The End of Obscenity
Neuhaus, Richard, First Things: A Monthly Journal of Religion and Public Life
Forget about obscenity, writes Jeffrey Rosen in the New Atlantis, the new journal published by the Ethics and Public Policy Center. Already back in 1973, the Supreme Court was caving when it adopted (in Miller v. California) an impossible-to-maintain distinction between hard-core and soft-core pornography, with the latter limited to adults. The idea of judging by "community standards" was short-lived. Ten years after Miller, a federal court ruled that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation" are not obscene "in light of community standards prevailing in New York City." Not if the measure is what was then the X-rated Times Square area, which has in recent years been turned into a "family friendly environment." But those court rulings were in the days before the Internet. Rosen, who is the New Republic's regular on legal matters, cites data from a number of studies. For instance, one fourth of search engine requests every day are for pornographic material. Far below, one notes, the number of requests that fall into the broad category of "religion." So Chesterton's nation with the soul of a church has not closed down its whorehouses. What else is new?
Men make up 65 percent of visitors to porn sites, reports Rosen. No surprise there. Then there is this: "Moreover, 15 percent of teens (ages twelve to seventeen) and 25 percent of older boys (ages fifteen to seventeen) have lied about their age to access an Internet site, according to the Pew research center." Only 15 and 25 percent? That strikes me as encouragingly low for boys in those hyper-hormonal years, considering that lying involves nothing more than pushing a button and nobody will know (except, apparently, the people at Pew). Rosen cites international data: 40 percent of adults in Spain, 25 percent in Britain, and 19 percent in Sweden, have visited what he calls "an adult site," meaning, of course, an adolescent site, all pornography being adolescent. He concludes from this that "there is no country in which consumption of hard-core pornography could plausibly be said to be 'patently offensive' to the average person by applying contemporary community standards."
I suppose it depends on the meaning of "average." If 75 percent of adults in Britain have not visited porn sites, despite their ready availability in the privacy of one's home, might not that have a bearing on what is average? I expect that more than 20 percent of Americans have gotten drunk at some time, which hardly means that they, never mind all those who haven't, think that drunkenness is not patently offensive. That a minority of a population gets drunk from time to time or furtively--and possibly with feelings of shame and guilt--watch pornography is hardly the measure of "community standards." Unless, of course, the majority of the Supreme Court is doing the measuring. At this point, Rosen reaches more solid ground. It is not, he notes, the standards of the American people that matter but the opinion of the Court. There probably is nothing to be done about obscenity or pornography if the last word is the Court's ruling on sexual autonomy in Lawrence v. Texas, which established a constitutional right to sodomy.
The Sweet Mystery Again
In that decision, Justice Anthony Kennedy, writing for the majority, repeated the "sweet mystery of life" rule that was first announced in Casey v. Planned Parenthood (1992) in upholding the unlimited abortion license: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Ah yes, those are no doubt the solemn questions pondered by a middle-aged sex addict visiting a site titled "Hot Dudes Do Dixie Chicks." Rosen correctly observes: "Now that moral disapprobation is not considered a constitutionally rational reason for restricting behavior, no definition of obscenity that relied on communal disapproval …
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Publication information: Article title: The End of Obscenity. Contributors: Neuhaus, Richard - Author. Magazine title: First Things: A Monthly Journal of Religion and Public Life. Issue: 149 Publication date: January 2005. Page number: 61+. © 2009 Institute on Religion and Public Life. COPYRIGHT 2005 Gale Group.
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