Mainstream Men‟s Magazines
2. Graphic Images: Pornography and the Public‟s Response to „Selling Sexuality‟
The Philippine legal system is patterned quite literally on American civil and criminal law. The discussion here focuses on obscenity, which legally regards unprotected or regulated speech arising from but not limited to pornography as a criminal offense.
a. Defining Obscenity
Many people do not realize that in our society, which trumpets free speech, that there are many restrictions on speech, including restrictions on explicit sexual images and words or "obscene" materials. Other forms of unprotected or regulated speech include:
Speech which creates a clear and present danger of imminent lawless action;
Speech which contains narrowly predefined "fighting words";
written or spoken untruths (libel, slander, fraud) which may be punished by civil suit;
Speech which is false or deceptive advertising; speech which threatens others; and,
Speech with restrictions justified because the government can demonstrate a
‗narrowly tailored compelling interest‘.
According to the Supreme Court, "obscene" speech is "unprotected". "Unprotected speech" does not enjoy First Amendment protection. In explaining "hard-core", or obscene, pornography, Justice Potter Stewart said in 1964, "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 …"71
Figure 12: Erotic Art versus Pornography: A Matter of Personal Taste and Perception
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This quote (and the intentions behind it) is well known and summarizes the irony and difficulty of trying to define obscenity. For at least fifty years, the Supreme Court has been struggling with defining what speech is "obscene". Can we do better now?
The First Definition
In 1957, Brennan crafted the first Supreme Court legal definition of obscenity in the case of Roth v. United States. Although indirectly addressed in the law to this point, Roth's formal legal holding on pornography was a case of first impression for the US Supreme Court.
Brennan held that the First Amendment did not protect obscene materials.
The definition of obscenity set forth in Roth was:
Speech which ―. . . to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to
prurient interest" and which is "utterly without redeeming social importance…"
By 1964, lower courts had misapplied the Roth standard, resulting in many cases for Court review. The Court then tried to clarify this standard by adding another requirement for obscenity in later opinions  —that the material goes "substantially beyond customary limits of candor in description or representation." The Court also explicated that the "community"
referred to in the definition was the national, not local, community. This clarification resulted
71 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). In Judith A Silver. FindLaw: For Legal Professionals. Available online at http://library.findlaw.com/2003/May/15/132747.html
EROTIC ART PORNOGRAPHY
“…but I know it when I see it…”
in a more liberal definition of obscenity.
The Second and Current Definition
The tide turned more conservatively on free speech and sex when two liberal justices, Chief Justice Earl Warren, an Eisenhower appointee, and Black, a Roosevelt appointee, resigned in 1969 and 1971. President Nixon replaced them with Chief Justice Warren Burger and Justice William Rehnquist, along with two other appointees Justice Harry Blackmum and Justice Lewis Powell. With the arrival of Rehnquist and Burger, the Court‘s opinions on obscenity became more conservative. In the summer of 1973, the Court decided on a group of pornography/obscenity cases that set a standard for the future of pornography. In his Dissent in one of these cases, Justice Brennan wearily admitted:
"Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms."72
Unfortunately, this realization came too late and without support from the majority of the Court. Thus, in Miller v. California (1973), Justice Burger announced a second definition of obscenity, which, more or less, is still in effect today. It is as follows:
(a) Whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This ruling specifically replaced the older one and also held that community standards could be local rather than national. This change enabled a more conservative definition of
"obscenity" by allowing interpretation by local, sometimes rural communities. While many complained that these rulings were too vague and were impossible to enforce on those trying to comply with the law, the Court set forth examples of what was "hard core", or that which the Court considered to be obscene and illegal. The Court's list of illegal acts was as follows:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or
72 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 103 (1973). In Judith A Silver. FindLaw: For Legal Professionals.
Available online at http://library.findlaw.com/2003/May/15/132747.html
perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.73
Clarifications and Today's Definition
Since Miller, the Court further clarified and explained aspects of the Miller standard.
Jurors had to apply the standards of the area "from which he comes for making the required‖
decision as the "community standards" for obscenity.74 "Appeals to the prurient interest"
mean appeals to "shameful or morbid interests" in sex but not those inciting normal lust75 and include materials designed for or primarily disseminated to a deviant sexual group (for example, sadists).76 The "average person" includes both sensitive and insensitive adult persons but does not include children.77 Serious artistic, political, or scientific value, using a national standard, is required for a finding that is not obscene and a finding of some artistic, political or scientific value does not preclude a finding whose work is obscene.78
In addition, the Court created a middle category of materials—"indecent" materials that are protected speech. Indecent materials are defined as those showing "non-conformance with accepted standards of morality."79 In light of the above review, most persons, including lawyers, remain confused about what is and is not legally permissible.
b. The Movement against the Sexualization of the Visual Media
Most, if not all, people seem to want in principle stronger regulation of sexual content and profanity—obscenity. Family-oriented cause groups, the Church and the state have been putting pressure on the mass media, particularly the movie and television industries, to reduce the degree of sexual explicitness in their general releases. Some argue that G and PG rated movies profit more than R-rated ones. The internet, however, is vaguely regulated, exposing
73 Miller v. California, 413 U.S. 15, 24-25 (1973). In Judith A Silver. FindLaw: For Legal Professionals.
Available online at http://library.findlaw.com/2003/May/15/132747.html
74 Hamling v. United States, 418 U.S. 87, 105 (1974). In Judith A Silver. FindLaw: For Legal Professionals.
Available online at http://library.findlaw.com/2003/May/15/132747.html
75 Brockett v. Spokan Arcades Inc., 472 U.S. 491 (1985). In Judith A Silver. FindLaw: For Legal Professionals.
Available online at http://library.findlaw.com/2003/May/15/132747.html
76 Mishkin v. New York, 383 U.S. 502 (1966). In Judith A Silver. FindLaw: For Legal Professionals. Available online at http://library.findlaw.com/2003/May/15/132747.html
77 Pinkus v. United States, 436 U.S. 293, 298-299 (1978). In Judith A Silver. FindLaw: For Legal Professionals.
Available online at http://library.findlaw.com/2003/May/15/132747.html
78 Pope v. Illinois, 481 U.S. 497 (1987). In Judith A Silver. FindLaw: For Legal Professionals. Available online at http://library.findlaw.com/2003/May/15/132747.html
79 FCC v. Pacifica, 438 U.S. 726, 741 (1978). In Judith A Silver. FindLaw: For Legal Professionals. Available online at http://library.findlaw.com/2003/May/15/132747.html
children to sexually explicit material, if not properly supervised by the parents.
The idea here is that there is almost limitless access to pornography. Yet, there is not one coherent and definitive voice about it. In fact, many disagreements exist about the issue of pornography from all fronts: free-speech advocates, anti-porn and anti-anti-porn feminists, religious groups, presidential commissions, civil society, and the pornography industry. The question remains why? At the heart of all the debate on pornography is the utter difficulty in defining it. As Justice Stewart famously said, "I know it when I see it." This now becomes the standard reply to the question, resulting to more confusion than not. Today, ―pornography is generally defined as sexually explicit material (verbal or pictorial) that is primarily designed to produce sexual arousal in viewers.‖80 However, pornography may select different types of material in different contexts, since what is viewed as sexually explicit can vary from culture to culture and over time. The First Amendment thus allows for ―freedom of speech‖, although its meaning is actually debatable. In short, the U.S. court has a 3-part definition of obscenity:
Appeal to prurient interest,
Offend contemporary community standards,
Lack serious literary, artistic, political, or scientific value.
The pornography debates are ranging from:
1. Free speech and censorship—can a government legitimately prohibit citizens from