Pornography, Obscenity, & Indecency

A discussion earlier this week on the American Dialect Society email list demonstrated that even among linguists and lexicographers there is confusion and uncertainty over the legal status of pornography in America and what exactly constitutes hardcore and softcore pornography. Additionally, some other words are thrown into the fray. What exactly is obscenity and is it legal? And what about indecency and profanity.

While erotic imagery and writing is a practice dating back into antiquity, pornography is a relatively new word, dating only to the latter half of the 19th century. It is a modern formulation from the Greek ?????, prostitute, + ??????, writing.

Determining exactly what constitutes pornography is difficult. It is a word that has defied precise definition. Perhaps the most famous definition is given by U.S. Supreme Court Justice Potter Stewart in his concurrence with the court’s decision in Jacobellis v. Ohio (1964). Writing about whether a particular film constituted hardcore pornography, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

In 1986 the Attorney General’s Commission on Pornography, a.k.a. The Meese Commission, issued a highly controversial report on the topic. Whatever flaws exist in that report, and there are many, the report does include a very succinct and apt definition of pornography. That commission defined it as:

Material [that] is predominantly sexually explicit and intended primarily for the purpose of sexual arousal.

If one attempts to use this definition to determine whether or not a particular work constitutes pornography, one will run into the "I know it when I see it" problem that bedeviled Justice Stewart. But as a general definition this is as good as any.

Pornography is often subdivided into hardcore and softcore material. This use of hardcore dates to at least 1959 when it appears in Ernst & Schwartz’s Censorship:

A work of literature…stands on quite a different footing from hard core pornography.

The term hard core dates to the mid-19th century and originally referred to the interior of a structure, road, or foundation consisting of gravel and other rough refuse material. By the early 20th century, it was being used to refer to something that was tough and intractible, as in this citation from the 12 September 1936 issue of Nature:

Possibly 200,000 would be practically unemployable on any ordinary basis–the "hard core" as it is called.

The use of hardcore to mean harsh or aggressive postdates the pornography sense, appearing in the 1970s.

Softcore pornography appears a bit later that its hardcore complement. From the New York Times of 25 September 1966:

The soft-core pornography of advertisements like "Have you had any lately?"

There are various descriptions and definitions of exactly what constitutes hardcore v. softcore porn. None of them are universally accepted and what one person might consider softcore another might deem hardcore and vice versa. The determination is in the eye of the beholder. About the only universal is that softcore material is less explicit than hardcore.

As far as the legal status of pornography goes, there seems to be just as much confusion as there is in the definition. As far as law in the United States goes, pornography is irrelevant. The law is not concerned with pornography, at least so long as it features and is distributed to adults only. What the law is concerned with is obscenity, indecency, and profane material.

The English adjective obscene dates to the late 16th century. It’s taken from the Middle French obscène and ultimately is from the Latin obscenus, meaning ill-omened, filthy, or disgusting.

According to U.S. law, obscene material or speech is not protected by the First Amendment and it may be prohibited outright by the government. What exactly constitutes obscenity? Unlike Stewart’s "I know it when I see it" doctrine, the definition of obscenity in U.S. law is fairly clear, albeit still open to some interpretation. The operating standard was penned by Chief Justice Warren Burger in his majority opinion in Miller v. California (1973). Burger proposed a three-pronged test for obscenity:

(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.

What this means is that, at least as far as the law is concerned, individual words, phrases, or passages cannot be declared to be obscene. The work must be considered as a whole. Therefore, a novel that uses a certain four-letter word or contains some erotic passages, like D.H. Lawrence’s Lady Chatterley’s Lover to name one that is famous for having been censored for both these reasons, cannot be considered obscene.

The Supreme Court has ruled that obscene material can be banned. Obscene speech and writing is not protected by the First Amendment and can be utterly prohibited by the federal and state governments. This is not the case with indecent or profane material. These are protected by the First Amendment, but can be limited, but not banned, by the government.

The operative legal standard for indecency is FCC v. Pacifica (1978), a Supreme Court case about the broadcast of comedian George Carlin’s "Seven Dirty Words" routine by a radio station. The Federal Communications Commission (FCC), which regulates use of the broadcast spectrum, fined the station, which appealed the decision to the courts. Justice Stevens writing for the majority determined:

Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. […] Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. It is a characteristic of speech such as this that both its capacity to offend and its "social value," to use Mr. Justice Murphy’s term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion’s lyric is another’s vulgarity.
In this case it is undisputed that the content of Pacifica’s broadcast was "vulgar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission’s action was constitutionally permissible.

The court ruled that this particular broadcast, because it was in the middle of the afternoon when children were likely to be listening and because of other conditions, could be restricted by the FCC. But that it might be permissible to air the offending monologue at another time or in another context and that the indecent words could not be completely banished from the airwaves in all contexts.

To comply with this ruling, the FCC has defined indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Note that unlike the obscenity definition offered by the court, this definition does not require the work be taken as whole. Particular words and phrases can be indecent in certain contexts.

The FCC also limits the broadcast of profanity. It defines profanity as "language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

The FCC does not permit the airing of indecent or profane material between the hours of 6 a.m. and 10 p.m. And note that the FCC only regulates over-the-air broadcasts. It has no jurisdiction over cable or satellite television or other privately transmitted mediums. These mediums can broadcast indecent or profane material with impunity–although obscene material can still be prohibited on them.

The US Postal Service has similar rules governing the inclusion of indecent material on postcards or on the exterior of envelopes and packages. Mailing indecent material inside a nondescript package is perfectly legal.

So there you have it. The complete scoop on exactly what types of offensive speech are legal in the United States and in what contexts.

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