Macalester College DigitalCommons@Macalester College Political Science Honors Projects Political Science Department Spring 5-1-2012 Deciphering a Duality: Understanding Conflicting Standards in Sex & Violence Censorship in U.S. Obscenity Law Rushabh P. Bhakta Macalester College, [email protected] Follow this and additional works at: http://digitalcommons.macalester.edu/poli_honors Part of the American Politics Commons, Constitutional Law Commons, Gender and Sexuality Commons, Jurisprudence Commons, Law and Gender Commons, Law and Politics Commons, Politics and Social Change Commons, Sexuality and the Law Commons, Social Control, Law, Crime, and Deviance Commons, and the Sociology of Culture Commons Recommended Citation Bhakta, Rushabh P., "Deciphering a Duality: Understanding Conflicting Standards in Sex & Violence Censorship in U.S. Obscenity Law" (2012). Political Science Honors Projects. Paper 36. http://digitalcommons.macalester.edu/poli_honors/36 This Honors Project is brought to you for free and open access by the Political Science Department at DigitalCommons@Macalester College. It has been accepted for inclusion in Political Science Honors Projects by an authorized administrator of DigitalCommons@Macalester College. For more information, please contact [email protected]. Deciphering a Duality: Understanding Conflicting Standards in Sex & Violence Censorship in U.S. Obscenity Law Submitted May 1, 2012 Rushabh Prakash Bhakta Advised by Professor Patrick Schmidt Department of Political Science Macalester College '12 1 Deciphering a Duality: Understanding Conflicting Standards in Sex & Violence Censorship in U.S. Obscenity Law Honors Colloquium 2011-2012 Abstract This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source. 2 Table of Contents Acknowledgments 3 Introduction – A Liberty Divided 4 Chapter 1 – The Origins of America’s Obsession with Regulating Sex 6 A. Introduction- The Paradigm for Sex as Obscenity 6 B. Transforming Religiosity and Shaping American Christianity 6 C. Race, Gender, and Sexuality – How Concepts of Citizenship Shaped Sex Suppression 12 D. The Comstock Era – The Rise of Victorian Values and the Social Purity Movement 15 E. Conclusion – An Emerging Ethical Identity 20 Chapter 2 – The Development of Sex Censorship 21 A. Introduction- Proliferation and Liberalization 21 B. Charity & Education - The Institutionalization of Protestant Moral Unity 21 C. Immigration and Citizenship’s Evolution – How Sex Became Integral to Identity 26 D. Free Speech in the Face of Temperance – The Failure of Social Purity 32 E. Hicklin to Roth – Establishing and Adapting Sex as Obscenity 38 F. Conclusion – Retaining Tradition, Acknowledging Progress 41 Chapter 3 – Sexual Obscenity and the Contemporary Era 42 A. Introduction – Revolution and Reaction 42 B. Entering the Modern Debate – Sexual Proliferation and the Reactionary Response 42 C. Jacobellis to Miller – Developing Modern Obscenity 46 D. Conclusion – The Right to Censor 50 Chapter 4 – The Origins of America’s Relationship with Violence 51 A. Introduction - The Paradigm for Violence as Obscenity 51 B. The Role of Violence in America’s Ethical Origins 51 C. A Mission of Morality – Curbing Criminality and Mischief 55 D. Conclusion – Deconstructing “Legitimacy” in Violence 60 Chapter 5 – The Development of Violence in American Culture 61 A. Introduction - New Media and the Divergence of Violence from Obscenity 61 B. The “Convergence” of Media – The Sidelining and Emergence of Violence Obscenity 61 C. Hicklin to Reno – Violence as Indecency 67 D. Conclusion – Obscenity in the 20th Century 70 Chapter 6 – The Contemporary Debate on Violence Obscenity 71 A. Introduction – Ancient Standards, Modern Society 71 B. Stevens & Brown - Confronting Over a Hundred Years of Precedent 71 C. Reconciling the Roles of Violence and Sexuality 75 D. Conclusion – Censorship and the Ideological Preservation of America Itself 79 Conclusion – Deciphering a Duality 80 3 Acknowledgments I would first like to express my deep gratitude to Professor Patrick Schmidt, my honors advisor. He provided vital insight and direction which guided my research in substantive ways. Without the long hours he spent editing and analyzing my work, I would not have been able to succeed in finishing my project. Furthermore, I would like to thank both Professors Terry Boychuk and Zornitsa Keremidchieva for introducing me to many of the authors and theories I studied in preparation for my thesis. Another invaluable source of expertise and constructive critique was my Honors Colloquium which consisted of Professor Julie Dolan and my honors peers Matthew Mullarky, Jisoo Hong, and Kaitlin Roh. Finally, I’d also like to thank my close friends Kyle Serafin, Logan Sand, Nicholas Pernsteiner, Mason Wells, Robert Strickling, and Jackson Robbins for all of their emotional and moral support throughout the year. The efforts of all of these individuals were paramount to the completion of my research. 