How can sex (of all things) be obscene?

OBSCENITY A S PORNOGRAPH Y 13



9



reducing "psychic distance," even when moral sensibility is not involved. I

shall consider these distinct factors in turn.

The word "obscene" is commonly applied to behavior thought to be

immoral. When we use the word in this way, we do not reserve it necessarily for what we consider the most immoral behavior; secret, devious, or

subtle private immoralities, no matter how seriously wrong they may seem

to be, are rarely called "obscene" at all. (But see Chapter 10, note 25, p.

297.) Rather, we think of those immoralities that are absolutely open and

shameless, and therefore "shocking" or "disgusting," as the typically obscene ones. The word "obscene" emphasizes how shocking they are to

behold, as well as how flagrant they are as departures from a moral norm.

Thus utterly cynical, obvious, or brazen falsehoods told with amazing

aplomb before observers who know that they are intentional, are "obscene

lies" even when they are only moderate departures from the moral norm. It

is typically the grossly obtrusive offense to sensibility that elicits judgments

of obscenity, whether the sensibility in question be moral, religious, patriotic, or merely gustatory or sensory.

Naturally enough, persons who hold certain moral convictions about

sexual conduct will find blatantly obtrusive exhibitions or depictions of

tabooed sexuality obscene, not simply because they violate moral standards

but because they do so openly and blatantly. Given that such is the case,

the sensibilities of these persons would command the respect, and, if only

other things were equal, the protection, of the law.

This account, however, is still too vague to allay the puzzlement that

generated this psychological inquiry. Hardly anyone holds the conviction

that al l sexual behavior as such is wrong, whatever the circumstances and

whoever the actors. At most, people find illicit or unlicensed sex, sex out of

marriage, solitary sex, or sex at inappropriate times and places to be immoral. Yet many people find the depiction or explicit description of any sexual

conduct at all, licit or illicit, to be obscene. How then could the obscenity

stem from the perceived violation of moral principle?

The answer, I suspect, must employ the distinction between what i s

depicted, which is not thought to be obscene, at least not on moral grounds,

and th e act of depicting it , which may under the circumstances be a blatantly

offensive violation of moral norms. What is immoral (by the standards of

some offended parties) in vivid depictions or unvarnished descriptions of

the sex acts of real or fictitious persons, even when those acts in the depicted circumstances are entirely licit, are the "impure thoughts" in the

minds of the beholders, which are in large part "desires in the imagination"

for what would be immoral if realized. When the beholder finds the depiction obscene (on this account), he finds his own spontaneous concupiscence



140 OFFENS



E T O OTHER S



disgusting, and it quickly curdles into shame and revulsion; or, if the beholder is part of a group, he or she may think of the inevitably impure ideas

in the minds of the others as repugnant, or may take the act of showing or

describing sex as itself immoral insofar as it is meant to exploit the weakness

of the audience and induce impure thoughts in receptive minds. So it is not

that what is depicted is thought to be immoral, but rather that the act of

depicting it in those circumstances, and the spectacle of its common perception, with those motives, intentions, and likely effects, is thought to be

immoral and—because the immorality is shameless and open—obscene.

The second explanation of how sex can come to seem obscene has nothing to do with anyone's conception of morality. Even persons who utterly

reject the prevailing sexual taboos may find some sexual depictions offensive to the point of obscenity. The reactions of such persons are to be

sharply contrasted with those of people with prudish moral sensibilities

who get trapped between their own salaciousness and shame. The disgust

of this second group is not moral disgust. Rather, it is the spontaneous

revulsion to what is overpoweringly close that is commonly produced not

only by crude pornography but by other kinds of experiences as well.

George P. Elliott has diagnosed the phenomenon well:

Psychologically, the trouble with [artless] pornography is that, in our culture

at least, it offends the sense of separateness, of individuality, of privacy . . .

