Since we live in an ostensibly free country and pride ourselves on the efficiency of our marketplace., we should expect America to produce a dazzling variety of erotic art.

Instead, America produces an amazingly narrow range of erotic art and almost all of it is egregious trash. It fails as art. It fails as entertainment. Half the time it even fails as pornography.

An American supermarket offers a reliable snapshot of what Americans like to eat. Does anyone believe that an American adult film store offers a reliable snapshot of our tastes in erotica?

I hope not! If we assume the supply of erotic art is actually meeting the full demand then we are left to conclude that Americans are irredeemable morons. Even accepting that America is not suffering a moron shortage, I don't find it plausible that everybody is a perverted philistine.

Even in the best of worlds 90% of erotica is going to be pretty wretched stuff. Our current system serves the wretched end of the market brilliantly. No one can suggest there's a shortage of low-end erotica. But where is the 10% that's not wretched? Where is the inventive, aesthetic, accomplished erotica?

It doesn't exist, primarily because the government subsidizes wretched pornography at the direct expense of anything better.

When a market doesn't match supply to demand the usual culprit is government interference in the marketplace, so that's a good place to start. So the first question we need to ask is: Is there anything unusual about government regulation of erotic images?

**DING**DING**DING** That sure didn't take long!

Erotic content is the only subject matter censored in America. The government lacks all power to suppress any other kind of content or image. (Except classified State secrets, of course.)

Seriously... you can make a film of a woman having her fingers chopped off with an axe and it is absolutely sanctioned as long as she is wearing pants. Unless you can see her vulva the film is beyond legal reproach. (The odd thing is that I have seen vulvas in real life without undue trauma. I have, thankfully, never seen anyone's fingers chopped off, and if I did I would surely be traumatized.)

"Obscenity" is the only class of works involving consenting adults that is subject to censorship. The Supreme Court established thirty-five years ago that no non-sexual work can possibly be considered obscene. The case involved the Mike Nichols film Carnal Knowledge. The Court specified that it was irrelevant whether a jury said Carnal Knowledge was obscene because no work can be obscene without spread vulvas or erect penises.

So there we are... images of genitals are the ultimate special case, subject to forms of regulation that, as a matter of law, cannot possibly apply to any other subject matter. (For the finicky, that statement is a little overbroad, insofar as erotic images involving minors have a lower standard. All arguments herein apply to "consenting adults" standards; material made by consenting adults for other adults to choose to view. So these arguments do not apply to child pornography, nude billboards, pornographic mass mailings or what can be shown on broadcast television. Nor do they apply to slander, disclosure of state secrets, etc..)

Since the erotica market is uniquely defective and also uniquely subject to government regulation it seems likely there's a connection

Laws ostensibly meant to regulate the most extreme pornography actually make all pornography more extreme on average while thwarting the development of artistically superior erotic entertainments. Furthermore, laws meant only to regulate pornography have the effect of imposing a set of sexual attitudes on all works, pornographic or not.

In this piece I am advocating a market environment that would permit the natural development of erotic entertainment that is less offensive to the average adult. I certainly do not think ugly pornography should be banned but I see no reason for our government to actively support its development. Our current system encourages ugliness in pornography as surely as our tax code encourages home ownership.

The situation is so perverse that one is left to wonder whether the real anti-pornography agenda is to thwart popular erotica and foster only the basest pornography in hopes of "radicalizing the people" toward support of sweeping bans of all sorts of artworks.

This is an elusive point. The government only prosecutes a handful of obscenity cases in a decade, so how can government policy be responsible for the entirety of the problem? Because the government's assertion of the theoretical right to outlaw movies legitimizes the very concept of censorship, at every level of society.

Imagine if Mormons, and only Mormons, had to vote in public, and those who voted "wrong" could lose their right to vote. Would that have any effect on how non-Mormons view the privacy and sanctity of their own votes?

The average American male owns a gun and spends most of his free time watching TV shows of people shooting each other. I'm pretty much a libertarian, so that doesn't bother me much. But you have to admit it's kind of weird. If the average American male had a dungeon in his house and all the TV shows he watched were about kidnapping women... well, it would seem pretty ominous.

Yet we are, as a nation, not freaked out by the gun thing. Why? Because the government says it is okay. The government regulates both gun ownership and broadcast TV, and the government says says it is okay to own guns and watch murders 24/7.

The government says kids in a car must be in a child safety seat. In today's world a parent without a child safety seat is considered something lower than Hitler, despite the fact that when those same Hitlerian monster-parents were kids they were driven around without child safety seats. I'm middle-aged, so I have never been in a child safety seat in my life. When, however, I see a mother today treating her children the same way my mother (not a particularly Hitlerian figure) treated me I am conditioned to think that mother is a monster.

I am all for child safety seats. It seems like good social policy. But how did not having a child seat become vastly more sinister than owning a bunch of guns or viewing violent crime as entertainment? We cannot pretend that the government reluctantly instituted the child safety seat thing in the face of overwhelming public opinion. At first, some people thought everyone should use child seats and most people had no real opinion. It was only after the seats became mandatory that we became comfortable denouncing those without such seats as monsters.

I have heard any number of alcoholics and prescription tranquilizer junkies brag that they don't do drugs. These people are pathetic drug addicts and a menace to society, yet they think they are temperate. There is no rational basis for a drunk feeling superior to someone who smokes pot. So where does the idea come from? From the government. 100%. Can anyone pretend drunks would feel morally superior to stoners if both drugs were legal or if both drugs were illegal?

So how does this apply to movies?

If a parent told you that violent movies are not harmful to children you would consider that parent insane. EVERYONE KNOWS violent movies are harmful to children. That doesn't mean they should be banned, no more than Twinkies should be banned. But imagine your reaction to a parent who serves Twinkies for dinner.

So we have nearly unanimous opinion that violent movies are bad, but nobody really cares. Citizens groups against movie violence are humored, at best. Retail chains that proclaim themselves "family friendly" carry about as many violent movies as anywhere else. Hollywood embraces levels of extreme violence that are almost transcendentally graphic. Compare the sex in an R-rated romance with the violence in an R rated horror film.

(Hilariously, the v-chip TV ratings have a presumably family-friendly category of violence called, "fantasy violence." Can you imagine a parent saying, "Oh, that's okay for kids. It's just 'fantasy' sex.")

You can assemble all the boycotts and citizens groups and letters to the editor you want and the only concession you will ever win is an agreement to not show the worst violence to children. (As with video game ratings or the aforementioned R-rated horror film.)

No entertainment company will leave money "sitting on the table" over violence because when push comes to shove, the company can say, "If you don't like it, blow it out your ass!" Because it is legal. No matter how far they go, it is legal. The government cannot expand the film-violence laws because there aren't any film-violence to expand. And any new laws along those lines will be struck down immediately in any court in the land.

The law of the land is there can be no censorship unless there are, at least, split beavers and hard-ons!

Now consider the state of sex in entertainment. 90% of the movie theatres in America flatly refuse to show any movie with more than five seconds of "full nudity." Not lascivious gaping crotch shots and men stroking their erections... just nudity; people walking around without pants. The biggest rental chains will not carry such movies. The biggest retail chains will not sell them. TV and basic cable will not air them. Hollywood will not produce them.

Why is that? There is no possibility such movies are illegal. The cannot be, by flat definition. It has been settled US law since the 1960s that mere nudity, absent clearly pornographic and lascivious display of the genitals, cannot be possibly be considered obscene. Simple nudity is every bit as legal as violence.