4 Introduction – A Liberty Divided In his wake there exists only chaos, violent carnage so visceral and palpable that it blurs the ever thinning line between entertainment and war. Whether it is explicit torture or gratuitously stylized executions, his craftsmanship in cruelty is only limited by the imagination and audacity of the individual willingly commanding his every exploit. “He” is James Earl Cash, the fictional protagonist of the controversial 2003 video game entitled Manhunt, and the “individual” is any man, woman, or child in the US with access to interactive new media. However, such seemingly uninhibited proliferation of violent speech is not a global phenomenon. Just across the pond and north of America’s borders, this title is either highly restricted and regulated or banned all together due to its legally obscene content.1 Conversely, these other regions enjoy day/nighttime television programming like Skins, a serial drama with frequent and graphic depictions of teen sex and nudity marketed to youth demographics. Skins garnered critical acclaim and commercial success in Britain, but, when a heavily edited adaption of the show arrived in the US, it met immediate resistance and a hasty demise. Though the remake was censored specifically for sex, nudity, adolescent promiscuity and sexual language, it was regarded by many as morally repugnant and accused of portraying child pornography and legal obscenity. Due to the rapid loss of commercial sponsors and impending legal challenges, the show was quickly cancelled and taken off the air.2 Neither of these events represents an isolated event or solitary example of inverse obscenity interpretation, rather they are merely small pieces of a much greater pattern spanning centuries of culture and law. The pattern of obscenity censorship in the US is uniquely different from all other western nation states, particularly Canada, New Zealand, Australia and most of 1 Smith, Tony. "Australia bans Manhunt." Register. 30 Sep 2004: n. page. 2 Szalai, Georg. "PTC Calls MTV's 'Skins' the 'Most Dangerous Show for Teens'." Hollywood Reporter. 12 Jan 2011: n. page. 5 Europe. While these other states interpret obscenity law to enable censorship of violent speech quite severely, they often provide much more freedom to sexual speech than the US does. Furthermore, the US fails to acknowledge violent speech as categorically susceptible to obscenity law. This often overlooked predicament came to national attention recently with the case of Brown v. EMA (2011) where the question of violence as legal obscenity was assessed with regard to violence in video games. The Supreme Court found that violent video games represented legitimate speech protected by the First Amendment and not vulnerable to suppression or strict regulation by the government as obscenity. This controversial ruling reignited the legal, political and public debate regarding the discrepancy between sexuality and violence censorship standards and prompted my research question: Why does U.S. obscenity law focus on censoring sexual speech while virtually ignoring violent speech? In my paper, I argue that a family of forces consisting of faith, economy, and identity, created during early American history and integrated throughout it, has solidified sexual speech as a threat to society while enabling violent speech to exist. Furthermore, a decentralization of violence as a cultural commodity simultaneously helped institute violent speech as a form of expression that represented no threat to the public welfare. I argue the validity of these assertions by first analyzing sexual speech by dividing it into three sections of its development in the US: origins, development, and contemporary. I then compare this analysis to violent speech’s parallel development with the same sections. Throughout these six chapters I will employ the use of historical, socio-cultural, political, and judicial evidence in tandem in order to articulate the