We have a certain sense of speeialness about those voluntary bodily functions

each must perform for himself—bathing, eating, defecating, urinating, copulating—Take eating, for example. There are few strong taboos around the act of

eating; yet most people feel uneasy about being the only one at the table who is

or who is not, eating, and there is an absolute difference between eating a rare

steak washed down by plenty of red wine and watching a close-up movie of

someone doing so. One wishes to draw back when one is actually or imaginatively too close to the mouth of a man enjoying his dinner; in exactly the same

way one wishes to remove oneself from the presence of man and woman

enjoying sexual intercourse. 27



"Not to withdraw," Elliott adds, "is to peep, to pervert looking so that it

becomes a sexual end in itself.'"8 Here he makes a different point and a less

tenable one. The point is (or should be) that if we are going to look without

being disgusted, we had better look from a proper distance, not that looking

at all is a "perversion". Not only erotically realistic art but also artful

pornography ca n satisfy the criterion of distance, and when it does we

identify imaginatively with one of the parties whom we watch rather than

thinking of ourselves as intrusive third parties or embarrassed "peepers."

Pornographers whose aim is aphrodisiac rather than emetic might well

consult Elliott for good tips. He tells us, with convincing examples, how

the problem of distance is solved in pictorial art, while implying that the



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141



same solutions must be forever unavailable to the pornographer, but that is

because he identifies pornography quite arbitrarily with the gross and artless kind. Distance is preserved in erotic pictorial art through the use of

artificial stylized images, as in the throngs of erotic statues on Indian

temples, by making the erotic image small, or by sketching it in with only a

few details:

One does not want to be close to a man while he is defecating nor to have a

close-up picture of him in that natural, innocent act—not at all because defecating is reprehensible, only because it is displeasing to intrude upon. One would

much rather have a detailed picture of a thief stealing the last loaf of bread from a

starving widow with three children than one of Albert Schweitzer at stool.

However, Brueghel's painting "The Netherlandish Proverbs" represents two

bare rear ends sticking out of a window, presumably of people defecating into

the river below, and one quite enjoys the sight—because it is a small part of a

large and pleasant picture of the world and because the two figures are tiny,

sketched in, far away. 29



What should we say—or, more to the point, what should the law say—

about those persons whose psyches are not accurately described by Elliott,

persons with special kinky tastes who prefer their psychic distances short

and their sexual perceptions large and detailed? Tiny Gulliver (as Elliott

reminds us) is "revolted by every blemish on the breast of the Brobdingnagian wet nurse suckling the baby." 30 Even though the breast was pleasingly

shaped and would have been delightful to behold had its proportions been

suited to persons of Gulliver's size, it extended six feet from the nurse's

body and its nipple was "half the size of a man's head." Swift makes his

point well, and most readers are appalled in their imaginations, but what

are we to say of the special reader who is sexually excited by the very

thought of this normally emetic object? The law, of course, should say

nothing at all, provided that satisfaction of the quirky taste is not achieved

at the cost of direct offense to unwilling observers.

The more interesting point, however, is that the overwhelming majority

of people do not enjoy being spatially or psychologically close to the physiological organs and processes deemed "private" in our culture. To revel in

these objects is about as common a pastime, I should think, as reveling in

the slinky, smelly things that most of us find immediately repellant to the

senses and thus in an analogous way obscene.

Our discussion of the relation between (judgmental) obscenity and pornography can now be summarized. Obscenity and pornography are entirely

distinct concepts that overlap in their applications to the world but by no

means coincide. Obscene things are those that are apt to offend people by



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OFFENSE TO OTHERS



eliciting such reactions as disgust, shock, and repugnance. Moreover, when

we call something obscene we usually wish to endorse some form of offense

as the appropriate reaction to it. Pornography, on the other hand, simply

consists of all those pictures, plays, books, and films whose raison d'etre is

that they are erotically arousing. Some obscene things (e.g., dirty words

and insulting gestures) are not pornographic. Indeed some obscene things

have nothing whatever to do with sex. Human wastes and other disgusting

objects fall into that subcategory of the obscene, as do acts of rejoicing in

the misfortunes of others, racial slurs, shameless lies, and other blatant but

nonsexual immoralities. Some pornographic things, for example artful

paintings, are not obscene. Others, such as close-up, highly magnified photographs of sexual couplings are obscene, though their very obscenity tends

to defeat their pornographic purpose.

