The Myth Of Obscenity
As a professional erotic and art nude photographer, I conduct workshops on best practices in the erotic arts all over the United States. At every one of them, some participant inevitably asks me a variation of the same question: “What is the difference between nude art photography and pornography?” No one ever anticipates my answer: lighting.
This reply usually draws a few laughs, but my response is more than a joke. The question (even if the questioner is unaware) has its roots in a time-worn discourse about forced binaries between art and pornography, expertise and emptiness, and above all, decency and obscenity. Within this binary framework, defining what is obscene can be even more daunting than defining what is art — and the answer inevitably dictates which forms of expression are kept hidden in the dark.
When it comes to sexual expression in words, images, and performance, community standards erect an elusive boundary between what is acceptable and what is not. Expressions determined to be on the wrong side of this boundary are shunned, labeled by society as “abnormal”, “unusual”, and historically (as has been detailed elsewhere here at QM), “queer” — and while LGBT experiences and behaviors certainly comprise a sizeable portion of this stigmatized group, the umbrella also encompasses polyamory, BDSM, swinging, group sex, fetishes, full-service sex work, exotic dancing, peep shows, and many other forms of sexual expression. In all cases, these community standards tend to place collective notions of morality over an individual’s right to freedom, unequally restricting the sexual expression of members from these groups.
Because technological advances and cultural movements often give rise to new forms of sexual expression, social determinations of acceptability are frequently made in response to them. Consequently, tensions between those who seek to maintain existing social norms and those who push for greater individual freedoms have occurred throughout history. Laws and regulations defining obscenity are often written to restrict expressions of sexuality. In response, those whose expressions are restricted tend to push for greater freedom. Though far from linear, this process has resulted in the continued evolution of community standards, generally moving the moral center of the majority in an increasingly permissive (albeit uneven) direction.
In the United States, this shift becomes evident whenever there is a major push forward for individual civil and sexual rights, which are often marked by periods of renewed legislation and the reordering of control in response. Over the last 150 years, the three waves of feminism have served as a clear frame through which to illuminate this process. By tracing the history of feminism in the United States, the line between “appropriate” and “abhorrent” is revealed as undeniably fluid, its placement always moving to align with whatever is socially acceptable at that particular moment in time. First-wave feminism in America, which began in the mid-1800s and lasted into the early 20th century, focused on self-autonomy and expression for women, especially around work, education, and voting rights. Women’s demands for greater freedom during this period (which eventually secured them the right to vote through the 19th Amendment in 1920) were met with opposition on many fronts. Although it was not then the focus of feminist efforts, legislation aimed at restricting sexual expression was part of the conservative social response, nevertheless.
The United States government made its first effort to regulate sexual expression in 1873 with the Comstock Act, which legislated the exchange of information and materials related to sex. The act criminalized the sharing of sexual content, products, and educational subject matter associated with abortion and contraception — but it applied to any and all “obscene,” “lewd,” and “lascivious” material sent through the national postal service or across state lines. This move to restrict the sexual freedom of Americans was motivated by the religious revivalism of the 19th century in reaction to what was then branded as a “moral decay” of public life (i.e., alcoholism, tobacco use, prostitution, and pornography).
These laws largely focused on what today would be considered extremely mild and mainstream forms of sexual expression, including those in Thomas Edison’s 19-second film The Kiss (1896) and James Joyce’s novel Ulysses (1922). The Comstock Act, however, set in motion a cycle that would ultimately repeat itself. Cultural and technological waves (often in tandem) pushed people to seek greater sexual expression and freedom and were in turn met by an opposing force driving others to defend collective “security” and comfort. Each time, the line between “decency” and “obscenity” would be nudged a bit further, though (thus far, at least) never fully resolving to protect sexual expression itself.
The second wave of feminism began to take shape in the early 1960s and lasted through the 1980s. Like the first, second-wave feminism pursued women’s equality, though in this case, it shifted focus from their political status to their standing within society. Body autonomy and financial independence were two of the most prominent areas of struggle during this period, which culminated in legislative and legal victories on the topics of equal pay and the right to access birth control and abortion.