But 99.9% of all entertainment companies do leave money "sitting on the table" over nudity and sex, because when push comes to shove, the company cannot say, "If you don't like it, blow it out your ass!" Because sex, unlike violence, is not legal. It is USUALLY legal. It is GENERALLY Legal. But the government reserves the power to outlaw sexual content.

The fact that the government claims the power to outlaw sexy movies is a statement that the entire class of "sexy" is presumptively evil. And that presumption informs every decision made by every entertainment company.

Unmade movies

A list of the 100 greatest erotic movie scenes would be all over the map. I doubt more than half of them would be sex scenes per se. There would be scenes of kissing and dancing and gorgeous costumes.

There would be scenes of intense implication like Gloria Graham and Robert Ryan in "Odds Against Tomorrow" or Rhett Butler storming up those stairs with Scarlet in his arms. There  might be scenes of people just looking vivacious, like Lana Turner's bouncy sweater girl promenade in "They Won't Forget. There would be some 'daring' nudity on the list and several explicit sex scenes too. There would be scenes from different genres, decades and continents.

All 100 will have this much in common: they're fortunate to even exist. Each was made in in the face of social forces seeking to thwart its creation.

Censorship debates tend to focus–out of practical necessity–on the suppression of existing works. Burning books is, however, the most trivial manifestation of censorship. Censorship exists to prevent the creation of disfavored works. Books that are burned represent failures of censorship. The censor's victories are the books that are never written in the first place.

For each scene on our hypothetical list of erotic movie moments there are hundreds of equally wonderful scenes that were never made in the first place.

Our special problem

The government has no obligation to subsidize the arts, merely to keep the Hell out of the way. When a society is doing everything else right an art-friendly environment arises naturally. (Government support of the arts is almost as pernicious as governmental suppression of art insofar as both involve the dangerous idea that the government should have any opinion as to what art is good or bad.)

We (Americans) have an excellent "hands-off" intellectual liberty track record, particularly in science and history. Our record in political speech and journalism is imperfect but enviable. But when it comes to art our record is spotty; progressive in some ways but downright backward where sex or nudity are involved.

America has a native weakness for repressive sex-manias. I don't want to suggest that we are uniquely sexually repressive–we're about average. I'm sure Afghanistan and Iran are a lot more sexually repressive but how much pride are we supposed to take in that accomplishment? This is supposed to be America, damn it. Our peculiar Puritanism makes a mockery of our claim to be the free society par excellence.

Free minds and free markets

Our American philosophy holds that regulation is, all things being equal, malignant. Markets are capricious and cruel but they are better than the alternative. Nobody really knows how to micro-manage a complex dynamic system without catastrophe, so  formal regulation should be our last resort.

Historically, movies have been regulated as a first resort. There were calls to censor movies before the average American even knew movies existed. Our native thirst to regulate movies is so unmistakable that Hollywood has spent eighty years censoring its own products in a desperate defensive action to forestall formal governmental censorship of Hollywood movies.

This is a key point: when an artist censors himself because he reasonably fears potential government censorship that is government censorship. Hollywood "self-censors" movies insofar as the old Production Code and current MPAA ratings regime are administered by Hollywood, but those censorship regimes arose out of negotiations, formal and informal, with the government.

Sex, Violence and Perversion

Our generations-long war on smutty movies has over-seen the creation of mountains of aesthetically and emotionally stunted smut. No surprise there! Prohibition degraded the quality of liquor. People didn't stop getting drunk but they were willing to accept bathtub gin that they wouldn't have touched back when there was a higher quality alternative.

Contemporary pornography strike me as perverted. Not perverted in a fetish way, but socially perverted... somehow anti-human. That's a personal perception, not an argument. I mention it, however, because it jibes with this immutable rule:

Censorship fosters perversion.

Always and everywhere. When we drive sex out of the mainstream we guarantee that all sex is, by definition, deviant.

One dramatic and easily documented instance of the effect is the prevalence of violence in adult films. About half of all mid-1960s adult films are violent. All were made in an environment where you could go to prison for showing a pubic hair but the censors had no objection to a topless woman in panties being smacked around... as long as her panties were 100% opaque. (I am talking about the subject matter of made-up stories. The actresses were not actually mistreated any more than John Wayne was involved in real gunfights in his movies.)

When it became okay to show full nudity, in particular explicit shots of female genitalia, adult films became less sadistic overnight. Of course there are individual examples of friendly 1960s nudies and sadistic 1970s pornos but the overall trend is unquestionable.

It seems clear in retrospect that 1960s filmgoers were being conditioned to enjoy sadism as a more socially acceptable proxy for depictions of normal adult consensual sex.

Could that really be what anyone intended? Is it possible that anyone could hate women so much, could be so revolted by womankind, that seeing a sexualized beating produces less anxiety than seeing a woman's vulva? Apparently so. Such people populated Congress, the courts and State censorship boards in the 1960s. Given our ongoing national embrace of violence and rejection of nudity in entertainment there is no reason to think the situation has changed much.

What a world!

Who supports Censorship?

Throughout history the average person has believed that her society was in a unique, unprecedented state of moral collapse.

We grow up within a framework of largely arbitrary social mores. As children we believe those mores represent timeless, absolute standards of virtue because those are the only standards we have ever known. Within the time-frame of childhood social mores are as invariable as gravity.

But social mores are always changing, not through corruption but because that is the nature of social standards. Cultures churn as generation after generation tries to make society distinctly theirs. Hemlines go up, hemlines go down. Teenagers establish their identity through fashions chosen for the purpose of alienating elders. Elites must present a moving target so the underclass will never be able to imitate them perfectly. Snobs change the pronunciation of words, then change them back, just to keep commoners on the wrong foot. And so it goes.

As we grow older society inevitably changes around us. Most of us come to recognize that our childhood view of things was incomplete. Change makes us anxious, but we recognize that change is the natural state of society.

People who are intellectually or emotionally inflexible cling to the idea that the world they perceived as children was virtuous and absolute. From that perspective all social change is not merely uncomfortable, but actually evil.

The censor is a solipsist, projecting his personal inability to cope with society onto the entire world; equating his comfort with cosmic morality.

I do that to some degree. Atomic Cinema is one of the most conservative websites out there. The basic philosophy here is that things were, in fact, better in the old days. Erotic movies from the 1960s and 1970s were superior. Hollywood movies from the 1950s were superior. I believe that those aesthetic judgments are correct, but I know that even if old movies were junk I might  still like them because I grew up with them. I may well be blinded by the perceptions of my youth.

The important thing is not whether old movies were really better, but whether I demand that the government certify my opinions by banning new movies and imprisoning those who make them.

As an American, I cannot possibly make that demand.

God Bless America

The American Constitution is an affront to human nature. The American idea is that fashion and social mores will proceed as they will proceed without government interference.

Most Americans are Christian. If you start a new religion you will be in the minority. Your neighbors might think you are going to Hell. They might not want to belong to the same private clubs. They might not want your kids to play with their kids. They might give you disdainful glances at the supermarket.

And that's all as it should be. Nobody is obliged to like you.

But that is the end of it. Our government is designed to ignore social mores. Our government does not have the power to say you are right or that your neighbors are right. Our government cannot have any opinion whatsoever as to the relative worth of religions. Similarly, our government cannot tell you what you can or cannot read, for whom to vote, what style of clothes to wear, and so forth.

Our founding fathers proposed something different than any previous form of government; different from the societies we had been setting up naturally for millennia.

