Nudity, Obscenity and Pornography: the Streetcars Named Lust and Desire

The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1988 Nudity, Obscenity and Pornography: The Streetcars Named Lust and Desire George P. Smith II The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation George P. Smith, II, Nudity, Obscenity and Pornography: The Streetcars Named Lust and Desire, 4 J. CONTEMP. HEALTH L. & 155 (1988). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. NUDITY, OBSCENITY AND PORNOGRAPHY: THE STREETCARS NAMED LUST AND DESIRE George P. Smith H* "One would be foolish to deny the relevance of moral perceptions to law. Society's moral beliefs necessarily affect its constitutional perceptions in general and its perceptions of what economic rights are protected by the constitution in particular." Scalia, Mo- rality, Pragmatism and the Legal Order, 9 HARV. J. L. & PUB. POL'Y 123 (1986). .... suppression of the obscene persists because it tells us something about ourselves that some of us, at least, would prefer not to know. It threatens... to destroy the carefully-spun social web holding sexuality in its place. In any case the desire to preserve that web by shutting out the thoughts and impressions that challenge it cannot be squared with a constitutional commit- ment to openness of mind. L. TRIBE, AMERICAN CONSTITU- TIONAL LAW 669-70 (1978). "I know, and am persuaded by the Lord Jesus, that there is nothing unclean in itself; but to him that esteemeth anything to be unclean, to him it is unclean." ROMANS XIV, 14. Today, sex is packaged in every and all ways possible-from the gleeful banterings of Dr. Ruth Westheimer's about "Good Sex,"' through flagrant displays of revealing undergarments now worn as outer garments by such teen role models as Cyndi Lauper and Madonna,2 tightly contoured and sug- gestive Calvin Klein jeans,3 on television,4 cable,5 the movie screen, 6 videos," * B.S., J.D., Indiana University; LL.M., Columbia University; Professor of Law, Catho- lic University of America. 1. Mano, Good Sex!, PEOPLE MAG., April 15, 1985, at 109. 2. The NBC's network morning program, TODAY, devoted a segment of its July 25, 1985, program to this phenomena. See Hubbard, When Underwear Looks This Good, It's Gotta Be La Perla Lingere, PEOPLE MAG., Feb. 1, 1988, at 71. 3. The Bum's Rush in Advertising, TIME, Dec. 1, 1980, at 95. 4. Shales, Prime Time and The Play of All Flesh, WASH. POST TV GUIDE, Nov. 11-17, 1979, at 3. 5. Clark, Cableporn, AM. FILM, Mar., 1982, at 57. 6. K. TURAN, S. ZITO, SINEMA (1974). 156 Journalof Contemporary Health Law and Policy [Vol. 4:155 and in suburban boutiques.8 No holds barred sensualism and extempore eroticism become the focal points for advertising and nudity-and its various degrees-an all too often erotic cue for lust. First, one part of the female (or male) body is uncovered and found erotic; and then another part is dis- covered, creating what has been referred to as "shifting erogenous zones." 9 Living for the moment's prevailing passion' ° and for hedonistic plea- sure--considered the sole object of desire-" threatens to be overwhelming for many.' 2 Packaging sex, in all its various products, is big business. In New York City, for example, the marketing of sex as an industry is a signifi- cant part of the City's economy and a lucrative tourist attraction as well.' 3 Not only does it generate business dollars and tax revenues, it employs a 5 large number of people. " Sadly, one person's vulgarity is another's lyric. ' Western society has, over the years, sought to develop various standards to suppress the viewing and commercial dissemination of explicit materials.' 6 The dilemma, however, remains. As much as dilemmas cry for reso- lution, being what they are, they resist it. '" This is especially the case here as the quest for a "decent society" is forever balanced against the right of free expression with the first amendment,' 8 always being viewed as proscribing common sense' 9 by those who seek its protection. In 1986, Maine became the first state in the Nation to conduct a referen- dum on whether pornography should be restricted. More specifically, the question on the ballot asked: "Do you want to make it a crime to make, sell, 7. Leo, Romantic Porn in the Boudoir: The VCR Revolution Produces X-rated Filmsfor Women (Men), TIME, Mar. 30, 1987, at 63. 8. Leo, Stomping and Whomping Galore: Sadomasochism Comes Out of the Closet- Whips, Chains and All, TIME, May 4, 1981, at 73. 9. Lurie, Sex and Fashion, N.Y. REV. OF BOOKS, Oct. 22, 1981, at 38. 10. C. LASCH, THE CULTURE OF NARCISSISM (1979). 