On Tyranny And Television: The Mainstreaming Of Pornography

Jameson Taylor
Reproduced with Permission


"Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for the one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow.


In This Article...
Toss The TV
The Sexual Revolution
Keep It In The Closet


"In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next.… And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self deception has grown too heavy…."

The quote above is taken from a sociological survey conducted by Milton Mayer titled, They Thought They Were Free: The Germans, 1938-45. Though the Third Reich is long gone, one should pay close attention to this account of how to corrupt a free people. The most effective forms of tyranny are barely perceptible; often, they seem benign. That's why revolutions are so rare, and even more rarely, successful.

While it's unclear how many Hollywood producers have read Mayer's book, not even Joseph Goebbels could have more cleverly brought about the vitiation of an entire people's moral sensibilities. Step by step, we have grown accustomed to leisurely stepping over the excreta expelled by the television set into our homes. (Careful! -- misstep and more than your shoes will be soiled.) At first, surely, you complained to your friends and neighbors, perhaps, even considered writing a letter to someone. That was 30 years ago. Things are different now: ABC's "NYPD Blue" is showing frontal nudity; CBS' "Judging Amy" recently came oh so close to showing male genitalia; and Fox's "Boston Public" is (sex) -- educating kids about "breast-only orgasms." Meanwhile, on America's number one show, NBC's "Friends," newlyweds Monica and Chandler are watching porn together for St. Valentine's Day. Scandalized? I doubt it. The mainstreaming of pornography is a fait accompli.

What are we to do? To begin with, you might try throwing your television away. If you weren't shocked before, maybe you are now. Not that pulling the plug on your television is going to convince anyone in Los Angeles to stop making porn. You should stop watching television -- or, at the very least, fast from TV for 40 days -- in order to reawaken your moral sense, your innate, God-given ability to distinguish right from wrong. After all, if we can't reverse the decline of American culture, we can certainly take responsibility for maintaining the purity of our own minds, bodies and homes. After 40 days, plug your television back in and reflect on what you see.

You will notice things seem to be worse. This is because your sense of decency has begun to recover. It is also because things have actually worsened. Given our current situation, this gradual decay of what the Supreme Court calls "community standards" is inevitable. Once they have been stimulated, the body politic's appetites are very difficult to reign in. The Greek philosopher Plato describes our predicament when he compares the souls of the foolish to sieves or leaky buckets that can never be filled. As long as Hollywood persists in trying to satisfy the addiction for sex and violence it has created, the audience's need for more sex and violence will only increase. In the industry, this phenomenon is known as "pushing the envelope." Pushing the envelope explains why the networks are getting racier, why companies like AT&T, GM and AOL Time Warner are distributing porn via their cable and internet operations and why consumers of "soft" porn eventually get bored and turn to "hard" porn and even child porn.

The only alternative to such slavery is moderation and self-control. The problem, however, is that modern society is founded upon a rejection of the virtue of moderation. To make a long story short, several hundred years ago certain thinkers began to question the utility of self-control. As if overnight, unlimited desire, especially the desire to acquire material things, was transformed into a virtue. Unlimited desire, properly channeled, came to be regarded as the key to human progress and happiness. As a result, politics became the science of constructing systems of social control and economics was reduced to the process of equalizing competing wants. To mention a mundane example: many economists today subscribe to the notion that consumer spending drives economic growth. In the short-term, everyone seems to benefit. What happens, though, when the debts are called in?

Our debts are being called in. We are morally bankrupt -- all the more so because so few of us recognize it. Such indulgence, especially in a democracy, inevitably leads to tyranny. Plato describes the consequences of this decline: "They [the citizens of the democracy] end up by paying no attention to the laws, written or unwritten, in order that they may avoid having any master at all. …Too much freedom seems to change into nothing but too much slavery, both for the private man and city. …[T]hen, tyranny is probably established out of no other regime than democracy, I suppose—the greatest and most savage slavery out of the extreme of freedom."

The Sexual Revolution

Most Americans are now enslaved to their television sets, not to mention their cable boxes, VCRs and internet connections. The irony, of course, is that this tyranny was established in the name of freedom -- the right to free speech as guaranteed by the First Amendment. Obscenity, however, does not and never has enjoyed First Amendment Protection. Pornography, in other words, is already illegal.

What happened? It all began in the 50s when the Supreme Court for the first time specifically considered whether obscenity is protected under the First or 14th amendments. Prior to this, the court had good reason for assuming obscenity was illegal. When the Constitution was passed in 1792, 13 of 14 states punished profanity and/or blasphemy as statutory crimes. A 1712 Massachusetts law, for example, criminalized the publication of "any filthy, obscene, or profane song, pamphlet, libel or mock sermon." Spurred on by Anthony Comstock in the late 19th century, 30 states prohibited the dissemination of obscene materials, and by 1956 the federal government had enacted 20 separate obscenity laws.