American life is full of anxiety because we are denied the profound comfort of seeing the government destroy everyone who is different. We do not get validated. When a government walled up the Jews in a ghetto that government was validating the great majority of non-Jews outside the wall. A Christian enjoyed the social status of not being confined to the ghetto, and there is great comfort in that.

The censor wishes the American government to be a God, elevating the righteous and smiting the wicked. Our government was, however, designed with limitations, first and foremost being that the government is a limited, abstract human invention that cannot act as a God.

And there lies the tension. America was designed to be uncomfortable, so many people who are born here reject America, pining for more primitive social structures. They are, morally and intellectually, too weak for America. Living in a free society makes them anxious.

I am sympathetic to everyone filled with fear and frustration by liberty. We all feel it. But our anxiety does not justify the persecution of people with different ideas about society. Their lives are more important than my hysterical anxieties.

The pleasure that arises from imagining your neighbors being arrested as moral inferiors is both natural and disgusting; akin to the thrill of other violent self-validating dominance fantasies. It is, ironically, a pornographic pleasure.

Stupid like a Fox

What can we make of the censorship advocates' persistence in the face of overwhelming evidence that censorship makes society more sex-obsessed and more deviant? That used to make me think them stupid; as if they'd never even heard the phrase "unintended consequence."

But I have come to question whether those consequences are really unintended. When someone does the same thing year after year with the same results we have to entertain the possibility that he desires those results.

I suspect that our anti-smut campaigns and pornography laws have always been meant to accomplish pretty much what they've accomplished. They are meant both to stigmatize sex categorically (probably to foster a universal criminal mentality) and to intimidate the mainstream... a show of cultural force to keep creative people in the mainstream from exploring the vast area between mainstream and porn.

Censorship may well be intended to ensure that depictions of sex be as ugly as possible.

Pornosec

The censor sees control as the ultimate purpose of society and recognizes–perhaps more than anyone–the power of art. Both art and romantic love are personal and peculiarly resistant to government control or co-option. Art about romantic love is a double-threat.

All authoritarian governments strive to create a universal criminal mentality. People who feel they have something to hide are easily controlled.

One excellent way to make every adult human being feel like a sort of criminal is to stigmatize a universal trait like sexual desire.  Sadly, a people afflicted with universal secret shame are quickest to scapegoat others for the same transgressions as a penance, seeking an anxiety reducing absolution of their own guilt.

Censors don't fear rampant ugly smut. Stigmatizing sex is a powerful control mechanism and ugly smut casts sex in the worst possible light. What censors dread is rampant beautiful smut.

(The 1980s crack down on adult films was a reaction to such films becoming too good... too mainstream. The big budget 1970s adult film was transforming into something sufficiently handsome and entertaining that it would no longer frighten the average adult. Once that happened it would be hard to put the cat back in the bag so swift action was needed.)

In fact, if ugly smut vanished tomorrow censors would feel a need to create it.

From George Orwell's 1984 (Emphasis added):

There was a whole chain of separate departments dealing with proletarian literature, music, drama, and entertainment generally. Here were produced rubbishy newspapers containing almost nothing except sport, crime and astrology, sensational five-cent novelettes, films oozing with sex, and sentimental songs which were composed entirely by mechanical means on a special kind of kaleidoscope known as a versificator.

There was even a whole sub-section -- Pornosec, it was called in Newspeak -- engaged in producing the lowest kind of pornography...  for distribution among the proles. It was nicknamed Muck House by the people who worked in it, she remarked. There she had remained for a year, helping to produce booklets in sealed packets with titles like Spanking Stories or One Night in a Girls' School, to be bought furtively by proletarian youths who were under the impression that they were buying something illegal.

History and moral relativism

History is inconvenient for authoritarians.

Censorship thrives on ignorance of social history. It's ironic that an idea usually defended in terms of tradition requires complete ignorance of the past, but here we are. (Unfortunately, emotionally appealing ideas built upon ignorance or faux-knowledge are almost impervious to our most powerful tools for judging ideas. You can't reason a person out of a position he didn't reason himself into in the first place.)

No censorship advocate in America today is willing to publicly defend what his team was up to mere decades ago. Everyone would bust out laughing! History shows us that the censor's targets have frequently been either innocuous or down-right virtuous. [See box below]

If modern pro-censorship arguments are valid then the pro-censorship arguments of past generations must have also been valid. The alternative is to say that our current perceptions are uniquely wise... wiser than past generations and also wiser than all future generations. (No one can dispute that standards shift every year so if our standards today are RIGHT then future people's standards are bound to be wrong.)

If my line of argument seems unfair, it is. I have done the cruelest thing possible by taking pro-censorship arguments at face value.

I am not the one saying censorship is mandated by timeless and divine morality. It is the censor who speaks of timelessness. Every transitory target is presented as a threat the foundation of our very civilization... a transgression of fundamental and eternal values.

The free-speech advocate is tarred as a "moral relativist," yet she is the one that has remained consistent year after year, motivated by categorical principles that are immune to fashion. (William Douglas refused to attend Supreme Court screenings of challenged adult films because viewing the film would imply that its content could possibly be relevant to the case. Viewing the film would be like asking in a voting rights case, "well, just how black is this guy?").

Timeless morality shouldn't change every few years, so whenever someone calls for censorship today they should be prepared to defend at least 50% of all historical calls for censorship. (50% is pretty minimal, no?)

They need to explain why married couples on TV today shouldn't sleep in the same bed, why mixed race couples shouldn't appear in movies today and why doctors today should be jailed for talking to patients about the proper use of a diaphragm. They should have to justify burning Ulysses and Lady Chatterley's Lover and The Tropic of Cancer today. And that's just for starters.

 

