The Slippery Nature of Obscenity
Obscenity law is one of my favorite things to teach. Yes, in part, this may be because I enjoy scandalizing students with stories of obscenity battles. But it illustrates nicely the danger of censorship. Obscenity was once used to prohibit significant works of literature because the dominant part of society, or maybe just the loudest piece of it, felt the books were too scandalous. Kevin Birmingham’s The Most Dangerous Book, tracking the odyssey of James Joyce’s Ulysses, is a fun trip through early Twentieth Century censorship. The Supreme Court spent 16 years in the middle of the Twentieth Century wrestling over a definition for obscenity that would protect legitimate (an obviously loaded term) artistic expression while allowing society to punish smut. In Miller v. California (1973) it settled on a test. While unfulfilling to advocates of an unrestricted marketplace of ideas, Miller was a huge improvement over the days when scandalous literature could be criminalized easily. Miller also linked obscenity to local community values and given the modern statistics around porn consumption, it is so unlikely that a jury will convict producers of hardcore porn that charges are not even brought anymore. The idea of punishing literature of any kind is unthinkable today.
Despite the fact that obscenity charges have been substantially eliminated, claims about obscenity in schools and libraries are surprisingly common. The number of people who accuse Toni Morrison’s The Bluest Eye of being pornography is surprising. And this is not solely a matter of ignorance of the law. For example, in a school library challenge to Eleanor & Park by Rainbow Rowell, the challenger reproduced Federal Communications Commission standards on profanity, with a citation to the leading case on the subject F.C.C. v. Pacifica (1978), and the MPAA standards for film ratings to argue that the book was unsuitable. It is difficult to believe that the challenger engaged in this much research but never looked up the legal standard for obscenity. Yet the only mention of obscenity is a dictionary definition of pornography. Challengers find content morally repugnant and assume that their personal understanding demonstrates the obscenity of the material. One of the best examples of this occurred in Maine in early 2019.
State Representative Amy Arata became upset when her son was assigned Kafka on the Shore by Haruki Murakami. She read it and was appalled by some of the content, in particular a rape scene. In response to my FOI request, the superintendent told me that she had not submitted a formal challenge and that the book was still available. The book was so dangerous that Arata apparently felt that charges should be leveled against any teacher who assigned such a book and the administrators who approved it. After all, Maine punishes dissemination of obscene material to minors. As required by the Supreme Court, the state adopts the Miller standard for defining what counts as obscene. Material is obscene when it
(1) To the average individual, applying contemporary community standards, with respect to what is suitable material for minors, considered as a whole, appeals to the prurient interests;
(2) Depicts or describes, in a patently offensive manner, ultimate sexual acts, excretory functions, masturbation or lewd exhibition of the genitals; and
(3) Considered as a whole, lacks serious literary, artistic, political or scientific value.
The problem for Arata is that Maine law specifically exempts any “noncommercial distribution or exhibition for purely educational purposes by any … public school.” So she proposed a law to eliminate this exemption and subject teachers to felony charges. There are many problems with this from a free speech perspective but the simplest problem is that even if Arata’s change was successful, Kafka on the Shore is not legally obscene. While she may see the book as filthy because of excerpts, the Miller standard adheres to the speech protective requirement that the work be judged as a whole, mentioned in both (1) and (3) above. This requirement was adopted precisely to avoid the problem seen in Maine: people pulling an element of a book out as proof that it is too dangerous for public consumption. Books must be judged based upon their whole, dominant theme and not just isolated passages. Given the widespread critical praise, it seems unlikely that a case can be made that it lacks serious literary and artistic value or that it appeals to the prurient interest in sex.
Luckily this argument will not be put to the test because the legislative committee assigned to consider the bill refused to recommend it. Members expressed concern with the idea of bringing criminal charges against teachers for assigning books. Most amazingly, given that her proposal was to amend the law specifically to allow felony charges, Arata said “[i]t was never my intent to have anybody go to jail.” Oddly, this is probably true. After all, it is unlikely that any piece of literature would be found obscene today. Convictions were not the goal. Such laws are used to scare teachers away from controversy. If you have reason to fear criminal charges that will require money and time to defend, loss of reputation, and possible dismissal from your job, you’re going to shy away from books that a vocal minority may object to. Free speech law refers to this fear and self-censorship as a chilling effect. Teachers will defer to the vocal minority in their community and only assign literature that the minority feel is “real” or “classical” literature. Of course, this minority could simply exempt their students and request another assignment, but their goal is to control not only the academic decisions of teachers but the decisions of parents who see value in their children studying controversial material. Such parents obviously need help in being better parents and Rep. Arata wants to provide it.