Have you ever been describing a night out with friends or a date and omitted a few details depending on who you were talking to? Not because you yourself were ashamed of what happened, but because you knew that person would not be comfortable hearing the details of the night. This comfort threshold, held differently by each and every person, is the main reason why legislation on obscenity has always been complicated.
Chief Justice Burger, delivering the opinion of the court in Miller v. California – a case in which a mass-mailing campaign had sent sexually explicit and obscene photographic materials to different residences across Newport Beach, CA – stated that “to this day, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power… This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression.”
In situations like Miller – where people are shown pornography, especially print pornography, against their will, there is a clear argument for obscenity. But if the mailed pieces had been for a new Botticelli exhibit at the museum; the “Birth of Venus” plastered across the cover – there would be no argument. Nudity, something some may deem obscene, is protected by the First Amendment if it is a part of art, literature or science. Cases of obscenity (with the exception of images of minors) need to be broken down and considered one by one – that’s what makes them unique from other cases. What were the intentions? Who was affected? Where was this distributed, and is it reasonable to say that the wrong people (that is, children and other vulnerable populations) were unfairly subject to it? In an ideal world, the courts would approach other criminal cases with a similar set of questions. But there are too many cases; too little time; and vacations to be taken by judges and their families.
It’s easy to look back and say that the justices of the 20th century were dealing with a close-minded population, and were close-minded themselves (although, not close-minded enough to shy away from watching porn together…) Justice Burger said himself, “I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity.” And the good thing for him – because it’s really not in the hands of the government anymore! With so many private organizations controlling the media we receive – social media sites like Facebook and Instagram, Twitter and Tumblr; or streaming sites like Netflix and HBOGo – there’s barely any need for the government to regulate these things. The “staff” at these different companies have written out strict (or in the case of Twitter, lax…) obscenity regulations. You can watch soft core pornography in a Netflix series; “like” a photo of a practically-nude model on Instagram, but if you post a nipple – consider your photo taken down, no trial proceedings; no First Amendment protections. One has to ask – what happens when these organizations decide to place regulations on other things; on speech; on expression? Who will judge?