The Birth of Smut

The first commercially exhibited film kiss was Thomas Edison's eighteen second long movie "May Irwin Kiss" (1896) It's one smooch between a middle-aged couple. Nobody in America today could find the slightest offense in it. In fact, if a modern American were traumatized by "May Irwin Kiss" it would indicate that psychiatric treatment might be needed. Back in 1896, however, some people were scandalized and called for legal action to prevent the exhibition of such filth. There were people who thought Edison's machines should be smashed. Here are some different ways to interpret that: People in the old days were right. Edison's film is evil and evil is a moral absolute. "May Irwin Kiss" should have been banned then and should remain banned today. Anyone who promotes or distributes the film—or indeed any film or other depiction of a middle-aged married couple kissing—should be imprisoned.   People in the old days were backward. People in 1896 were just crazy or something. Their idea of which movies needed to be banned were absurd. Fortunately we are vastly superior to previous humans, and our current idea of what movies should be banned is correct.   People in the old days were just like people today. The desire to suppress expression and persecute anyone who disagrees with narrow, arbitrary standards is a constant force in human society. There will always be people who favor the banning of artworks and consider themselves competent to decide which ones to ban. If "Rebecca of Sunnybrook Farm" was the last book on Earth there would be some group of people wanting to ban it. The idea of banning "May Irwin Kiss" seems stupid today because it was stupid in 1896. And our current ideas of which works to destroy are probably equally stupid. Most of us cannot see that because, sadly, every generation thinks itself uniquely wise. Every new generation of people deride their parents' mores as quaint and then commence their own superior book-burning projects. The idea that "May Irwin Kiss" should be illegal (which, to my knowledge, it never was) lasted months or perhaps a few years. If we applied the 1896 anti-kissing crowd's standards today we would have to destroy almost every movie ever made in Hollywood. Nobody calls for that. Instead, people today have narrowed the idea of what movie content should be banned. Why? Because there are a lot more movies! The censor does not apply consistent moral standards, but rather objects to any movement along the boundaries of arbitrary social standards. A successful ban on movie kisses would not have been the end of calls to ban movies. There would have been calls to ban movies of a man and a woman in the same room, or images of women wearing cosmetics or some other outrage. But since movie kisses were not outlawed they became the social norm and censorious types dropped that objection and shifted their sights. If there was any real morality underlying the initial objection then "May Irwin Kiss" would have remained immoral and a thing that must be banned irrespective of what kind of movies were made after 1896, just as murder remains illegal while murder rates go up and down. Censors do not target objectively wicked films. They target the most "outrageous" films available, and outrage is malleable and often willfully self-induced. Imagine if I dump 100 films on your dining room table and demand that you separate out the wicked films. Unless you are a nut who thinks all day about what constitutes "wickedness" in movies you won't have an easy time drawing the line. Now imagine the same experiment, but this time I ask you to separate the ten wickedest films. Your job has gotten much easier! I don't think The Godfather is a wicked film but it is more wicked than The Wind in the Willows. Censorship is not a response or reaction. Censorship is the constant desire to destroy works at the margins of transitory propriety, regardless of their objective content. Censorship is a show of force... a perpetual assertion of society's right to dictate standards... any standards, not matter how arbitrary. There was an African tribe that decided, centuries ago, to breed beautiful women. I don't remember the tribe's name so we'll call the the Aesthetics. They had demanding standards and only the loveliest women could have children. (Or, more practically, all unattractive females were sold or given in marriage to other tribes.) The beauty of the tribe's women became legendary. Other tribes were in awe. All men agreed that the Aesthetic women were incredibly beautiful... everyone except the men in the Aesthetic tribe, who continued to consider a few women beautiful and most women plain. It seems that beauty is relative and, within the tribe, men continued to rank women against each other. The relative concepts of beautiful and ugly were so wired into the tribesmen that trivial female imperfections were seen as ghastly deformities. (This is similar to the fact that poor Americans are less happy than middle-class Indians, though the poor Americans' standard of living is much higher. In study after study, once you are above the starvation level money buys happiness only to the degree it makes you richer than your neighbors.) The censor is the same way. He starts with a conviction that there is wickedness to be rooted out and he finds it. No matter how virtuous movies become the censor will continue to rail against whatever movies cause him the most anxiety. The censor will find wickedness in movies just as the men of the Aesthetic tribe find ugliness in beautiful women. The impulse to censor is a constant urge that no amount of censorship can ever satisfy.

 

Manufacturing Heresy

An authoritarian system promotes orthodoxy by tormenting heretics. Clearly the point is not to reform the heretic himself. The heretic is an example for everyone else.

If the point were to enforce a specific, objective view there would come a day when all the heretics are dead and the inquisitor will have put himself out of a job. In practice, however, if we accept that tormenting heretics is central to a virtuous society then it would be disastrous for society to run out of heretics.

I used to marvel at the moral superiority of medieval figures who went to the chopping block over seemingly trivial matters of conscience. How righteous they must have been! What I did not realize was that those seemingly trivial heterodoxies were not trivial in relative terms. They were the biggest heresies available. Society was like playing musical chairs for your life.

Just as the only purpose of torture is torture, the only purpose of censorship is censorship. The suppression of heresy is not a response to heresy, it is an organizing principle of power in society. As O'Brien explains to captive Winston Smith in Orwells' 1984:

'And remember that it is for ever. The face will always be there to be stamped upon. The heretic, the enemy of society, will always be there, so that he can be defeated and humiliated over again. Everything that you have undergone since you have been in our hands -- all that will continue, and worse. The espionage, the betrayals, the arrests, the tortures, the executions, the disappearances will never cease. It will be a world of terror as much as a world of triumph. The more the Party is powerful, the less it will be tolerant: the weaker the opposition, the tighter the despotism. Goldstein and his heresies will live for ever. Every day, at every moment, they will be defeated, discredited, ridiculed, spat upon and yet they will always survive.

This drama that I have played out with you during seven years will be played out over and over again generation after generation, always in subtler forms. Always we shall have the heretic here at our mercy, screaming with pain, broken up, contemptible -- and in the end utterly penitent, saved from himself, crawling to our feet of his own accord. That is the world that we are preparing, Winston. A world of victory after victory, triumph after triumph after triumph: an endless pressing, pressing, pressing upon the nerve of power. You are beginning, I can see, to realize what that world will be like. But in the end you will do more than understand it. You will accept it, welcome it, become part of it.'
George Orwell 1984, chapter three

 

I don't know, but I've been told...

If war movies have taught us anything, it is that every group of Marine recruits is the worst bunch of fuck-ups and pussies the drill instructor has ever seen. What would happen if a class of Marine recruits ever did everything right? Boot camp is a necessary and refined mind control process. For the process to work, a certain amount of time must be spent frightening and humiliating the recruits.  If the recruits did everything right then new infractions would have to be manufactured. On the other hand, there are limits to how much time can be devoted to terrorizing the recruits while accomplishing the other goals of boot camp. So a perfect group of recruits and a worthless class of recruits will get yelled at about the same amount. I love the Marines, but Marine boot camp is a disastrous model for a free society, and the Marines would be the first to say so.

Ida Craddock should be on the Dollar Bill

In 1902 Ida Craddock committed suicide rather than report to federal prison to serve a long sentence for publishing a guide for married couples that included advice about how married women could derive some pleasure (or at least less pain) from marital intercourse. Her book has been described as the first reference to the idea of female orgasm in American letters. Nobody today could find the slightest offense in her marriage manual but it was felt, in 1902, that Ida Craddock was unfit to live freely in America, and ought to die in prison, for saying that it is possible for women to enjoy sex.

If you publish a book tomorrow saying that all women who enjoy sex in marriage are whores you will not be imprisoned. But there will be people who sincerely believe you should be imprisoned. You will be a pariah. The social norms of 1902 are not considered quaint today, they are considered evil. (Musical Chairs again... no matter what you believe you will be destroyed for your beliefs if you maintain them long enough. During the 1950s Red Scare one of the classifications of communist sympathizers were "premature anti-fascists," people who favored Stalin over Hitler before Stalin became a US ally during WWII.)

Was Ida Craddock driven to suicide for saying women could enjoy sex? Not really... she was hounded to suicide for saying something contrary to the authoritarian moralist/traditionalist position of 1902. The specific content of her books is utterly irrelevant. Had Ida Craddock been born earlier she would have faced the same fate for saying the Earth goes around the sun.

Censorship and other authoritarian institutions tend to punish change, whether that change it is good or bad, productive or destructive. It follows that any society that allows censors to triumph will be static and will collapse, explode in revolt or be conquered by a civilization brave enough to muzzle its own baying traditionalists.

The malignancy of what Thomas Jefferson called "every form of tyranny over the mind of man" is glaring. So why do so many of us nurture it?

Change promotes anxiety,. Many of us want everything to stay the way it was in our youth back when we first became aware of social norms. We learn social norms as if they were absolute just as we learn spelling as absolute. It's easier to learn that way. Spelling is hard enough without dwelling on the fact that most English word were spelled differently only a few hundred years ago.

At some point in life we have seen enough social change to realize that the social norms were learned in youth were so transient as to be almost faddish. Most people accept that as the price of maturity—just one more unsettling feature of reality. Others cannot handle it. To them, the fact that things they learned when they were eight years old were not eternal truths is an intolerable betrayal.

