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"'Grey' exposes why obscenity laws should be repealed"

on Friday, 20 February 2015. Posted in Front Page Headline, Media Updates

OC Register

BY ERWIN CHEMERINSKY

The phenomenal success of “Fifty Shades of Grey” – as a book and now as a movie – should provide the impetus to finally repeal federal and state laws that prohibit obscene material. It is long overdue for the Supreme Court to reverse its decisions holding that obscenity is unprotected speech.

 

There is no doubt that, through much of American history, those who published and sold “Fifty Shades of Grey” would have faced obscenity prosecutions. The many sexually explicit passages in the books (which I have read) are far more graphic than those in works by D.H. Lawrence, James Joyce and Henry Miller that were the basis of successful obscenity prosecutions. The movie (which I have not yet seen) is R-rated and, inevitably, less explicit than the books, but still would not have been allowed through much of the 20th century.

 

Attitudes toward depictions of sex obviously have changed since the 1950s and 1960s, when television and movies had married couples shown sleeping in twin beds. The “Fifty Shades of Grey” trilogy has sold an astounding 100 million copies, and the movie had a record-setting opening weekend of over $90 million.

 

Federal law continues to prohibit the interstate shipment of obscene materials, and from time to time, especially when there are Republican presidents and attorneys general, there are obscenity prosecutions. For example, in 2005, the George W. Bush administration created the Obscenity Prosecution Task Force, which launched a number of prosecutions. During the Reagan administration, the Meese Commission on pornography urged aggressive enforcement of anti-obscenity laws, and many prosecutions resulted. Virtually every state has a law prohibiting obscenity and these, too, continue to be enforced sometimes.

 

In 1957, in Roth v. United States, the Supreme Court held that obscenity is speech that is not protected by the First Amendment, and thus its sale and distribution can be constitutionally punished. Roth never has been overturned and was subsequently reaffirmed by the Supreme Court.

 

Roth was wrong for many reasons. First, there is no evidence that obscene material causes any social harms. Many studies have been done by social psychologists, and, while some suggest a correlation between exposure to violent material and anti-social behavior, none indicates that exposure to sexually explicit material causes harms.

 

Violence, though, is speech fully protected by the First Amendment.

 

Second, it is impossible to define “obscenity.” In Roth, the court said that obscenity is material that appeals to the “prurient interest.” According to the dictionary, “prurient” means arousing lustful or lascivious thoughts. “Fifty Shades of Grey” does this, but so do writings and films that are far less sexually explicit.

 

Perhaps the most famous admission of an inability to define obscenity was when Justice Potter Stewart declared that he could not definite obscenity, “but I know it when I see it.” ...

 

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