In the absence of convincing evidence of its causal tie to social harms,

pornography ought to be prohibited by law only when it is obscene and

then precisely because it is obscene. But obscenity (extreme offensiveness)

is only a necessary condition, not a sufficient condition, for rightful prohibition. In addition, the offending conduct must not be reasonably avoidable, and the risk of offense must not have been voluntarily assumed by the

beholders. (No doubt additional conditions might also be added such as, for

example, that reasonable efforts have been made to exclude children.)

The defining purposes of plotted fiction and dramatic literature cannot be

satisfied by a work that is also properly denominated pornographic. On the

other hand, there is no contradiction in the idea of a pornographic painting,

musical composition, or (perhaps) poem. But the question whether or not

art can be pornographic, while obviously important for American constitutional law, which places limits on what legislatures may do, is of less interest to critical public policy, which asks what legislatures ought to do from

among the alternative courses permitted them. The Supreme Court has

interpreted the first amendment as permitting legislatures to prohibit all

obscenity that is not also art (or opinion). 3 ' Reasonable liberty-limiting

principles also give special importance to works of art but prevent legislatures from prohibiting even obscene non-art provided that it is not imposed

on unwilling audiences. It is quite unnecessary to determine whether (or to

what degree) a given book or film is also art, when the only people who

experience it are either unoffended or have voluntarily assumed the risk of

offense in advance.

Finally, we considered how sexual conduct could possibly seem obscene

to anyone, given the universal human propensity to derive extreme pleasure

from it. Those who find pornography obscene, we concluded, do so either

when it is done in circumstances that render it (by their standards) both



OBSCENITY A S PORNOGRAPH Y 14



3



immoral and blatantly and shamelessly obtrusive and thus shocking to moral sensibility, or else when it has reduced psychic distance to the threshold

of repugnance or disgust, even when no moral considerations are involved.



7. Th e feminist case against pornography^ 2

In recent years a powerful attack on pornography has been made from a

different quarter and on different, but often shifting grounds. Until 1970 or

so, the demand for legal restraints on pornography came mainly from "sexual conservatives," those who regarded the pursuit of erotic pleasure for its

own sake to be immoral or degrading, and its public depiction obscene. The

new attack, however, comes not from prudes and bluenoses, but from

women who have been in the forefront of the sexual revolution. We do not

hear any of the traditional complaints about pornography from this group—

that erotic states in themselves are immoral, that sexual titillation corrupts

character, and that the spectacle of "appeals to prurience" is repugnant to

moral sensibility. The new charge is rather that pornography degrades,

abuses, and defames women, and contributes to a general climate of attitudes toward women that makes violent sex crimes more frequent. Pornography, they claim, has come to pose a threat to public safety, and its legal

restraint can find justification either under the harm principle, or, by analogy with Nazi parades in Skokie and K.K.K. rallies, on some theory of

profound (and personal) offense.

It is somewhat misleading to characterize the feminist onslaught as a new

argument, or new emphasis in argument, against the same old thing. By the

19605 pornography itself had become in large measure a new and uglier

kind of phenomenon. There had always been sado-masochistic elements in

much pornography, and a small minority taste to be served with concentrated doses of it. There had also been more or less prominent expressions

of contemptuous attitudes toward abject female "sex objects," even in much

relatively innocent pornography. But now a great wave of violent pornography appears to have swept over the land, as even the mass circulation porno

magazines moved beyond the customary nude cheesecake and formula

stories, to explicit expressions of hostility to women, and to covers and

photographs showing "women and children abused, beaten, bound, and

tortured" apparently "for the sexual titillation of consumers."" When the

circulation of the monthly porn magazines comes to 16 million and the

porno industry as a whole does $4 billion a year in business, the new trend

cannot help but be alarming.34

There is no necessity, however, that pornography as such be degrading to

women. First of all, we can imagine easily enough an ideal pornography in



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which men and women are depicted enjoying their joint sexual pleasures in

