How the Government Lost Its War on Erotica
A little more than 100 years ago, a New Haven, Conn., dry-goods-store clerk named Anthony Comstock decided, as he wrote in an 1882 article for the North American Review, that "there was a very large and systematic business, of the most nefarious character, carried on to corrupt and destroy the morals of the young." He became a "special agent" in the office of the Postmaster General, working under the authority of the obscenity law that would become unofficially known by his name.
For the next half-century, Comstock terrorized purveyors of an astonishingly wide variety of sexually oriented materials. The Comstock Law cast a wide net, declaring, in part, that
. . . no obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or the procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or of whom, or by what means with of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal-card upon which indecent or scurrilous epithets may be written or printed, shall be carried in the mail.
Comstock pursued this broad mandate with puritanical zeal and nigh-extralegal authority, leaving a string of suicides and bankruptcies in his wake.
A century later, federal and state agents working under the authority of Reagan-era Attorney General Edwin Meese's National Obscenity Enforcement Unit (NOEU) raided Adam & Eve, a Hillsborough, N.C.-based company that sells contraceptives, sex toys, and adult videos by mail. The company's owner, Philip Harvey, recently published a book about the eight-year legal battle with the Justice Department that followed this raid. The Government V. Erotica: The Siege of Adam & Eve warns us that Comstockery is alive and well. In the end, however, Harvey's overwhelming legal and economic success reveals how much has changed in the century between the enactment of the Comstock Law, under which almost anything could be declared obscene, and the case of Miller v. California, a 1973 judgment by the Supreme Court that established the standards under which virtually nothing sent through the mails can be declared obscene.
Though Harvey tries hard to represent the Department of Justice as a puritanical Goliath bearing down on his libertarian David, it is clear from reading other accounts of the government's war on porn that NOEU was a desperate rearguard action from the start. It was organized to refute President Lyndon Johnson's earlier Commission on Pornography and Obscenity; the Johnson commission's findings, released in 1970, determined that there was no evidence connecting pornography to criminal behavior, and that there was no legally effective definition of obscenity. The report concluded by recommending that "federal, state, and local legislation prohibiting the sale, exhibition, or distribution of sexual materials to consenting adults be repealed."
Thus a green light was given for what historian Walter Kendrick, in his groundbreaking 1987 study The Secret Museum: Pornography in Modern Culture, calls the "post-pornographic era." The pornographic film industry went legitimate, enjoying a decade-long golden age that produced such classics as Deep Throat, The Devil in Miss Jones, Behind the Green Door, and The Opening of Misty Beethoven. For a brief period, porn was simply one cinematic genre among many, and feature-length narrative films incorporating explicit sex acts--always punctuated by the ejaculatory "money shot" that became de rigeur in this era--could be viewed by anyone in any major city in America.
This halcyon era was cut short by the coming of the VCR. The two principal functions of porn--to facilitate male masturbation and to educate swinging couples--were ill-served by public viewings; video serves those aims almost perfectly. Porn became a mainstream, multibillion-dollar industry, addressed to women as well as men. In fact, women were becoming not only consumers but also producers of porn (the formation and success of Candida Royale's Femme Productions in the mid-'70s was much ballyhooed at the time).
It is far from incidental that the dawn of the "post-pornographic era" coincided with the rise of second-wave feminism. Both phenomena made Americans rethink the way they discussed and practiced sex. The two cultural movements have not been the most compatible partners, however. Feminism has been violently divided by the subject of porn. On the one hand, a strident school of anti-porn feminism emerged around writer/activist Robin Morgan's famous claim that "pornography is the theory, rape is the practice." Feminist theorist Andrea Dworkin, a former sex worker, asserted in her incendiary writings that heterosexual intercourse by its very nature represents a male assertion of power. For these feminists, porn is simply one of the more graphic expressions of this power relation.
On the other side is a school of "anti-censorship" feminism, which holds that pornography is one of the few cinematic genres in which female sexual pleasure is explored, even celebrated, without being punished. (As Harvey notes in The Government V. Erotica, violence and sexuality are far more entangled in mainstream film genres.) Academic feminists such as Laura Kipnis and Linda Williams argue that pornography is considerably more complex than its moralistic detractors are willing to concede. Both scholars suggest that porn might serve a purpose beyond helping the viewer get off--it offers him or her imaginary solutions to real sexuality problems. Both have helped establish porn as a legitimate new field of intellectual discussion and debate.
The genre's increasing legitimacy is partly the legacy of historical entanglements between pornography and the avant-garde. Although porn and art rarely overlap explicitly, they have been strange bedfellows for an entire century of legislative battles over obscenity. Each victory for one has been a victory for the other, until the '70s, when the Supreme Court basically gave up on defining or restricting obscenity and the two fields began to converge in the work of contemporary performance artists such as Karen Finley and Annie Sprinkle.
Pornography and the avant-garde both explore arenas of sexual transgression and forbidden desires, but their audiences diverge considerably. If the avant-garde addresses an educated elite, the stereotype of the hard-core porn lover would be an unsophisticated blue-collar male. There's little proof propping up this image, but controlling pornography has long been about keeping it out of specific hands--once corruptible young women, now ignorant and potentially violent men. Scholars such as Kipnis and Williams, then, are trying to bridge this class divide, implicitly arguing that the acceptance of pornography is simply the extension of American democratic values into the realm of sexuality.
And this sexual freedom is actually less about expression than it is about access. If, as Kendrick claims in The Secret Museum, "Comstock at bottom feared nothing so much as the universal distribution of information," then the Internet is the realization of this fear, a sort of consumerist utopia in which every possible predilection can be satisfied by anyone with access to a computer and a credit card. The Web is the true postmodern home of porn, handily segmented by orifice, ethnicity, and age. It represents the ultimate "pornotopia," a sexual-fantasy realm unrestricted by the canons of taste or the regulation of the state. (It has goosed pornography's economic explosion in recent years; in a May New York Times Magazine article on the state of porn, writer Frank Rich reported that, with industry revenues estimated to be at least $10 billion annually, Americans are now spending more money on porn than they do on "all the performing arts combined.")
Of course, Adam & Eve has its own Web site, offering "sexy and secure shopping for cheerfully consenting adults." Adameve.com, where you can buy everything from edible underwear to X-rated videos, reveals how closely knit sexuality and shopping have always been in American culture; pornography, here, is as much about capitalism as it is about democracy. Thus The Government V. Erotica, the second item featured under the heading "sexy new stuff," is advertised as the story of how Harvey both "became a champion of free speech" and created "the catalog you hold in your hands." It somewhat awkwardly, though nevertheless appropriately, appears between "newcommer" Tera Patrick's video of "cock-rockin' fellatio" and a Pleasure Realistic Dong with "sensually ridged head and heart-stopping veins to his big balls." How's that for a libertarian vision: a public sphere where fellatio, free speech, and a "lifelike dong" can occupy the same conceptual space, for the benefit of "cheerfully consenting adults."