Sheesh! I have the night free before the next final. If people don't know how law school works, you get one grade per class: the final exam. So if you screw that up, you're done for. That's why it's necessary to just disappear and study. Anyway, because it's on my mind, and because I have a couple minutes to say some things, I want to quote something from Brown v. Entertainment Merchants Association, the not-that-but-sort-of-famous violent video games case. In determining whether the sale of violent video games can be proscribed, the Court says:
Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct."If it isn't clear, there are a few exceptions to First Amendment protection: obscenity, fighting words, defamation (sometimes), advocacy of illegal conduct, and child pornography (though digital child pornography can be possessed). That is, these types of "speech" are considered unprotected by the First Amendment.
Now, I'm actually not an enormous fan of the First Amendment. I think its application is spotty, and the principles around it inconsistent, but it's obviously one of the most interesting parts of the Constitution. My paper, the one I was upset didn't win, was actually about free exercise. What I want to talk about, though, is why this obscenity exception exists.
What needs to be clear is that obscenity, according to the Court, is only depictions of a sexual nature. That is, material that appeals to the "prurient" interests. No matter how disgustingly violent or vile material may be, it is likely still protected. But sexual material is not. (If you're wondering why there's so much porn, it's because in a separate case, the Court determined that you have a free speech right to possess pornography in your own home. I still can't figure out how they got to this, to be honest.) In fact, a case just recently came before the Court about "crush" videos: videos that show animals being brutally tortured and crushed beneath someone's foot. (Genuinely disturbing stuff.) The Court said that because violent depictions of animal torture was not historically considered an exception, it could not be proscribed. The Court is not keen on making new exceptions either. However you feel about this "originalist"-y approach, there it is.
And when I say why, I don't mean historically. I mean deeper than that. I mean why would there even be a history. There's always this narrative that unreasonable Victorians (or Puritans or whatever boogey man) had a ridiculously unhealthy view of sex in such a way that it ruined it for everyone that came later. That if they knew what we know now back then, we'd be FREE. Quotes like the one above are no doubt rallying cries for people who believe in free love and everything else. "WHY IS VIOLENCE OKAY BUT SEX ISN'T! AMERICANS ARE OBSESSED WITH SEX!" etc. There's jokes about it all the time. Of course, even if one accepts the premise that such a person is right, that depictions of violence are really very bad and worse than depictions of sex, it wouldn't follow that depictions of sex aren't bad as well. But that's a different issue.
But even taking that as true, that early religious people had a strange obsession with sex and deemed it evil so they ultimately proscribed it and refused to protect it, etc. it doesn't really answer my question. Why would they even get to the point that they would want to do this. And you can't say "religion" because that doesn't really answer the question either. That just takes the "history" answer one step further. Things don't just happen. There has to be something in people that made the history the way it is. History is not accidental.
Of course these same people who yell about unreasonable moral rules, etc. etc. when they are young are often the same people who would be willing to shield children from sex (for some reason "children" are just the ultimate argument-winner. If it affects children in any way, conversation over) and follow the status quo when they "grow up." They usually, when it all comes down to it, want traditional monogamous marriages in one way or another. They want "love" and all the rest of it. (Often, no doubt, and not to be too Freudian, they seem to push the whole "free love" thing just to justify their bad behaviors.)
I used to believe, when I subscribed to a much more mind-body split view, that a person's soul was able to discern good and bad things in an almost supernatural way. That the body (and arousal and pheromones and everything else) got in the way of seeing reality. That we always historically are uncomfortable with images of sexuality because we were able to really see (because of our souls) how important it was, and that at the end of the day, if everyone were honest, they would see that pornography was bad.
While I don't subscribe to this anymore (the mind-body thing; I still think pornography is very, very bad) and am much more likely to recognize the reality that "I" am not some thing trapped in a body, I think there's some truth to the conclusions of my previous view. I think we are naturally very uncomfortable, at least on average, with sexual images. Now, obviously we derive a great deal of pleasure from looking at sexual images, and that's not what I mean. I mean that I think we know, for whatever reason, that there is something different about them than, say, a violent image. While we may actually have a more extreme response to the violent image, we know, in whatever way, that the violent image really isn't as dangerous. We have aversion to violence. We know we're not going to fall into a world of endless violence where we're trying to fill a void. It's that we have both desire and aversion to sexual images that really gets to us. There's something in the average, healthy person that recognizes the seriousness and fragility of sex and sexuality.
I understand why obscenity was not extended protection. (Though I'm sure you could make the argument that the people of the past had never seen crush videos and would absolutely consider them unprotected, but I'm not convinced that this is what's going on.) Today, while our culture has nominally abandoned this standard (outside of like don't show porno to babies or walk around naked), I think, at a very deep level, culture still subscribes to the view that obscenity (as in sexual obscenity) really is not a good thing, not a thing worth protecting. I think this is also the reason we, rightly, keep pornography secret and shameful. Even without appeals to natural law and everything else, we have trouble just tossing these feelings of discomfort away. And people who have tossed them away have to spend their whole lives trying to do so, often failing completely. In other words, I think that the libertine is an anomaly, and that people, without being able to articulate why, know that he is a strange perversion.