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Pornography and the Law
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20068 |
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Section : |
MODERN THOUGHT
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Date : |
12 / 1992 |
7,219 Words |
| Author
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H. Robert Showers
H. Roberts Showers is president of the National Law Center
for Children and Families, a nonprofit group that focuses on
legal issues in child sexual exploitation and illegal
pornography. In the Reagan administration, he oversaw all
federal child exploitation and obscenity efforts. In 1984-85,
he was chairman of the North Carolina Law Enforcement
Subcommittee on Obscenity, Organized Crime, and Child Abuse
and was primary author of North Carolina's comprehensive
antipornography law, under which the state virtually rid
itself of porn outlets. |
Contrary to popular belief, obscenity--commonly called hard-core pornography--and child pornography have never been considered protected speech under either English common law or the U.S. Constitution. In fact, the criminality of obscenity and the public policy behind this criminal ban dares back to Henry VIII's Star Chamber court.
Based on early common law, sexually explicit material and public obscenities were prosecuted in the king's court when they related to "political sedition" and in the ecclesiastical courts when they related to issues of "religious heresy." The advent of democratic ideas, the decreasing influence of the king and church, and the increasing power of the English Parliament in the eighteenth and nineteenth centuries gradually changed the basis of prosecution of pornographic publications. As early as 1663, sexual lewdness, as opposed to sedition or blasphemy, was punished as a crime in the famous case of King v. Sedley. This case concerned Sir Charles Sedley, who became drunk, removed his clothes on the balcony of a London tavern, and, while giving a profane speech, poured bottles filled with urine upon the audience below.
By the 1700s, the theoretical basis for obscenity prosecutions had evolved from sedition and heresy to pornography's harmful effect upon an ordered democratic society and the damage it causes to the individual and to the moral fiver of the community. The first case that may be credited with the establishment of obscenity as a basis for an independent common law crime against the state was Dominux Rex v. Curl 93 Eng. Rep.849 (1727). In this case, the Queen's Bench convicted and fined Edmund Curl, a London book publisher, for obscene libel (an old legal terms for printed obscene material) for publishing Venus in the Cloister, or the Nun in Her Smock, which dealt explicitly with lesbian love in the convent.
As early as 1711, the American colonies followed England in making sexual indecency and obscene libel a crime. In fact, twelve out of the thirteen original states had such criminal obscene libel laws at the time the Constitution was written and passed. Given this backdrop, it is understandable why the U.S. Supreme Court in Roth v. United States (1957) concluded: "There is sufficiently contemporaneous evidence to show that obscenity . . . was outside the protection intended for speech and press at the time during which the First Amendment was written."
By examining the speeches of America's Founding Fathers, one can find no evidence that they considered obscenity to be a form of
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