Seeing their own personality as the essential substance of the universe, they view all natural change as deviation from the cosmic truth of their own first impressions. The neurotic traditionalist is solipsistic. Notice that when a person speaks of traditional values they are invariably describing the world of their childhood or some era not long before that—the world their parents grew up in. I have never once heard an American politician demand that we return to the values of ancient Egypt, though it would make just as much sense as the demand that we return to the 1950s.

That's just human nature. We equate "different" with "outrageous," and "tradition" with "good." Tradition conjures visions of happy rustic Christmases. It is a buzz word, akin to "natural."

We bury the obvious truth that great majority of traditional values were wicked... that's why we changed them. In 1967 you couldn't buy birth control in Connecticut. Ida Craddock was persecuted using laws she had no say in whatsoever because she died well before women were permitted to vote. Separation of the races is the quintessential traditional American value. The idea that the sun orbits around the Earth is a profoundly traditional value.

I do not condemn traditionalism. I'm an aesthetic reactionary, preferring paintings from the 19th century and movies from the 1950s. I consider abstract expressionism to be a cultural error. But I do not think people who like modernism should be herded into camps for death or reeducation. It cannot be right to ruin other human beings simply because their ideas make me anxious.

Not all anxiety-provoking innovations are met with violence, of course. When fashions move "too fast" giggling and eye-rolling are usually enough let the fashionable woman know she has run too far ahead of the pack. Our desire to fit in is enough to keep most of us within narrow ranges of taste. And if one or two people dress funny, so what? It's just more for the rest of us to laugh at. The few weirdoes actually help define the norm... without a few whackos in the mix how would the rest of us witness the mockery and ostracism we would meet if we stray too far from the herd?

There are, however, two areas where heterodoxy provokes special anxiety that demands something beyond mere casual censure and exclusion—religion and sex. Heterodoxy in these areas has typically been met with demented fury, suggesting they are two special weak spots in the fabric of orthodoxy, requiring special defense

Challenges to religious orthodoxy are met with unreasoning fury because faith is irrational, and challenges to faith cannot be countered rationally. (That is not a knock on religion... all people of faith readily concede that faith is irrational. That's why it's called faith.) Incapable of battle in the marketplace of ideas, religious orthodoxy must be defended in extreme fashion—violence, ostracism, persecution and condemnation.

The censor's obsession with sex is driven by something quite different, revealed in his constant fixation on the corruption of the young. In her public suicide note, Ida Craddock had this to say about Comstock, her persecutor:

The man is a sex pervert; he is what physicians term a Sadist--namely a person in whom the impulses of cruelty arise concurrently with the stirring of sex emotion. The Sadist finds keen delight in inflicting either physical cruelty or mental humiliation upon the source of that emotion. Also he may find pleasure in gloating over the possibilities to others. I believe that Mr. Comstock takes pleasure in lugging in on all occasions a word picture (especially to a large audience) of the shocking possibilities of the corruption of the morals of innocent youth.

All creatures want to have children. It is a means to an end... grandchildren. And great-grandchildren and so on. Human parents have an interest in using their children to produce grandchildren. The children have different interests... they want to produce children for themselves, not grandchildren for their parents. Parents set up arranged marriages and their children try to get out of them, and so on. "Why can't you marry a doctor?" It's just human nature.

So we have a deep desire to determine our children's mating behavior. (On average, over all of human history...  we all know parents who do not fit these generalizations but they are exceptions.)  We think we can. or should be able to, control the production of our grandchildren. (If we all died at 20 no one would be worried about their children's mating habits. If we all lived to 200 we would be concerned with shaping the mating habits of our great-great-grandchildren.)

Consider the almost universal American attitude that children should learn about sex at home. Why? Because parents have a special selfish interest in controlling their children's sexual attitudes and express that interest as a parental right. (Fire safety is as vital to child's well being as sexual attitudes, yet I have never heard a parent object to a school teaching fire safety.)

Parents want to keep their teenagers ignorant about things the teenagers want to know. The teenagers want to understand sex well enough to make their own decisions. Parents want, as much as possible, to keep children ignorant and make those decisions for their children. (The conflict between parent and child is best seen in gay children. The parents of an 18 year old gay man generally wish he would settle down with a girl. That is the opposite of his own self-interest. What the parents desire would be a disastrous mistake for their child.)

I am sure that parents sincerely think this is "best" for the child, just as marrying a doctor would be "best" for the child. And it may be best for the child... I am not saying that parents can never make good decisions, only explaining why we feel a fundamental right to constrict what our children know about sex.

To understand attitudes toward erotica it is best to think of all erotica as sex education. It is information about sex. The anxiety a parent feels about their child somehow viewing pornography is the same anxiety they feel about a teacher telling children what constitutes normal sexual behavior. If they are more upset about pornography than sex education it is only because they trust a teacher to have more conventional sexual attitudes than those of a pornographer. Fair enough.

The problem is not that parents want to control the sexual attitudes of their children. The problem is that a lot of parents are willing to subvert the constitution and even imprison and kill people to get what they want. That is evil. It is precisely as evil as endorsing imprisoning and killing people of different religions or political parties because their views might influence your child.

The True Role of Censorship

It is a mistake to pay much attention to the content of what is being censored because it doesn't matter. Just as the only purpose of torture is torture, the only purpose of censorship is censorship. The point of all censorship is that people who reject orthodoxy should be punished. The purpose is to promote orthodoxy... any orthodoxy. Stalin locked up people who said things that ran counter to Stalinist orthodoxy. As that orthodoxy changed people were locked up for different things... a given idea might have been okay in 1935 but been intellectual contraband in 1940. It is meaningless to say a person was sent to the gulag for praising Lysenkoism or for condemning Lysenkoism. People were sent to the gulag for flouting the orthodoxy of the moment.

The true role of censorship is to thwart social change. We don't like change... it promotes anxiety. Many of us want everything to stay the way it was in our youth back when we first became aware of social norms. We learn social norms as if they were absolute just as we learn spelling as absolute. It's easier to learn that way. Spelling is hard enough without dwelling on the fact that most English word were spelled differently only a few hundred years ago.

At some point we all see enough social change to realize that the social norms were learned in youth were so transient as to be almost faddish. Most people accept that as the price of maturity—just one more unsettling feature of reality. Others cannot handle it. To them, the fact that things they learned when they were eight years old were not eternal truths is an intolerable betrayal. Seeing their own personality as the essential substance of the universe, they view all natural change as deviation from the cosmic truth of their own first impressions. The neurotic traditionalist is solipsistic. Notice that when a person speaks of traditional values they are invariably describing the world of their childhood or some era not long before that—the world their parents grew up in. I have never once heard an American politician demand that we return to the values of ancient Egypt, though it would make just as much sense as the demand that we return to the 1950s.

That's just human nature. We equate "different" with "outrageous," and "tradition" with "good." Tradition conjures visions of happy rustic Christmases. It is a buzz word, akin to "natural." We bury the obvious, that great majority of traditional values were wicked... that's why we changed them. In 1967 you couldn't buy birth control in Connecticut. Ida Craddock was persecuted using laws she had no say in whatsoever because she died well before women were permitted to vote. Separation of the races is the quintessential traditional American value. The idea that the sun orbits around the Earth is a profoundly traditional value.

