Kink Friendly Law

Posts Tagged ‘Pornography’

Kinky Americans, are not the only sexually adventurous types to need to heed the old adage, “don’t try this at home!” Recently a UK kinkster, after consuming seven (7) pints of lager and one vodka & coke, decided the sure fire way to sexual self-gratification was once he’d return home, to remove his clothing, tie himself naked to a tree and for the coup de grace, tie a loop around his penis. Sometime during the cold evening, probably after reality reared its ugly head, he realized that his self-bondage wasn’t the best idea. Unfortunately he had made his rope bindings too secure and was unable to free himself.  Read the rest of this entry »

Pornography, the very mention of the word causes an almost immediate reaction in people ranging from shock to embarrassment. Calling pornography a “hot-button” issue is an understatement. With groups ranging from fundamentalist preachers calling for a ban on pornography on moral grounds citing it as a factor in the decay of our traditional moral society to feminists who believe pornography perpetuates gender stereotypes and encourages or condones violence towards women.      

Americans from the “average Joe” on the street to the United States Supreme Court have wrestled with this particular issue for many years. In 1969 a legal definition came out of an Ohio case;

“Pornography is the portrayal of erotic behavior designed to cause sexual excitement. It is words, acts, or representations that are calculated to stimulate sex feelings independent of the presence of another loved and chosen human being. It is divorced from reality in its sole purpose to stimulate erotic response. It is preoccupied with and concentrates on sex organs for the purpose of sexual stimulation. It emphasizes them and focuses on them in varying ways calculated to incite sexual desire.

“Art and pornography are distinguished as follows: True art conveys a thought, a speculation, or a perception about the human condition. Pornography is the pictures of sex organs and their usage devoid of all other meaning-the personality having no place. They bear in upon one a sense of increasing ugliness and degradation of the human being.” City of Youngstown v. DeLoreto, 19 Ohio App.2d 267 (1969).

Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience. Pornography has been regulated by the legal standards that govern the concept of obscenity which refers to things society may consider disgusting, foul, or immoral, and may include material that is blasphemous. Pornography is limited to the erotic content of books, magazines, films, and recordings depicting sexual behavior and may not be obscene. Adding obscenity into the equation has done nothing but make the entire issued “clear as mud”.

In 1957, in a case of “first impression” the Supreme Court attempted to tackle obscenity holding in Roth v. The United States that obscene materials did not enjoy protection under the First Amendment. Citing “community standards, prurient interest and utterly with redeeming social importance” in its definition. Because lower courts were misapplying the definitions laid out in Roth in 1964 the definitions were clarified, saying “community standards” were in fact national standards; resulting in a more liberal standard. The tide changed again in 1973 when a more conservative Supreme Court announced in Miller v. California yet another definition /test for obscenity which employs a three tier test:  

“(a)…[w]hether 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.” 

Holding that “community” standards were once again local or sometimes even rural standards was a conservative swing allowing local juries to say what that particular community found offensive. Which with some minor clarifications still the current standard used to determine what is or isn’t obscene. And unfortunately adding to this confusion is a Court created “middle” category where materials could be found to be “indecent” and therefore protected speech under the First Amendment; which can be an important difference since “obscene” speech / acts are afforded no protection under the First Amendment.

Perhaps Justice Potter Stewart was on the right track when he said of obscene or “hard-core” pornographic materials that “…[I] know it when I see it”. Unfortunately this definition and the current definition / test make the decision of what is or is not obscene depend entirely on where one resides and how conservative or liberal their community standards are.