ways that show not a trace of dominance or humiliation of either party by

the other.35 The materials in question might clearly satisfy my previous

definition of "pornography" as materials designed entirely and effectively to

induce erotic excitement in observers, without containing any of the extraneous sexist elements. Even if we confine our attention to actual specimens

of pornography—and quite typical ones—we find many examples where

male dominance and female humiliation are not present at all. Those of us

who were budding teenagers in the 19305 and '408 will tend to take as our

model of pornography the comic strip pamphlets in wide circulation among

teenagers during that period. The characters were all drawn from the popular legitimate comic strips—The Gumps, Moon Mullins, Maggie and Jiggs,

etc.—and were portrayed in cartoons that were exact imitations of the

originals. In the pornographic strips, however, the adventures were all

erotic. Like all pornography, the cartoons greatly exaggerated the size of

organs and appetites, and the "plot lines" were entirely predictable. But the

episodes were portrayed with great good humor, a kind of joyous feast of

erotica in which the blessedly unrepressed cartoon figures shared with perfect equality. Rather than being humiliated or dominated, the women characters equalled the men in their sheer earthy gusto. (That feature especially

appealed to teenage boys who could only dream of unrestrained female

gusto.) The episodes had no butt at all except prudes and hypocrites. Most

of us consumers managed to survive with our moral characters intact.

In still other samples of actual pornography, there is indeed the appearance of male dominance and female humiliation, but even in many of these,

explanations of a more innocent character are available. It is in the nature of

fantasies, especially adolescent fantasies, whether erotic or otherwise, to

glorify imaginatively, in excessive and unrealistic ways, the person who

does the fantasizing. When that person is a woman and the fantasy is

romantic, she may dream of herself surrounded by handsome lovesick suitors, or in love with an (otherwise) magnificent man who is prepared to

throw himself at her feet, worship the ground she walks on, go through hell

for her if necessary—the cliches pile up endlessly. If the fantasizing person

is a man and his reverie is erotic, he may dream of women who worship the

ground h e walks on, etc., and would do anything for the honor of making

love with him, and who having sampled his unrivaled sexual talents would

grovel at his feet for more, etc., etc. The point of the fantasy is self-adulation, not "hostility" toward the other sex.

Still other explanations may be available. "Lust," wrote Norman Mailer,

"is a world of bewildering dimensions . . ."3
hold of the imagination, it is likely to be accompanied by almost any images



OBSCENITY A S PORNOGRAPH Y 14



5



suggestive of limitiessness, any natural accompaniments of explosive unrestrained passion. Not only men but women too have been known to scratch

or bite (like house cats) during sexual excitement, and the phrase "I could

hug you to pieces"—a typical expression of felt "limitiessness"—is normally

taken as an expression of endearment, not of homicidal fury. Sexual passion

in the male animal (there is as yet little but conjecture on this subject) may

be associated at deep instinctive or hormonal levels with the states that

capture the body and mind during aggressive combat. Some such account

may be true of a given man, and explain why a certain kind of pornography

may arouse him, without implying anything at all about his settled attitudes

toward women, or his general mode of behavior toward them. Then, of

course, it is a commonplace thai: many "normal" people, both men and

women, enjoy sado-masochistic fantasies from time to time, without effect

on character or conduct. Moreover, there are pornographic materials intended for men, that appeal to their masochistic side exclusively, in which

they are "ravished" and humiliated by some grim-faced amazon of fearsome

dimensions. Great art these materials are not, but neither are they peculiarly degrading to women.

