Some might think sexual censorship an antiquated topic, but it is alive and well, manifesting itself in the convoluted and often hypocritical perceptions of bureaucrats from Washington D.C. to Silicon Valley. Do not be fooled by the abundance of sexual content readily available to anybody with a wi-fi connection. Unlike its sibling graphic violence, sex has yet to be given a gaming platform like Xbox or Nintendo, who wrap bloody violence and often deviant imagery around trolls and unicorns. There is no middle ground for sex. An often binary decision to censor sexual content leads to rebellious undertones and social discord. The UK's Audiovisual Media Services Regulations 2014 banned spanking, aggressive whipping (light whipping ok), physical restraint, humiliation (that's not such a bad idea), female ejaculation (aka squirting), and playful strangulation. Bear in mind, nobody said you can't partake of these titillating escapades, you just can't professionally film it and distribute it under your own label. Censorship debates continue to be heard in the halls at the palace of Westminster and the floor of the US Senate. If history has taught us anything, it is it that they will continue to rage for the foreseeable future.
One may think that pornography━as we view it today in the form of videos online, on TV, or on DVDs━has only existed since about the 1970s. However, sexual content can be found throughout history in music, TV shows, films, art, books, magazines, the Internet, social media, and practically every type of media. Before the 1900s, even sculptures, paintings, literature, and other traditional art forms may have been considered pornographic at the time that they were created.
For as long as there has been sexual content, there has also been some entity or individual trying to censor it. The realm of pornography has experienced numerous regulations, bans, and other methods of censorship throughout the years. However, censoring it still seems to be riddled with difficulties for several reasons.
Defining Obscene Sexual Content
One of the recurring challenges with censorship of sexual content is that what is considered obscene or worthy of censorship is highly influenced on cultural norms at the time that it is created. Therefore, government officials and other regulators have struggled to agree on specific qualifications that deem a work obscene.
In fact, one of the most famous quotes related to sexual content and its censorship is from the 1964 Jacobellis vs. Ohio case, in which Nano Jacobellis, a theater manager, appealed an Ohio court’s ruling that fined him for showing The Lovers. The court struggled to come up with a clear set of guidelines or rules to qualify a work as obscene. One of the judges, Judge Stewart, even admitted that he couldn’t define hard-core pornography but professed that, "I don’t know what it is, but I know it when I see it."
The U.S. Supreme Court case also drew attention to whether or not sexual content and pornography were protected under the First Amendment of free expression. Also, if not protected, then what types of content were considered obscene enough to warrant censorship?
History of Censorship in the US
In the United States, sexual censorship has been a long-held topic of controversy. Because of the First Amendment that protects the freedom of expression from governmental interference, there are conflicting opinions on what types of speech and expression should be protected. When it comes to sexual content and pornography, the rules of censorship have gone through several changes throughout the years. The rules have changed, but censorship has been historically present in every form of media.
For example, a number of books like Fanny Hill, Ars Amatoria, and The 120 Days of Sodom were banned because of content that was considered lustful or risque at the time. Fanny Hill, which attempted to chronicle the life of a prostitute, was published in England in 1748. By 1821, it made its way to the United States and was quickly banned by a Massachusetts court for being obscene. The decision wasn’t overturned and the ban lifted until a Supreme Court ruling in 1966.
An even older written work, Ars Amatoria was written in 2 AD. The book gave advice on love and male and female relationships but was banned in the United States until 1928. Today, the material in those books would likely be considered tame compared to some current media portrayals.
The Film Industry’s Hays Code
Books weren’t the only form of media that experienced the pressure of censorship. From 1930 to 1968, the film industry was regulated by the Hays Code. The code, named after its creator, William H. Hays, was an attempt to censor certain content from Hollywood films. It regulated anything considered perverted, violent, obscene, or sinful. It also prohibited depictions of adultery, lustful kissing, and nudity.