Second-wave feminism also saw major cultural breakthroughs in sexual expression, taking place in tandem with triumphs within other social campaigns, such as the effort to end racial and sexual discrimination through the Civil Rights Movement and what was then called the Gay Rights Movement. Prior to 1962, sodomy was a felony in every state, and until the Supreme Court’s 1967 decision in Loving v. Virginia, many states also defined interracial marriage as illegal. It was in this era of social transformation that Erica Jong published her 1973 novel Fear of Flying, which was highly controversial for its depictions of female sexuality. The American film Deep Throat, released one year earlier in 1972, was similarly remarkable in its focus on the sexual pleasure of a female protagonist, and today is widely credited with launching the Golden Age of Porn.
In response to these social developments, a new wave of laws and definitions of obscenity attempted to sway the boundaries of sexual expression. The most important of these efforts was the Supreme Court case Miller v. California in 1973, which introduced what became known as the "Miller Test” and redefined the legal definition of obscenity. Much like the Comstock Act, the three-part Miller Test included a reference to “community standard” as well as an assessment of a work’s appeal to the prurient interests of the consumer. But the Miller Test’s definition of an obscene work shifted from one "utterly without socially redeeming value" (as defined in the Comstock Act) to one lacking "serious literary, artistic, political, or scientific value.” Thus, while this case helped to pave the way for a rise in the production and distribution of contemporary mainstream pornography in the United States, its deference to community standards ensured that the definition of obscenity was still to be dictated by the center majority.
The 1990s ushered in a third feminist wave, which was again marked by social transformation. The focus during this period shifted to the empowerment of female sexuality, seeking to better address diversity among women by considering the effects of such factors as race, ethnicity, etc. on individual experience. Attitudes toward sex, sexual expression, and the consumption of sexual content also began to shift rapidly, leaning more toward an open and accepting view of a broader range of behaviors and preferences.
The shift in public attitude toward pornography is particularly illustrative of this trend. With the rise of the digital age, porn has become ubiquitous. Today, 40 million Americans are reported to visit porn websites regularly. More than just expanding access, technology has facilitated the expansion of sexual expressions online. Fetish and BDSM practices, hentai, exhibitionism, BBW porn, trans porn, adult cosplay — content depicting these and many other formerly taboo sexual expressions has become readily available with a few clicks of a mouse.
Still, the line of acceptability mediating such expressions of sexuality is dependent on social norms. Even as society becomes more open in its attitudes, the struggle between collective security/comfort and personal freedom persists. The most visible evidence of this ongoing tension is the recent passage of two bills collectively known as SESTA-FOSTA, which stands for “Stop Enabling Sex Traffickers Act” and “Allow States and Victims to Fight Online Sex Trafficking Act” respectively. The expressed intent of this legislation was to stop sex trafficking, especially involving minors, but thanks to its broad language — which encompasses consensual forms of sexual expression and commerce — myriad adult sex workers have experienced harm. The result has been a struggle between these consensual sex workers (along with their allies and supporters) and those who oppose sex work of any kind, all while recent studies show the bills may have actually damaged the ability of law enforcement to find and arrest traffickers and abusers.
These recent conflicts over the legislation of sexual morality seem to underscore the observation that societal efforts to define what is obscene are truly about defining what is shameful. As the adult landscape becomes ever more diverse, open, and free of shame, I dare say queerness thrives. This is thanks to those who have pushed back against stigma, champions of sexual freedom who have shifted society forward and forced the focus on comfort and security to reorganize itself around a new “normal.” It is unlikely the struggle will ever be fully resolved, but in the end, freedom always gains ground.
This brings us back to the original question about what is (or isn’t) art. A student once responded to my quip about the line between art and pornography by asking “How much lighting?” to which I responded, “That’s like asking how much love.” No matter how “decent” or “obscene”, the value of the work comes down to the value experienced by the artist in creating it and the value experienced by the viewer in consuming it. There is no line, no boundary separating what has value and what does not. It can be both, or neither. Like queerness itself, it all comes down to you.
Published Sep 30, 2020
Updated Jan 25, 2024
Published in Issue VIII: Art