It will not do then to isolate the most objectionable kinds of pornography,

the kinds that are most offensive and even dangerous to women, and reserve

the label "pornographic" for them alone. This conscious redefinition is what

numerous feminist writers have done, however, much to the confusion of

the whole discussion. Gloria Stcinem rightly protests against "the truly

obscene idea that sex and the domination of women must be combined"37

(there is a proper use of the word "obscene"), but then she manipulates

words so that it becomes true by definition (hence merely trivially true) that

all pornography is obscene in this fashion. She notes that "pornography"

stems from the Greek root meaning "prostitutes" or "female captives,"

"thus letting us know that the subject is not mutual love, or love at all, but

domination and violence against women." 38 Steinem is surely right that the

subject of the stories, pictures, and films that have usually been called

"pornographic" is not love, but it doesn't follow that they are all without

exception about male domination over women either. Of course Steinem

doesn't make that further claim as a matter of factual reporting, but as a

stipulated redefinition. Her proposal can lead other writers to equivocate,

however, and find sexist themes in otherwise innocent erotica that have

hitherto been called "pornographic"—simply because they ar e naturally

called by that name. Steinem adopts "erotica" as the contrasting term to

"pornography" as redefined. Erotica, she concludes, is about sexuality, but

"pornography is about power, and sex-as-a-wcapon," conquerors dominating victims. The distinction is a real one, but better expressed in such terms



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OFFENSE TO OTHERS



as "degrading pornography" (Steinem's "pornography") as opposed to

"other pornography" (Steinem's "erotica").

At least one other important distinction must be made among the miscellany of materials in the category of degrading pornography. Some degrading pornography is also violent, glorifying in physical mistreatment of the

woman, and featuring "weapons of torture or bondage, wounds and

bruises."39 "One frightening spread from Chic Magazine showed a series of

pictures of a woman covered with blood, masturbating with a knife. The

title was 'Columbine Cuts Up'."4° A movie called "Snuff" in which female

characters (and, it is alleged, the actresses who portrayed them) are tortured

to death for the sexual entertainment of the audiences, was shown briefly in

a commercial New York theatre. The widely circulated monthly magazine

Hustler once had a cover picture of a nude woman being pushed head first

into a meat grinder, her shapely thighs and legs poised above the opening to

the grinder in a sexually receptive posture, while the rest comes out of the

bottom as ground meat. The exaggeration of numbers in Kathleen Barry's

chilling description hardly blunts its horror: "In movie after movie women

are raped, ejaculated on, urinated on, anally penetrated, beaten, and, with

the advent of snuff films, murdered in an orgy of sexual pleasure."4' The

examples, alas, are abundant and depressing.

There are other examples, however, of pornography that is degrading to

women but does not involve violence. Gloria Steinem speaks of more subtle

forms of coercion: "a physical attitude of conqueror and victim, the use of

race or class difference to imply the same thing, perhaps a very unequal

nudity with one person exposed and vulnerable while the other is clothed."42

As the suggested forms of coercion become more and more subtle, obviously

there will be very difficult line-drawing problems for any legislature brave

enough to enter this area.

Yet the most violent cases at one end of the spectrum are as clear as they

can be. They all glory in wanton and painful violence against helpless

victims and do this with the extraordinary intention (sometimes even successful) of causing sexual arousal in male viewers. One could give every

other form of pornography, degrading or not, the benefit of the doubt, and

still identify with confidence all members of the violent extreme category.

If there is a strong enough argument against pornography to limit the

liberty of pornographers, it is probably restricted to this class of materials.

Some feminist writers speak as if that would not be much if any restriction,

but that may be a consequence of their defining pornography in terms of its

most revolting specimens.43 A pornographic story or film may be degrading

in Steinem's subtle sense, in that it shows an intelligent man with a stupid

woman, or a wealthy man with a chambermaid, and intentionally exploits



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the inequality for the sake of the .special sexual tastes of the presumed male

consumer, but if that were the only way in which the work degraded

women, it would fall well outside the extreme (violent) category. All the

more so, stories in which the male and female are equals—and these materials too can count as pornographic—would fall outside the objectionable

category.