Until 1957, the Supreme Court defined obscenity according to the "Hicklin test" -- from an 1868 case, Regina v. Hicklin. In Hicklin, the court determined material was obscene if it had "the tendency…to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." With some modification, this ruling stood until Butler v. Michigan (1957), when the court stated that obscenity should be judged according to the sensibilities of "the adult population," rather than "only what is fit for children." It was not until Roth v. U.S. (1957) that the court would attempt a more precise definition of what was suitable for adults.

On its surface, Roth seemed to confirm existing constitutional law. The court ruled that "obscenity is not within the area of constitutionally protected speech or press." Explicitly reversing Hicklin, the court decreed, "The standard for judging obscenity…is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." In apparent deference to the First Amendment, however, the justices added that the offending material had to be "utterly without redeeming social importance." "Turned around," observes pro-porn attorney Clyde DeWitt, "…Roth erected a remarkable barrier to prosecution. …In a criminal prosecution, the jury must resolve vague issues of community standards and must acquit upon a reasonable doubt as to whether the materials were utterly without redeeming social importance. …Publishers had a defense that never existed."

In reality, the court redefined the First Amendment to allow for all but the most graphic forms of pornography. The justices would eventually reverse Roth, but the damage had already been done. The decision prepared the way for the sexual revolution, culminating in the legalization of contraception in 1965 and abortion in January of 1973. DeWitt comments on the deluge that followed Roth: "The uncertainty of obscenity law coupled with the social circumstances of the Baby Boomers' protest mode, the pill and sexual revolution propelled the most rapid change in erotic expression since the invention of the printing press, evolving in a single decade from battles over passages in novels to the trials resulting in the acquittals of Deep Throat and comparable fare."

In 1973, the justices established the "Miller test," derived from Miller v. California (1973), which explicitly rejected Roth's contention that obscenity had to be "utterly without redeeming social value." Miller posited instead that obscenity "taken as a whole, lacks serious literary, artistic, political or scientific value." The community standards test was retained and expanded to include depictions of "patently offensive" sexual conduct. The Miller test is still in force today and the Supreme Court has affirmed that it can be used to prosecute pornography however and wherever it may appear, including "offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or stimulated," as they might appear in books, magazines, films, videos and/or the internet. This not only means Deep Throat et al. is probably illegal, but such popular shows as HBO's Emmy-award winning "Sex in the City," Howard Stern and MTV's "Undressed" may be as well.

Armed with Miller, the Justice Department went after pornographers with a vengeance during the late 80s and early 90s. Bruce Taylor, who was with the Justice Department from 1989 to 1994, discusses the effect: "We [the Justice Department] got 130 convictions…$25 million in fines and forfeiture, and convicted most of the kingpins of the pornography industry at least once….The department was very effective in toning down the kind of material you saw because they were indicting the big shots….So that put the fear of the law back into the industry until maybe 1994-1995, when the prosecutions pretty much stopped." Why? Bill Clinton and Janet Reno "didn't let the [Justice Department] continue with the projects with the mainstream hardcore porn industry." As former Attorney General Reno put it, the decision to stop prosecuting porn was a matter of establishing "priorities."

Keep It In The Closet

George W. Bush has promised to reinvigorate the Justice Department's prosecution of obscenity. But Bush's appointments to the Federal Communications Commission (FCC) -- in particular, Chairman Michael "my religion is the market" Powell -- suggest the President has no intention of doing anything about broadcast obscenity and indecency. Similarly, while Attorney General John Ashcroft is to be praised for going after child pornographers, it remains to be seen whether the current Justice Department realizes the contemporary explosion of child pornography is being fed by the mainstreaming of obscene and indecent content on the internet, television and radio.

In conclusion, the time has come for the Supreme Court to reexamine its definition of obscenity. To begin with, the court needs to account for how advances in technology have fundamentally altered the nature of pornography. Photographic and video depictions of real people having real sex unquestionably do not enjoy First Amendment protection.

Pornography is not only offensive because of the ideas or images it contains, but because it's production requires offensive -- and illegal -- conduct. Such depictions entail the prostitution of the women and men who are being filmed and should be prosecuted accordingly. Second, the court should abandon its attempt to identify obscenity by the community standards test. How is this community to be defined? In the privacy of their own homes, Americans can now view almost any content they want from anywhere in the world via the internet and satellite and cable television.

Obviously, a market for such material exists. Such markets create their own communities with their own standards -- some of which are antithetical to free government. More importantly, we do not determine the scope of other amendments -- the Second Amendment, for example -- by deferring to community standards and should not do so here. The philosophy inherent to the U.S. Constitution judges right and wrong not on the basis of majority opinion, but in reference to universally rational principles. Surely, these same truths can be used by Congress and local governments to explicitly determine what is obscene. Until things change, keep your television in the closet.

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