I do not condemn traditionalism. I'm an aesthetic reactionary, preferring paintings from the 19th century and movies from the 1950s. I consider abstract expressionism to be a cultural error on par with communism. But I do not think people who like modernism should be herded into camps for death or reeducation. It cannot be right to ruin other human beings because their ideas make me anxious. The word for that is "evil."

Not all anxiety-provoking innovations are met with violence. When fashions move "too fast" giggling and eye-rolling are usually enough let the fashionable woman know she has run too far ahead of the pack. Our desire to fit in is enough to keep most of us within narrow ranges of taste. And if one or two people dress funny, so what? It's just more for the rest of us to laugh at. The few weirdoes actually help define the norm... without a few whackos in the mix how would we all learn of the mockery and ostracism we would meet if we stray too far from the herd?

The censorious mind reserves its most demented wrath for ideas that provoke special anxiety—religion and sex. Heterodoxy in these areas is met with fury, suggesting they are two special weak spots in the fabric of orthdoxy.

Challenges to religious orthodoxy are met with unreasoning fury because faith is irrational, and challenges to faith cannot be countered rationally. (That is not a knock on religion... all people of faith readily concede that faith is irrational. That's why it's called faith.) Religious orthodoxy is peculiarly vulnerable so it must be defended in extreme fashion—violence, ostracism, persecution and condemnation.

 

Won't Someone think of the Children?!

Egon Schiele was one of the greatest artists of the 20th century. In 1912 he was thrown in jail for "exhibiting erotic drawings in a place accessible to children." The judge actually burned one of his works in court. Today some of the works for which Schiele was imprisoned (at least the ones that were not burned) are in major museums that are among our most respected cultural institutions. Ironically, those museums are open to children. One root of the censor's obsession with sex is revealed in his constant fixation on the corruption of the young. As often as not, such moralists arrive at their stance in reaction to their own sexual demons. In her public suicide note, Ida Craddock had this to say about Comstock, her persecutor: The man is a sex pervert; he is what physicians term a Sadist--namely a person in whom the impulses of cruelty arise concurrently with the stirring of sex emotion. The Sadist finds keen delight in inflicting either physical cruelty or mental humiliation upon the source of that emotion. Also he may find pleasure in gloating over the possibilities to others. I believe that Mr. Comstock takes pleasure in lugging in on all occasions a word picture (especially to a large audience) of the shocking possibilities of the corruption of the morals of innocent youth.

Sexual Knowledge

Notice that the Egon Schiele piece pictured above does not advocate any behavior whatsoever. It does not tell the viewer to beat women, enter into plural marriage, vote Socialist or anything else. It does, however, provide considerable information about human anatomy. Why is even basic anatomical knowledge considered "harmful to children"?

All creatures want to have children. It is a means to an end... grandchildren, and great-grandchildren and so on. Human parents have an interest in utilizing their children to produce grandchildren. The children have different interests... they want to produce children for themselves, not grandchildren for their parents.

Parents set up arranged marriages and their children try to get out of them, and so on. "Why can't you marry a doctor?" It's just human nature.

So we have a deep desire to determine our children's mating behavior. (On average, over all of human history...  we all know parents who do not fit these generalizations but they are exceptions.)  We think we can. or should be able to, control the production of our grandchildren. (If we all died at 20 no one would be worried about their children's mating habits. If we all lived to 200 we would be concerned with shaping the mating habits of our great-great-grandchildren.)

Consider the almost universal American attitude that children should learn about sex at home. Why? Because parents have a special selfish interest in controlling their children's sexual attitudes and express that interest as a parental right. This position is entirely a matter of parental ownership of children, with no concern for the welfare of the actual child. Parental attitudes toward sex education are all over the map and they cannot all be equally beneficial to the child... it is incoherent to maintain that parental sex education is inherently GOOD, regardless of the nature of the instruction.

Parents want to keep their teenagers ignorant about things the teenagers want to know. The teenagers want to understand sex well enough to make their own decisions. Parents want, as much as possible, to keep children ignorant and make those decisions for their children. I am sure that parents sincerely think this is "best" for the child, just as marrying a doctor would be "best" for the child. And it may be best for the child... I am not saying that parents can never make good decisions, only explaining why we feel a fundamental right to constrict what our children know about sex.

(The conflict between parent and child is best seen in gay children. The parents of an 18 year old gay man generally wish he would settle down with a girl. That is the opposite of his own self-interest. What the parents desire would be a disastrous mistake for their child.)

To understand attitudes toward erotica it is best to think of all erotica as sex education. It is information about sex. The anxiety a parent feels about their child somehow viewing pornography is the same anxiety they feel about a teacher telling children what constitutes normal sexual behavior. If they are more upset about pornography than sex education it is only because they trust a teacher to have more conventional sexual attitudes than those of a pornographer. Fair enough.

The problem is not that parents want to control the sexual attitudes of their children. That is human nature, and I don't have a big problem with it.

The problem is that a lot of parents are willing to subvert the constitution and even imprison and kill people in hopes of maximizing their control over their children's minds. That is evil. It is precisely as evil as endorsing imprisoning and killing people of different religions or political parties because their views might influence your child.

The Backbone

We have an interlocking system of movie regulation. The MPAA ratings system and "pressure groups" are important elements, but the hidden back-bone of the system is obscenity law. Social convention with no implied backing in law is fragile stuff.

The trouble with our obscenity laws is that they are unconstitutionally vague... capricious and chilling by design.

Ratings

The MPAA ratings system is one part of an ongoing, 80 years and counting, Hollywood industry effort to stave off government censorship of Hollywood movies. (Hollywood first instituted a censorship code in the 1930s to forestall proposed federal regulation and to mollify the state censorship board system that made it difficult to market a film nation-wide.)

Such an effort would clearly be unnecessary if the government conceded that it is not in the movie banning business.

For whatever reason, however, our government clings tenaciously to a theoretical power to criminalize artworks. Actual obscenity prosecutions have become quite rare but he ongoing existence of antiquated obscenity laws is a statement to all film-makers, "you work only with the government's consent."

As long as the government claims the right to censor something bad then everything is potentially up for grabs. To ensnare more movies one just needs to tinker with the definition of "bad." (Any one who has spent a day in the government can tell you that it's 100 times easier to redefine an existing power than to assert a new power.)

So when Hollywood studios cut movies to gain an R rating they are responding to the existence of obscenity laws even though nobody on Earth claims that the specific material being cut is obscene.

Guarantees

Financial and intellectual markets alike thrive on certainty. We need an enforcement mechanism for contracts. We need a currency that's honored everywhere at the same value. Scientists need to know they won't be burned at the stake if they find a new planet. Newspaper editors need to know they won't be jailed for criticizing the government.

Our First Amendment is written in absolute terms because it is supposed to be a rock to which we can anchor our intellectual, artistic and commercial marketplaces.

In American law everything not forbidden is permitted. If you are thinking about opening a lemonade stand you can start by consulting a list of illegal substances to ascertain that lemonade is not on the list. If it is not listed as illegal then it's legal. There will be rules about sanitation, zoning, licensing and such but at least you will have cleared the necessary first hurdle of determining that lemonade itself is not illegal. And if lemonade is on the list then lemonade will be defined with scientific exactitude... percentage of lemon juice, sugar content, etc..

In a tyrannical country you go to City Hall and ask whether it is illegal to manufacture lemonade and the guy behind the counter says, "why don't you try it and find out?"

"Do you feel lucky... punk?"

Since this is America we know that either all movies are legal, or there's a government list or precise definition we can rely on to tell us exactly which movies are forbidden.

