • whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,
  • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Most forms of obscenity aren’t speech: walking naked in a shopping mall, for instance, or performing sex acts in public toilets, aren’t acts intended to transfer information or opinions. Hence they cannot be protected by the right to free speech (whether or not these acts need to be protected at all, and how, is not the topic of this post).

Obscenity can, with some credibility, claim protection under freedom of speech when it is in the form of printed material (including publication on the internet), because then it is a form of speech. In many cases, obscenity in such a form can be equated to pornography (although not all pornography is obscene and not all obscenity is pornographic). In many jurisdictions, this kind of obscenity is also traditionally considered as a justified limit on freedom of speech. But is it really justified?

In a previous post in this series, I discussed pornography and the possibility to limit the freedom of speech of pornographers. I concluded that this possibility exists in certain cases, namely those cases of pornography that cause harm. For instance, child pornography, pornography in which violence or force is used against the participants in the pornographic material, pornography that is associated with human trafficking etc.

The rule should indeed be: does it harm anyone? Whether it appeals to the “prurient interest”, or whether it lacks “some artistic interest”, is essentially irrelevant. Does it cause harm in the sense of rights violations? Of course, this kind of harm isn’t always easy to establish. It is in the case of child pornography. But many feminists make a convincing case that pornography, even pornography depicting consenting adults and consumed by consenting adults, dehumanizes women, solidifies mentalities in which women are second class citizens, and glorifies violence against women.

However, depicting violence is not necessarily the same thing as incitement of violence. The latter causes harm, the former not necessarily (otherwise we would have to ban all detective stories).

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4 thoughts on “Limiting Free Speech (12): Obscenity

  1. The only “victims” of “obscene” material are the over-sensitive prudes, who get offended way too easily. That’s all. And you know what, it isn’t like people even make THEM so much as look at obscene material. They get mad just because it EXISTS!

    Honestly, I don’t care what kind of stupid shit you are looking at, reading, or watching. It could be a story about a vampire eating a piece of shit and barfing it into someone’s neck. If you don’t make me watch it, and it doesn’t create or take part in crimes targeting ACTUAL victims, it’s your own freaking business.

    Plus, sex is consensual between two adults. If we are going to take obscenity to be equivalent to pornography, what’s next? A ban on actual consensual sex between two adults? Laws controlling where and when people can have sex, like forcing you to only do it in a bed? Laws about which positions are suitable for sex?

    Let’s say that happens and let’s say some stupid people think it’s a good thing. Then what? No kissing on TV? I can see it now “kissing objectifies women!” No, let’s stop this nonsense.

    Ironically, women tend to “objectify” women more than men. Dressing in skimpy clothes, making sexual gestures, etc. I’m sure that has nothing to do with “objectifying” themselves… Then they want to blame men that their physiology causes them to have some sexual attraction. Nice… Let’s just castrate every man while we are at it. After all, it’s men’s own damn FAULT that they were born that way, right?

    The only reason women worry about pornography is because they’re worried it takes some power from them. The power to control men with sex. The very power which they CLAIM is being used unfairly against them.

    Remarkably, anti-pornography laws would actually take freedom from women as far as being able to participate freely in sex when and how they want to.

    Anyway that’s not what the post was about, the point is that ANY “obscene” material is just another form of media that should be allowed in the interest of free speech. It is NOT the law’s job to decide the quality of the media. It is NOT their job to rate the media. If it doesn’t incite violence, if it doesn’t incite victimized crime, what exactly is the problem? The problem is small-minded, close-minded people.

  2. Not all porn is consentual. The internet is loaded with rape porn and child pornography. Child pornography is not consentual on the child’s side as they are not old enough to consent. What about all the human trafficing. Many of these women in these movies or pictures are forced whether on camera or off by beatings, starvation, or death threats.

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