While most people have an understanding of what “pornography” is, I want to take a moment to define it.
According to Webster’s Dictionary online, the two definitions most relevant to this article are as follows:
1) the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement; and
2) material (as books or a photograph) that depicts erotic behavior and is intended to cause sexual excitement.
Pornography comes in as many different combinations and types as there are human sexual fantasies and fetishes. The purpose of this article is not to discuss all of those types or to advocate that one is better or more appropriate than another. Instead, my intention is to discuss how “pornography” or “obscenity” has played a historic role in free speech, one of the underpinnings of the United States Constitution.
Supporters of censoring pornography do not typically factor into the equation what suggestions like that have on the role of free speech in this country. In fact, they rarely get beyond the moral or religious argument as their primary basis for eliminating pornography. While I understand the religious argument that can be made, I do not believe that is an appropriate use of legislation… afterall, we also have the separation of church and state issue to concern ourselves with. However, laws to eliminate or restrict the accessibility of pornography and similarly situated policies have historically created truly far-reaching, almost ‘evil’ laws in our history. Without a close watch on similar topics, the same could reoccur today.
An early federal anti-obscenity statute, known as the Comstock law, was passed in 1873 and became the model for a number of state laws. These laws were used for decades to persecute and sometimes destroy early feminists and others who wrote about birth control, venereal disease, or sexual exploitation and even sexual exploration. Further, these laws were the basis for excluding sexual education classes from public schools. It even went so far as to censor scientific, physiological, and anatomical works in many publications.
This extensive suppression of knowledge occurred because the government, in its alleged wisdom, considered information about contraceptives and sexuality to be “obscene.” Because of the government’s position on those subjects, lower income women often suffered, and an excessive number of unwanted pregnancies often ruined their health, drove them to dangerous and sometimes deadly back-alley abortionists.
But governmental censors were more offended by contraceptives and sexuality than by the suffering and death of women. So they prosecuted thousands of people under the “obscenity” laws and drove at least 15 women to suicide. I have no information on how many were convicted, incarcerated, or otherwise punished because of these judgmental laws.
Among them was Ida Craddock, who was imprisoned in 1902 for writing advice manuals on conjugal relations. She continued writing after her release from prison, was arrested again under the Comstock laws, and chose to commit suicide rather than serve a second prison term. Can you imagine a world today where someone goes to prison for writing something they believe in or publicizing information that they want to make available?
The famous birth-control pioneer Margaret Sanger dedicated her life to that movement because of the horrors she had witnessed as an obstetrical nurse in New York. The atrocities included women’s health being destroyed from bearing too many children, women dying from botched abortions, families rendered unable to feed their many members, and the spread of venereal disease. Sanger’s crusade to make contraceptives available to the poor and others caused her to be jailed repeatedly under the Comstock laws. On one occasion, she faced the possibility of spending 45 years in prison.
Fortunately for the health of millions, the government’s persecution did not intimidate her into silence. While awaiting trial, she courageously published everything she knew about birth control in a pamphlet titled “Family Limitation.” It sold 10 million copies and was translated into 13 languages.
Many other women activists were victims of the censors. David A. J. Richards writes that “no group suffered more from censorship under America’s federal and state obscenity laws than dissident American women, [who were] challenging the dominant pro-natalist gender and sexual orthodoxy of their age.”
One group that may have suffered almost as much were critics of traditional religion. Susan Jacoby relates: “As free-thought publications proliferated in the 1880s and 1890s, prosecutions of their editors became more frequent, lending additional support to [the] contention that the anti-obscenity statutes were being used to target atheists, agnostics, and freethinkers.”
Similar censorship problems have occurred in other countries. Materials that governments banned as being “pornographic” included pro-Jewish writings in Nazi Germany, anticommunist tracts in China and the former Soviet Union, and literature written by blacks in South Africa. These are not the only examples of the suppression of free speech, and I believe there are probably other examples out there, but I have not done the research to locate them for this article.
Even today, some in the U.S. would use laws against pornography to censor any number of progressive ideas they find threatening. For example, the Rev. Donald Wildmon, head of the right-wing, American Family Association, supports censorship of pornography. His group’s literature defines pornography as “not dirty words and dirty pictures. It is a philosophy of life which seeks to remove the influence of Christians and Christianity from our society.”
Thus, anything that conflicts with Wildmon’s religious beliefs would apparently be considered pornography and be fair game for governmental censors under the limitations proposed by the American Family Association. That type of attitude is a reason why laws against pornography are so dangerous. The laws can lead to efforts to silence virtually any minority viewpoint.
As American Civil Liberties Union president Nadine Strossen writes in her book Defending Pornography: “Even in societies that generally respect human rights, including free speech, . . . the term ‘pornography’ tends to be used as an epithet to stigmatize expression that is politically or socially unpopular. Accordingly, the freedom to produce or consume anything called ‘pornography’ is an essential aspect of the freedom to defy prevailing political and social mores.” But, as the Founders of this country understood and wrote, the freedom to defy prevailing political and social attitudes and beliefs is essential for progress and enlightenment to occur. Just think, if the Founders had not stood up for what they believed in and put it in writing, would the United States exist today or would we merely be another colony of the United Kingdom?
To assure the freedom to possess, write, purchase, photograph, or record information and speech, be it pornography or something else, the Founders assured this country of that right in the First Amendment to the U.S. Constitution. We must protect what we cherish else we may lose it. Be alert and aware of those you vote for and question anything, including my position in this article, afterall, this is a form of free speech in itself.
Dax Garvin, Attorney and Counselor At law is an experienced Austin DWI Attorney.
I graduated from Texas Tech University School of Law in May, 2002, and was licensed to practice law in Texas that November, following the July, 2002, Texas Bar Exam. Prior to that, I obtained my Bachelor of Science in Criminal Justice from the University of Texas at Tyler and my first years of undergraduate work were spent at Austin College in Sherman, Texas, where I learned the true passion of humanity-recognizing we are all part of one great society.
I worked in the Travis County Attorney’s Office from August, 2002, until October, 2003, when I entered into private practice with a mid-size Austin civil litigation firm, where I enhanced my skills for legal research, writing, motion practice, and working with insurance companies from the defense perspective.
http://www.daxlegal.com
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