Uh oh! Looks like we need a third option, because it is impossible to determine if a film is obscene in America.

It's not difficult, it is impossible. Think of dividing by zero or trisecting an angle with a compass... that kind of impossible. (I can say with reasonable confidence that "The Care Bears Movie" is not obscene. And when I'm looking for my car keys I can say they're not in my hand, but that's not really the question, is it?)

Short of the extreme step of avoiding any sexual content whatsoever there is no safe harbor for film-makers. They can try to conform to vague and contradictory standards that are suggestive of what might be obscene but it is impossible to know because, by law, the determination can only be made after the fact.

Have you ever had trouble interpreting parking signs? You know you can park wherever it's not forbidden but sometimes you encounter conflicting or ambiguous signs. Imagine if you complained to the city about the ambiguity and someone replied, "well, you know for sure you can park in your own driveway, so why don't you stay home?"

Movies are not treated like parking, drugs, guns, food or any other regulated commodity. There is no list of illegal movies. There is no meaningful definition of illegal movies.

In fact, the Supreme Court has acknowledged that if 10,000 juries in 10,000 trials determine that "Movie Z" is not obscene it doesn't mean "Movie Z" is not obscene. It just means it wasn't obscene the first 10,000 times it was tested. It's a gambling proposition. "Why don't you try it and find out?"

Corporations and Jellyfish

Those with the most to lose can least afford to gamble, which brings us to corporate America.

I noted earlier that the largest theatre chains, retailers, distributors and rental chains happen to be the ones with the most restrictive policies. The smallest theaters and retailers have the least restrictive policies. Why is that?

Do these vast corporations have a moral attitude about the content of films? Of course not. By definition a corporation can no more have moral attitudes than can a jellyfish or a sewing machine. A corporation is an abstract legal entity dedicated to maximizing returns.

Sex sells and those corporate entities would love a bite of the profits. Instead they decline the opportunity and their puritanical posturing is in rough correlation to their size.

There are a lot of reasons big outfits are more cautious. A large enterprise is more susceptible to boycotts. A large enterprise sometimes gains more from favorable legislation than from actual sales so it needs to mollify even the looniest politician.

But if there was no possibility of legal jeopardy, immediate or down the road, I have to think that some of these big operations would tell the pressure groups to take a hike. There is, after all, money lying on the table.

But there is a possibility of legal jeopardy.

It is not fantastic to think that advocates of censorship might successfully pressure government to expand the range of banned films because the category exists. And, in theory, the government could use RICO statutes to confiscate 100% of the assets of the Walmart corporation for selling even one "obscene" movie. (I am using Walmart as an example only because it is easily the largest retail chain in the US.)

That outcome is highly unlikely but Walmart is too big and too diversified to risk any trouble with the government whatsoever and it is impossible to determine with certainty what movies may or may not be obscene today, let alone tomorrow. Hence Walmart seeks safety by excluding many DVDs that are 99.999999999% certain to be legal.

Corporate legal departments are cautious by nature and will always say (truthfully), "if you sell "Movie Z" we cannot guarantee that the corporation won't be seized by the government." Such extreme caution may even be sensible. We all carry property insurance to protect us against natural disasters that aren't very likely.

The chilling effect in action

When laws have the effect of making us afraid to do something legal it's called a "chilling effect."

Most of us err on the side of caution and avoid things that even might be illegal. If the law in one area is so vague that almost anything might be illegal people will tend to steer clear of the whole area.

Let's say Miramax was contemplating whether to sink $100 million into an extravagant musical including some tasteful scenes of unusual sexual candor. (I am using Miramax in this hypothetical only because they came to mind as an inventive but mainstream operation.)

As with Walmart in the previous example, Miramax could not possibly determine its legal jeopardy with the kind of certainty one expects when investing $100 million. Of course Miramax would eventually "win" any case directly or on appeal. But even a farcical prosecution could cost millions and unfairly tar Miramax in many minds as a presumptively criminal operation.

And, like Walmart, Miramax is diversified. They can afford a boycott of their sex musical because the boycotters wouldn't have seen it anyway. But they cannot tolerate a boycott of all Miramax pictures.

Compare that to an individual making a sex musical. She would be happy with the free publicity offered by a farcical prosecution. The smaller the enterprise the more daring it can be.

But that daring individual doesn't have $100 million. She can make her sex musical but it will not be a big mainstream-quality movie. It will not be widely distributed or widely advertised. It will not be nominated for any Academy Awards. It will not be directed by Ang Lee (someone who could probably make an excellent sex musical.)

So sex remains marginal.

Contrast that to a decision involving anything other than sexuality in movies. Say Old Navy decided to sell an orange hat. We have no hat-color laws so there's no pretext for dragging the hat into court. The only question is, "what colors do people like?"

If, however, there was a law against selling a hat "of any hue that would outrage the reasonable man" any government official with an axe to grind might be able keep Old Navy in court for years. (Perhaps Old Navy contributed to the other guy in the last election.)

The effect on the overall hat market would be pathological caution. Without a rational test of which colors might "outrage" somebody hat makers would seek safety in numbers, limiting themselves to whatever hat colors had never been prosecuted. Hat's would look more and more alike.

Whatever benefits hat design is supposed to gain from competitive free-market capitalism would have been negated.

A mode of attack

Our society has tacitly agreed that 99% of adult movies are legal. Some of the largest corporations in America profit directly from their distribution; primarily hotels and media companies. Adult movies are so mainstream that the average viewer is a Bush voter; a white middle-class employed male.

Yet the urge to censor and intimidate continues to fester. The current contention is that there's an outrageous undefined 1% of adult movies so terrible that they're illegal under current law.

Focusing on "the worst of the worst" is merely one more example of the ancient political ploy of mounting a sweeping attack by feigning specific outrage at the one most unpopular instance of something that's otherwise widely approved. It sounds so reasonable... who wants to defend the worst of the worst?

If you want to attack guns in general you pick a few models of gun, call them "assault weapons" and claim they have special sinister properties.

Partial birth abortion is another one of those deals... pick the ugliest form of the procedure and demand an up-down referendum on only that particular thing. 

Another favorite is to demand the removal of the one most controversial book in a given library. It's only one book right? But since each successful removal promotes some other book to "most controversial" you can eventually empty a library that way.

The strange power of unused laws

I don't know what constitutes the most heinous 1% of porn but whatever it is I am willing to stipulate that it's awful.

I feel no obligation to support it. Defend its right to exist? Of course. But I have nothing but contempt for the modern porn industry at its best so I'm hardly likely to support the worst it has to offer. (If we are obliged to support something just because someone else attacks it then how free are we?)

Atomic Cinema is all about rejection of hideousness in adult entertainment so I don't carry anything from the most hideous 1% or even the most hideous 90%. It is inappropriate for the government to assess things like "serious artistic worth" but it is highly appropriate for individuals to do just that. I seek out movies with some semblance of artistry for my own selfish personal reasons. I value art and I want to be proud of my website. (That is my own measure of self esteem. Some one else might reasonably find self esteem in defiance, seeking out the most outrageous material possible. It is a personal decision.)

My personal interest in works of artistic, historical, social or scientific merit happens to coincide with the list of vague traits cited by courts time and again as making a work constitutionally protected. And all constitutionally protected works are the same. There is no constitutional difference between The Devil in Miss Jones and The Federalist Papers.