However, the code was voluntary and self-imposed. Part of the reason for its creation was for the film industry to avoid governmentally-imposed restrictions by setting standards itself. Therefore, film companies decided whether or not a work was acceptable to be shown in American theaters based on the code. For a time, it was more or less successful in reining in content that may seem scandalous. Yet, once the competition from TV and foreign film industries began to impact the success of the US industry, filmmakers began to abandon the code for more sexualized stories, characters, and content.
The 1960s was a time when liberalism thrived and, as a result, the porn industry began to rise to prominence. Religious and other conservative leaders tried to squash the industry growth by creating anti-porn propaganda films. The films consisted of statistics that didn’t seem to be based in fact and hypothetical stories about how viewing porn would lead to violent behaviors and even murder.
When viewed today, the films may seem so ridiculous and cheesy that they could be considered laughable. But, at the time, their creators believed the imaginary stories and scare tactics would influence the public to stay far away from any type of content considered promiscuous or pornographic. The efforts to ban porn completely would seem to be unsuccessful, as the 1970s produced even more pornographic movies and other content.
Miller v. California
Before the 1970s, there didn’t seem to be a solid set of standards for what types of pornography are and are not protected under the First Amendment. However, the 1973 U.S. Supreme Court case, Miller v. California, created a clearer set of guidelines.
In the case, Marvin Miller, an owner of a mail-order porn material company, sent unsolicited brochures to individuals. One of the recipients called the police, who then arrested Miller for violating the California penal code regarding the unwarranted sending of content deemed obscene.
The case made it to the Supreme Court because of the vague legal qualifications of obscenity, and spawned the creation of the Miller test━a way to assess the obscenity of sexual material. The test has three standards, which are:
- (A) Whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489.
- (B) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
- (C) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
In order for a piece of work to be considered obscene, it must meet all of the three conditions.
The standards helped to more clearly define a way to assess sexual content. However, efforts to censor it and redefine the meaning of obscenity are still being made today.
Today, most pornography can be considered protected by the First Amendment, except for two categories━child and obscene pornography. Child pornography is self explanatory. Any sexual portrayals that feature minors is illegal.
However, obscene pornography has been historically harder to characterize. As long as an individual is of the legal age to watch it, and it falls in the standards outlined by the legal system, it can be considered protected.
Porn and the Internet
The drive to censor pornography fell off slightly after the 1973 ruling. However, once the Internet boomed in the 1990s, the porn industry also went through a bit of a revival. With the resurgence of widespread porn consumption, efforts to censor it were also renewed.
The Internet made it easier to access porn, but also more challenging to control the purchase and consumption of it by those under 18 years of age. Because of this, between 1995 and 1996, the porn industry was under increased pressure to censor material to prevent it from falling into the hands of minors.
The increased concern led to the Communications Decency Act (CDA) to be created in 1996. The act attempted to regulate indecency and obscenity to minors on the Internet. It called for criminal prosecution for any individual who knowingly:
- (A) Uses an interactive computer service to send to a specific person or persons under 18 years of age.
- (B) Uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.
The act went through a number of challenges and revisions, mainly because of the portion that tried to regulate indecency. Today, the Internet is the primary way that users consume and companies share pornographic material. It has made it easier, faster, and cheaper for porn companies to create and disseminate their content.
According to a 2013 report, there is a new porn video made every 39 minutes in the United States and over 35 percent of downloads contain pornographic material. At one point, the industry was estimated to produce revenues of up to $97 billion a year. Nowadays, after the rise of free porn sites, such as RedTube and YouPorn, as well as illegally torrented downloads, that figure is likely much less. Still, the Internet revitalized the porn industry and the two are now commonly intertwined.
Pornography and sexual content have existed since humans began to express themselves in paintings, literature, art, and other forms of media. At the same time, where there has been sexual content, there has also been a long-running history of censorship.
Looking back, the content produced by the porn industry from 10 or even five years ago may seem mild in comparison to today’s productions. And in 10 years from now, today’s pornography may also seem demure. However, what is considered obscene enough to be censored today will change tomorrow. Cultural and social norms of morality and decency will continue to evolve, and the efforts to censor media and pornography will remain.