A Brief History
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A Brief History of Smut Censorship

In 1970, U.S President Richard Nixon warned of a nation on the brink. “Pornography,” he wrote in response to a controversial government report on obscenity, “can corrupt a society and a civilization.” Nearly 50 years later later — despite limited scientific conclusions about the industry’s ills — government officials are still trying to shelter the public from smut’s depravity. Last week, Utah State Senator Todd Weiler (pictured above) proposed a bill that would allow individuals to sue porn producers for emotional and psychological harm. “It's just basically a message to the pornography industry that if someone in Utah can prove damages from the product, that they may be held liable financially," Weiler told Utah’s KSL. "I'm looking at where we can push the envelope as a state of Utah." Indeed, the effort to bring porn purveyors to civil court is a creative attack on a controversial, but largely lawful, industry. Porn may be indecent — and at times, ugly, violent and oppressive — but it is, for the most part, protected under the First Amendment. That, however, hasn’t stopped the industry’s many detractors — Senator Weiler only the latest — from trying to undermine it.

It’s hard to pinpoint the first salvo in America’s porn wars, but some may say it came with the publication of “Fanny Hill” in 1749. Originally titled “Memoirs of a Woman of Pleasure,” the erotic novel had caused a stir when it was released in Britain; its author, John Cleland, and publisher were both jailed immediately upon publication. Decades later, in 1821, two Americans were taken to court after printing the book in what was the first obscenity trial in the United States.

The definition of obscene material, long outlawed in the United States, would come to inform much of the debate around censorship. In 1957, the Supreme Court upheld the conviction of smut publisher Samuel Roth. The ruling affirmed that obscenity fell outside of First Amendment protections, but also that "sex and obscenity are not synonymous." Sixteen years later, in Miller v. California, the Court further distinguished between obscenity and explicit content. The new ruling required material to be, among other things, “patently offensive,” to be denied constitutional protection. As Justice William Rehnquist would write in a decision a year later, “nudity alone is not enough to make material legally obscene under the Miller standards.” (That benchmark remains intact today — with one key exception. In 1982, the Supreme Court upheld the conviction of a New York man who sold films of young boys masturbating. The decision established that obscenity was not required for states to regulate child pornography.)

Soon after, officials tried a different tact. In 1983 California prosecutors charged Harold Freeman, a porn producer and director, with, essentially, pimping. His conviction was ultimately overturned by the state’s Supreme Court which saw the charge as a “somewhat transparent attempt at an ‘’end run’ around the First Amendment and the state obscenity laws.”

The emergence of the internet re-energized the censorship battle. In 1996, Congress passed the Communications Decency Act, which sought to shield minors from access to "indecent" material on the web. The bill, however, was quickly struck down after a challenge by the American Civil Liberties Union.

Utah’s proposed legislation may soon invite similar First Amendment challenges. Yet even if it’s enshrined, the state law alone won’t safeguard against the societal decline that Nixon feared. Utahns, according to the popular site Pornhub, are among the most infrequent viewers of pornography in the country.

Photo Credit: Creative Commons

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