(This is a widely misunderstood point. Questions of artistic merit in erotica are not part of a constitutional balancing test. As long as all participants are adults artistic merit is an absolute defense of a work, regardless of content. It is not that x amount of art justifies y amount of sex. An obscene work has to be utterly lacking artistic merit. Since the Devil in Miss Jones was made with unmistakable artistic intent it is supposed to enjoy the same constitutional status as The Federalist Papers because there are only two categories.)

So why am I so bent out of shape? Because the theoretical suppression of the hideous 1% has penumbral effects I feel every day. It taints all adult themed entertainment with an implication of criminality.

I have found that many Americans believe that all adult films are illegal despite the overwhelming evidence to the contrary. Their cable system offers them pay-per-view hardcore and they continue to believe it is illegal, as if the biggest media companies in America just decided to do something patently illegal for the Hell of it. Rather than correctly deducing the legal status of the film from its availability they cynically figure that it is something the cable companies are "getting away with." (Recall the earlier quote from 1984, "...who were under the impression that they were buying something illegal")

People are just taking their cues from their own government in the same way school children takes cues from their elders as to which classmates it is right to bully.

Laws against inter-racial marriage remained on the books in some states for decades after they were invalidated in federal courts and decades after the last attempted state prosecution of a mixed-race couple. Even though mixed-race couples faced no practical barrier the ongoing existence of miscegenation laws served as an ongoing threat of legal action at some future date—an official statement that the fight against race-mixing wasn't over, merely in abeyance. Those unused laws served as an official approval of racism.

Citizens took their cues from that situation. Whether mixed race couples were prosecuted or not the state government made it acceptable to look down upon them and discriminate against them because they were, in the eyes of the state, criminals.

Unused laws are in some ways the most powerful laws of all because they are immune to judicial review. Keeping out of courtrooms can ensure that everyone is a presumptive criminal and nobody is ever exonerated.

"Now 99% free!"

The 1% argument has been artfully framed by censorship proponents. Anyone who defends the 100% is, of course, defending Charlotte's Web, The Bible, and The Joy of Cooking along with the nasty 1%, but that's never how it's presented.

American free speech advocates are not sex maniacs. They are forced to spend their lives defending shabby smut because that's what is always under attack. Free speech advocates never get to pick their battles. Targeted works are selected precisely because defending them will make the entire concept of artistic freedom look shabby.

(Advocating free speech is the most thankless task in the world because it requires one to defend the right of people opposed to free speech to say that free-speech advocates belong in prison!)

The free speech advocate is painted as an extremist, unwilling to compromise. "How can you be so unreasonable? 99% is about the same as 100%. What's 1%?"

It is reasonable to ask back, "If you think they're so close then what possible objection could you have to 100%?"

The 99% is a red herring along the lines of "don't I deserve some credit for all your friends I didn't sleep with?"

Free societies don't get democracy brownie-points for what we permit. We get tyranny points for what we forbid. Our government can not claim credit for giving us the unchallenged 99% because it is not the government's to give.

And why is it not the government's to give? Because—let's say it together—it is self-evident that we are endowed by our creator with certain inalienable rights.

Doris Day

During one of our recent torture debates I heard an argument on TV where one man said that torture was okay, but only for really bad people in special circumstances. His opponent said:

"When we decided that our system doesn't allow torture it was understood by everyone that we were talking about bad people and special circumstances. We don't need the Constitution to tell us not to torture Doris Day."

All rights exist only to protect objectionable behavior. If it wasn't objectionable nobody would object and it would never be an issue in the first place. Thus, the protection of unobjectionable behavior is not protection at all.

That is why the difference between 99% and 100% is the difference between a free press and a pretend free press.

As long as the government asserts a right to ban one work involving consenting adults then all other works involving consenting adults remain legal only with the implied consent of the government. At that point the question of which specific movies to ban is almost irrelevant... it's just haggling over the price.

.

.

Why do I care?

Aside from my personal dislike of being treated as a quasi-criminal for doing things that are perfectly legal I have two somewhat more high-minded objections to the current state of affairs.

Government policies that attack sexual artworks categorically stigmatize all art, all human sexual conduct and even the human body itself. They also deform the nature of every artwork made.

Stigma

The existence of laws against any art stigmatizes all art. If some art is so horrible that it is criminal then art must be a pretty shady enterprise. Censorship isn't an attack on things, it's an attack on the creative process. (That's not to say that a person who favors censorship can't enjoy Monet or Beethoven. Looking back to the torture comment, that's like saying, "Of course I support human rights. I like Doris Day.")

Imagine that we had a law against "advocating a flat tax." (I chose the example because I find flat tax proposals foolhardy but certainly defend the right to advance them.)

Politicians would bend over backwards to advocate things as far from a flat tax as possible, lest there be any confusion. The entire spectrum of tax debate in America would shift an increment toward progressive rates and that shift would be felt in all public discussion of education, social security, public works... everything! Every tax proposal would be different than it would be in an unregulated environment.

Similarly, if some pictures with naked people in them warrant a prison term then all pictures of naked people are suspect because nudity–though perfectly legal in and of itself– is correlative with what is illegal.

This effect is particularly pronounced in America because we are such a free country in other areas. We are so accustomed to  having a clear idea of what's legal that when we encounter a gray area we likelier to steer clear. (I once knew a man who had spent years in the Gulag for selling Boris Pasternak novels in the old USSR. When I asked him why he had chosen such a risky avocation he said, "Everything was against the law... it didn't seem so much riskier than anything else.")

When the TV news carries on about Janet Jackson or internet porn people are a bit more reluctant to hang a traditional academic nude in their living room. Even if their personal attitudes are unaffected they have to consider how the generalized stigma has shaped the attitudes of everyone they invite into their living room.

Breathing Space

Our artistic freedom to express anything we want as long as it isn't sexual is like Henry Ford's famous statement that his customers "can have whatever color car they want as long as it's black."

Imagine that overnight someone lowered the interior roof of your car by two inches. Unless you're quite tall you're not going to ever hit your head on the roof either way, so what's the difference?

The difference is that you will feel claustrophobic and you will not move or drive the way you did before. Suddenly your hand movements are smaller and more controlled. When you turn around to look out the rear window you're a little more precise about it.

You only lost space you were not using, but it turns out that on some level you were using it. It was a margin of error... breathing space.

Artists operate in a conceptual landscape of possibilities where everything is connected. When any avenues are foreclosed from the start all results are different. Every artistic approach can (and will) be seen partially in terms of its proximity to the forbidden zone.

If our artistic treatments of sex are in any way dictated by the government then they are somewhat deformed, hence our artistic treatments of love are somewhat deformed, hence our artistic treatments of family are somewhat deformed, and society and government and war and peace and god and the planet. Everything we have to say about anything is somewhat deformed.

The price we pay is measured in masterpieces

Art is the sum of artistic choices–choices of what to do and what not to do.

When someone paints a still life they are choosing not to paint a sex picture... it's a decision the artist makes.

If a sex picture is proscribed from the start then the still-life painter hasn't made the choice. Hence even the innocuous still-life is not the artist's choice from the mindscape of all possible paintings, it's her choice from a pre-defined menu of permissible paintings.

Censorship strikes most dearly at a culture's most sublime potential. The mediocre artist is far less sensitive to the loss of breathing room. The better artist's work is more all-encompassing... more sensitive to cultural harmonics. A first-rate artist senses connections that others miss. Her talent is, using the car roof analogy, taller.

The price we pay for censorship is measured in masterpieces.

Chris
benevolent dictator of Atomic Cinema