11. A. EDEL, ETHICAL JUDGMENT 93 (1955). 12. McCarthy, Sex, Morals and The Teen-Ager of The '80s, Wash. Post, Oct. 26, 1980, at G5, col. 1. See Morrow, The Fascinationof Decadence, TIME, Sept. 10, 1979, at 85. But see Morrow, Changing the Signals of Passion, TIME, Jan. 13, 1986, at 74. 13. Serrin, Opponents of FlourishingSex Industry Hindered by Its Open Public Acceptance, N.Y. Times, Feb. 10, 1981, at B6, col. 1. 14. See Currin & Showers, Regulation of Pornography-TheNorth CarolinaApproach, 21 WAKE FOREST L. REV. 263, 279 n.24 (1986); Stachell, The Big Business of Selling Smut, PARADE MAG., Aug. 19, 1979, at 4. 15. Cohen v. California, 403 U.S. 15, 25 (1971). 16. See generally W. KENDRICK, THE SECRET MUSEUM: PORNOGRAPHY IN MODERN CULTURE (1987). 17. Shapiro, Introduction to The Issue: Some Dilemmas of BiotechnologicalResearch, 51 So. CAL. L. REV. 987 (1978). 18. Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C.J., dissenting). 19. Will, Sex as Tabasco Sauce, in THE MORNING AFTER: AMERICAN SUCCESSES AND EXCESSES 1981-86, 20 (1986). 1988] A Streetcar Named Lust give for value or otherwise promote obscene material in Maine."2 The re- sults revealed, by a two to one majority, that the residents of Maine did not want any restrictions placed on their right to enjoy obscene material.21 This outcome should come as no surprise; for although a 1986 Harris poll found forty-one percent of Americans support "reasonable censorship" of obscene or pornographic materials, thirty-five percent opposed censorship and twenty-four percent expressed ambivalence, or a "we-don't-think-it-matters" attitude.22 If, as the Surgeon General of the United States concludes, pornography is "blatantly antihuman" and poses a clear and present danger to the health of America,2" what should be done to prevent human sexuality from descend- ing to the level of starkness or that "of animals other than man?",24 Modern society's ongoing debate about pornography and obscenity focuses upon two primary themes or questions: the nature of the relationship between that which is considered obscene and that taken as pornographic and the standards used to delineate and judge these two; and the relationship between the words and images of pornography-in the broad context-with violence against women (or, stated otherwise, as pornography the theory and rape the practice), male attitudes toward women generally, child abuse, and specifically consumer desensitization where the culture accepts violence against women as routine.25 These two dynamic themes present a background for analysis of the mod- em dilemma of society in dealing with obscenity and pornography, and specifically the need to preserve a decent, moralistic society while guaranteeing a free right of expression, dissent and moral independence. Although labo- ratory studies reveal violent pornography may very well promote aggression toward women, the integrity of these conclusions in unstructured social situ- ations is yet to be established.26 While some caution must obviously be taken in imposing blanket restrictions on pornography, on the issue of child pornography there can be no hesitancy in eradicating its dissemination and 20. A Porn Ban Fails in Maine, NEWSWEEK, June 23, 1986, at 33. 21. Id. 22. Lucas, Do We Still Care About Dirty Words?, Indianapolis Star, Oct. 11, 1987, at HI, col. 1. 23. Koop Renounces Pornography, Wash. Post, Sept. 12, 1986, at A17, col. 1. 24. G. WILL, THE PURSUIT OF HAPPINESS AND OTHER SOBERING THOUGHTS 81 (1978). 25. Kimmel, Pornography and Its Discontents, PSYCHOLOGY TODAY, Feb. 1988, at 74. See generally A. SIMPSON, PORNOGRAPHY AND POLITICS (1983); A. DWORKIN, PORNOGRA- PHY: MEN POSSESSING WOMEN (1981); K. BARRY, FEMALE SEXUAL SLAVERY (1981). 26. E. DONNERSTEIN, D. LINZ & S. PENROD, THE QUESTION OF PORNOGRAPHY: RE- SEARCH FINDINGS AND POLICY IMPLICATIONS 98 (1987). 158 Journalof Contemporary Health Law and Policy [Vol. 4:155 use. The benchmark for ultimate decision making in this area of concern must forever be the standard of reasonableness that, in turn, dictates a case- by-case balancing of individual freedom of expression against the societal right to decency and moral integrity. I. NUDITY: YESTERDAY, TODAY AND TOMORROW Insofar as recorded history is concerned, the concept of nudity belongs to the ancient Greeks and their participation in athletic competitions.27 Those who competed in stadia did so entirely in the nude and thereby freed them- selves of cumbersome garments during their competitions. Body freedom, then, was a tolerable activity for the sportsman.

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