Where is the line? What falls under the rubric of art, and what is worthy of the obscene label? In fact, there is no clear demarcation.
In the 1964 Jacobellis Vs. Ohio decision, Supreme Court Justice Potter Stewart said of obscenity, “I know it when I see it.” The trouble is the way a sexually adventurous feminist ‘sees it’ is likely going to be very different than the way a conservative evangelical cleric ‘sees it’. So, who gets to decide?
Consider some definitions.
Art – the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.
Erotica – Art intended to arouse sexual desire
Porn – Movies, pictures, magazines, etc., that show or describe naked people or sex in a very open and direct way in order to arouse.
Obscene – Offensive or disgusting by ‘culturally accepted standards’ of morality and decency.
The problem is ‘culturally accepted standards’ are constantly evolving. In some parts of the world, women are still expected to wear ‘burkas’ which cover every part of their bodies but their eyes. Failure to comply results in being branded an outcast or, worst case, being murdered by family members to preserve their ‘honor’. The opposite is the norm in many European nations, where nudity is blasé, and women are able to express their sexuality pretty much as they wish, without fear of condemnation.
In 2018 America, ‘culturally accepted standards’ vary widely. Seniors and religious conservatives are much less tolerant of open sexual expression than young adults, who grew up with cell phones and ‘sexting’.
The Supreme Court applies ‘The Miller Test’ , first used in 1973 in Miller vs. California, to determine if a work is obscene and not protected under the First Amendment, and therefore can be prohibited. The test asks if the average person, when viewed as a whole, finds that a work does the following…
- Appeals to the ‘prurient’ interest
- Depicts or describes sexual conduct in a patently offensive way
- Lacks serious literary, artistic, political, or scientific value
All three requirements of the Miller Test must be apply in order for a work to judged unworthy of First Amendment protection.
In the U.S., states and local governments often have their own laws that define pornography and the nature of obscenity, within the ‘Miller’ First Amendment framework. As one might expect, what the average person ‘sees’ in rural Utah is very different than the average person’s perception in Silicon Valley or NYC Soho.
So, how is the ‘average person’ factored in when the internet is the medium? The answer: there is no ‘average person’. About 40% of worldwide internet traffic is moderate to highly sexualized. How do you police that? How do you shape any kind of standard?
Consider Utah: a very conservative state. The law there reflects the region’s conservative revulsion with the naked human body in art, or otherwise. Oddly enough, Utah also happens to be the state with the highest U.S. per capita consumption of internet porn.
It also happens that six of the world’s eight top porn searching countries are Muslim states. Yet, in some of those places, the production of, or mere participation in, porn can get you executed… almost certainly so if you are female.
Just the opposite is true in most of Europe. Sexual expression is broadly tolerated. Artistic expression is culturally valued. Nudity as an expression of art is celebrated.
So, how does one settle on any kind of standard for media material that is dispersible almost instantly on the world wide net?
For this artist, the answer to that very profound question lies deeply embedded in nature.
Embracing nature’s model offers a common path forward that is worthy of our species. Nature informs we humans about how to relate to each other, how to share the Earth’s increasingly limited resources, and how to protect and preserve the biosphere we all depend on.
It comes down to this: nature is most resilient in biologically diverse ecosystems. Nature favors inclusion over exclusion, permiculture over monoculture, kindness and compassion over self-absorbed sociopathy.
How do we apply that paradigm to human sexual expression? Answer: by celebrating diversity and being broadly tolerant within a framework inspired by nature.
What does nature tell us about drawing the line on obscenity? Answer: Cruel things sometimes happen as part of natural selection, but in nature, violence or cruelty for its own sake is an aberration.
Where human behavior is concerned, tolerance should end where expression turns from celebration to an unnatural perversion where words like subjugation, suffering, misogyny, brutality, degradation, and abuse apply. Whether it is a live performance, a painting, a photo, or a pornographic video, it is art when it celebrates its subject; obscene and offensive when it is unnatural and cruel.
Though some treat just the hint of naked skin, particularly female skin, as culturally sinful, it is the way we are born. It is natural. In just the same way, nature evolved humans as highly sexual beings. Binding our human sexual behavior in pious cultural stricture is not natural. Consent should be the only test.
The image above is titled simply, Forest Maiden. It reveals the beauty of a young life, soaking up the wonder and power of nature. Forest Maiden is a celebration. As such, it is a work of art, without question.
Bottom line: the world needs a culturally accepted, internet friendly standard for dividing art from obscenity. The test for any such global standard should begin with the natural rhythms and rules of life on Earth. – EmanPDX