May the law legitimately be used to restrict the liberty of pornographers

to produce and distribute, and their customers to purchase and use, erotic

materials that are violently abusive of women? (I am assuming that no

strong case can be made for the proscription of materials that are merely

degrading in one of the relatively subtle and nonviolent ways.) Many feminists answer, often with reluctance, in the affirmative. Their arguments can

be divided into two general classes. Some simply invoke the harm principle.

Violent pornography wrongs and harms women, according to these arguments, either by defaming them as a group, or (more importantly) byinciting males to violent crimes against them or creating a cultural climate

in which such crimes are likely to become more frequent. Th e two traditional legal categories involved in these harm-principle arguments, then, are

defamation and incitement. The other class of arguments invoke the offense

principle, not in order to prevent mere "nuisances," but to prevent profound offense analogous to that of the Jews in Skokie or the blacks in a

town where the K.K.K. rallies.



8. Violent pornography, the cult of macho,

and harm to women

I shall not spend much time on the claim that violent and other extremely

degrading pornography should be banned on the ground that it defames

women. In a skeptical spirit, I can begin by pointing out that there are

immense difficulties in applying the civil law of libel and slander as it is

presently constituted in such a way as not to violate freedom of expression.

Problems with criminal libel and slander would be even more unmanageable,

and group defamation, whether civil or criminal, would multiply the problems still further. The argument on the other side is that pornography is

essentially propaganda—propaganda against women. It does not slander

women in the technical legal sense by asserting damaging falsehoods about

them, because it asserts nothing at all. But it spreads an image of women as

mindless playthings or "objects," inferior beings fit only to be used and

abused for the pleasure of men, whether they like it or not, but often to their

own secret pleasure. This picture lowers the esteem men have for women,

and for that reason (if defamation is the basis of the argument) is sufficient



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OFFENSE T O OTHERS



ground for proscription even in the absence of any evidence of tangible harm

to women caused by the behavior of misled and deluded men.

If degrading pornography defames (libels or slanders) women, it must be

in virtue of some beliefs about women-—false beliefs—that it conveys, so

that in virtue of those newly acquired or reenforced false beliefs, consumers

lower their esteem for women in general. If a work of pornography, for

example, shows a woman (or group of women) in exclusively subservient or

domestic roles, that may lead the consumer to believe that women, in virtue

of some inherent female characteristics, are only fit for such roles. There is

no doubt that much pornography does portray women in subservient positions, but if that is defamatory to women in anything like the legal sense,

then so are soap commercials on TV. So are many novels, even some good

ones. (A good novel may yet be about some degraded characters.) That

some groups are portrayed in unflattering roles has not hitherto been a

ground for the censorship of fiction or advertising. Besides, it is not clearly

the group that is portrayed at all in such works, but only one individual (or

small set of individuals) and fictitious ones at that. Are fat men defamed by

Shakespeare's picture of Falstaff? Are Jews defamed by the characterization

of Shylock? Could any writer today even hope to write a novel partly about

a fawning corrupted black, under group defamation laws, without risking

censorship or worse? The chilling effect on the practice of fiction-writing

would amount to a near freeze.

Moreover, as Fred Berger points out,44 the degrading images and defamatory beliefs pornographic works are alleged to cause are not produced in the

consumer by explicit statements asserted with the intent to convince the

reader or auditor of their truth. Rather they are caused by the stimulus of

the work, in the context, on the expectations, attitudes, and beliefs the

viewer brings with him to the work. That is quite other than believing an

assertion on the authority or argument of the party making the assertion, or

understanding the assertion in the first place in virtue of fixed conventions

of language use and meaning. Without those fixed conventions of language,

the work has to be interpreted in order for any message to be extracted

from it, and the process of interpretation, as Berger illustrates abundantly,

is "always a matter of judgment and subject to great variation among

persons."45 What looks like sexual subservience to some looks like liberation

from sexual repression to others. It is hard to imagine how a court could

provide a workable, much less fair, test of whether a given work has sufficiently damaged male esteem toward women for it to be judged criminally

defamatory, when so much of the viewer's reaction he brings on himself,

and viewer reactions are so •widely variable.

It is not easy for a single work to defame successfully a group as large as