Obscenity

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An obscenity is any statement or act that strongly offends the prevalent morality of the time. Satirizing the ruler may be obscene, offending the god(s) may be obscene, making obscene profits is obscene.

The United States, a litigious country (it was born litigious), has led the world in specifying specifically what obscenity is, in the United States. "Freedom of the press" is protected in the First Amendment to the Constitution of the United States. However, the U.S. Supreme Court has repeatedly declared that the First Amendment does not protect obscenity.

This is how these things get decided in the United States: the Supreme Court decides them. The Supreme Court justices are nominated by the president and confirmed by the Senate; after that, they have a job for life and never have to worry about elections. This is as close to royalty that one finds in the United States, created before the French revolution of 1789, when monarchy had never been seriously challenged outside of England. Nominating supreme court judges is one of the most important and impactful presidential duties.

Whatever you think of the Supreme Court justices - I will not put here my opinion of Clarence Thomas - it is undeniable that they have taken their positions seriously. These highly-educated men and women - better educated than most members of congress and all presidents except Woodrow Wilson - have not been immune to ideological pressures. Yet so far as is known - and the Supreme Court is intensely scrutinized - there has been no bribery for a very long time. In the United States, this is as close to incorruptibility as one gets. Some scholars have pointed out that being subject to ideological pressures is not only wise, it is inevitable.

What these distinguished gentlemen have left us with is the equation of providing sexual stimulation with "lack of social value". The one thing you can't do is turn readers on; that is awful and we've prohibited it. Teach someone (in a book) how to kill, the First Amendment protects you. Provide sexual pleasure, or teach the reader how to get or find or give sexual pleasure, that serves no social purpose and the state has a legitimate interest in prohibiting it.

It is rare to see such a clearcut labelling of sex, of pleasure as bad. (In the seventeenth-century Counterreformation, color was too sensual, so paintings were done in black and white.)

Masturbation was threatening to females. Who's going to buy the cow if they can get the milk for free?

The Rest of the Story (remember Paul Harvey?)

Paul Harvey was a radio personality that survived into the 2000's; he had a 5-minute daily program of colorful news and commentary. Like it or not, I'm an old fart. But at least I'm a living, masturbating fart. Anybody remember Garner "Ted" Armstrong? Hey, look him up, you twerp.

Even though the First Amendment does not protect obscenity (what we would today call pornography), pornography is everywhere in the United States and other Western countries. There's a YouPorn for user-created videos, inspired by YouTube. You can get it on (expensive) pay TV in your hotel room or cable TV system. The online market for used porn, adultdvdmarketplace - dot - com - has over a million listings. There's much more free porn on the Internet (see Internet pornography), searchable by keyword, than one could see in a lifetime. Just one of the 15 or so big free video porn clip hosts, xvideos, reports over 6,000,000 videos and "3,000+ submissions per day". No one reviews them, but user complaints can get problematic ones pulled right away. Depending on where they are hosted they have different limits on what type of material they accept. They vary on how they treat body products other than piss and vomit (blood, scat), violence, and incest. (Fisting and piss used to be on the taboo list - you won't find them in early porn movies, and a fisting scene was censored from some releases of Candy Striper.) None accept child pornography. Some do not want videos showing racial and ethnic abuse (but some do).

However, material which is legal in a country other than one's own is easily accessed via the Internet. Some use a VPN to prevent their government from spying on their Internet activity (although payments are always traceable).

Could it all be legal in the United States? Yes it could. None of it is obscene. It all has redeeming social value.

The Americans are logical to a fault. You find it hard to see the redeeming social value, other than causing sexual excitement, in "666analsluts #5"? It teaches how to be an anal slut, that plenty of women are anal sluts (it's up to #5, and shows no sign of stopping), and that anal sex is O.K. That's sex education. 666 means that it has something Satanic, so it provides religious education.

Hey, it's not "utterly" without social value. So it's not obscene. So it's legal. That's how the U.S. does these things. (The preceding example is invented, so as to make the process clear.) But does "legal" mean "legal to own", or "legal to make and sell"? The latter right is harder to defend. American porn producers and web porn hosts are more conservative than the equivalents in other countries, because they fear, for example, the legal consequences of selling adult incest videos. For some videos, such as those of Max Hardcore, there is an uncensored version for Europe and a censored version for the U.S. market. Sellers of BDSM and other fetish porn (DVDs) have areas of the country they consider (based on previous legal action, 20 years ago) unsafe to mail their products to.

The Rest of the Rest of the Story

Judges are influenced by the mores of the people of their town, county, or state. They have to be, because otherwise they would be recalled (fired by special election in the middle of the term), or voted out of office at the next election. Three little-known heroes of the march towards gay marriage in the United States are the judges of the Iowa Supreme Court who voted to legalize gay marriage in Iowa. All lost their jobs at the next election.

The actual story, from the 1960's to the 2000's, has been lurching from one case to another, as typically happens in the U.S. case law system. The willingness of some who were willing to stand up and spend money defending their First Amendment right of free speech has certainly helped. Barney Roth and the scruffier Al Goldstein are the best examples. The porn industry has been well organized and mutually supportive, vigorously defending any seller of their products facing obscenity charges. Probably this has prevented some charges from being brought, because prosecutors knew that there would be a vigorous defense, possibly bad publicity, and that juries might refuse to convict. At the same time, society has seen that porn doesn't lead to rapes or sexual abuse; it probably helps prevent them. Society doesn't want less porn and isn't concerned about it. So the prosecutors just leave it alone, as long as everyone's over 18.

Prosecution for possession of any type of porn, except child porn, has disappeared. (They've got their hands full with the "easy", though abundant, child pornography cases.) One of the only obscenity prosecutions in the United States since 2000 that did not involve child pornography was that of a producer, Paul Little, nom de porn Max Hardcore, who was found innocent of then guilty of and served three years of a five-year federal sentence. There is also the case of the US v. Fletcher. In September 2006, Federal authorities prosecuted Karen Fletcher for transmitting obscene materials in violation of 18 U.S.C. 1462(a) and 2, after she posted various stories on the website describing the torture, sexual molestation, and murder of fictional children. The case was notable because the allegedly obscene materials were text only, and the government has never won a conviction based solely on text under current obscenity law. Fletcher pled guilty to six counts of distributing obscene materials online in August 2008. She was sentenced to a term of probation of 60 months, with 6 months of home detention, a fine of $1,000, and a special assessment of $600.[1]

The question of whether child pornography, obscene and unprotected, can include something other than actual pictures of minors remains undecided in the U.S.; cases conflict, as is usual in the U.S. when the Supreme Court has not yet ruled on a controversial issue. Verbal child pornography (stories about kids and sex) has so far (2015) not been subject to attack. The status of drawn child pornography (cartoons) varies from one jurisdiction to another, though it is not a priority for law enforcement, since the system already has abundant possessors of pictures of actual children to deal with. Cases tend to be a result of something else, such as a spouse calling the police. (See the excellent article http://en.wikipedia.org/wiki/Legal_status_of_cartoon_pornography_depicting_minors.) The

See also

Organized industry

According to the famous 1957 Roth Supreme Court decision, the obscene work must also be "utterly without redeeming social value" to lose First Amendment protection. "Socially valuable" meant, and still means today, doing something other than sexually stimulating the reader or viewer.
  1. http://www.dmlp.org/threats/united-states-v-fletcher