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Judging Obscenity

Judging Obscenity: A Critical History of Expert Evidence

Copyright Date: 2003
Pages: 304
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  • Book Info
    Judging Obscenity
    Book Description:

    He demonstrates that these communities of experts are divided on such questions as, Can a novel or film be both high art and obscene? and, Is the world of heterosexual pornography categorically different from the worlds of gay and lesbian pornography? He observes that the ideas of an "average" psychological or behavioral response to a story or an image and the "community" standard of decency or tolerance are outmoded myths that elude all attempts at careful measurement. Nowlin concludes that lack of agreement among experts, for example, as to how and why some sexually explicit imagery titillates or pleases some people, while disgusting or demeaning others, can no longer be viewed simply in terms of moral, religious, or even political predilections. Judging Obscenity traces the way freedom of speech and the right to equality have taken shape within the worlds of pornographic expression and consumption and provides a historical glimpse of changing views about literature and art, as well as a critical examination of the nature of social science research in matters of human sexuality, media-response, and sexual expression.

    eISBN: 978-0-7735-7090-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-v)
  2. Table of Contents
    (pp. vi-vii)
  3. Acknowledgments
    (pp. viii-x)
  4. Introduction
    (pp. xi-2)

    At the dawn of the new millennium, Canada’s highest court delivered two rulings about pornography that are among the more controversial ones to be found in the history of Anglo-American obscenity litigation. One confirmed the notion that sexually explicit gay and lesbian narratives, including sadomasochistic depictions, are socially, psychologically, and culturally more important to Canadian gays and lesbians than similarly explicit heterosexual material is to Canadian heterosexuals.¹ The other confirmed that, as a matter of their constitutionally entrenched freedom of expression, Canadian citizens should be entitled to give literal or pictorial expression to their imaginations, even where this expression looks...

  5. 1 The Constitutional Backdrop for Reviewing Expert Opinions about Pornography
    (pp. 3-24)

    For more than a century, American federal and state governments have been lawfully vested with an overarching power to act as guardians of public morals, health, and safety. Whenever affected citizens challenged the constitutional validity of nationwide or statewide regulatory schemes, the appropriate government body or agency could justify its allegedly unlawful intrusion into Americans’ professional and private lives by reference to an established common law rule, conveniently known as the “police power.” Around the turn of the twentieth century, state legislatures created laws, for example, that placed limits on the number of daily hours that women could work in...

  6. 2 Progressivism and Legislative Facts in the Shaping of Public Policy
    (pp. 25-46)

    A cursory historical review of the role of expertise in courtroom decision-making indicates that common law judges maintained a fairly cooperative relationship with experts until the dawn of the twentieth century. Freckleton recalls that as early as the Middle Ages “special juries” or “struck juries” comprising experts were used by courts as an important means of acquiring expert assistance (Freckelton 1987, 232). Justice M.D. Kirby notes that judges in England were generally receptive or hospitable to experts as early as the sixteenth century (ix). In the early eighteenth century litigants were entitled to use their own special juries to try...

  7. 3 Experts and Obscenity Law: American Rules and Innovations (1884–1990)
    (pp. 47-84)

    In 1884 a New York book and art seller was charged with possessing and selling nine photographs considered indecent and obscene, contrary to section 317 of the statePenal Codeat that time.¹ Some of the objectionable materials were photographs of paintings previously exhibited at galleries in Paris and Philadelphia. At his trial, the defendant called an artist and a person who studied art to provide in effect expert testimony regarding the nature of the photographs, or more specifically, to give an opinion as to whether or not the photographs were in fact obscene or indecent. Justice Andrews rejected the...

  8. 4 Experts and Obscenity Law: Canadian Rules and Derivations (1942–2000)
    (pp. 85-132)

    On 20 May 1942 , the director and manager of the Gayety Theatre on St Catherines street in Montreal was charged with showing an obscene “tableau” entitled “Spin a Web of Dreams.” The Crown’s evidence inConwayv.The Kingwas that during the performance three “girls” (or “actresses”) appeared at the back of the theatre’s stage, “nude from abdomen to the head,” standing “perfectly motionless,” with actors on both sides of them. Apparently the male actors told a number of jokes with a “double meaning.” The manager argued that the girls were arranged in the manner of statues. Moreover,...

  9. 5 From Sadomasochism to Child Pornography: Experts Narrow Their Focus While Canadian Courts Broaden Their Horizons
    (pp. 133-209)

    The emergent prosecutorial and judicial concern with images that combined sex and violence, or with graphic expressions of gay and lesbian sexuality, reflects in part a wider conservative and indeed heterosexist ideology prevalent in society to this date which conceptually links sexual intercourse with the institution of marriage (Downs 1987, 651) and species reproduction (West 1987, 691). To the extent that gay and lesbian acts of sexual expression are not procreative, and until only recently bore no relation to marriage, they have been seen as debased, or as not having any cultural value or significance. Again, these considerations help to...

  10. 6 Indecency Law: Microscopic and Macroscopic Views of the Female Breast and Lap-Dancing in the Dark
    (pp. 210-220)

    Canadian courts have traditionally applied to the law of indecency the same “community standard of tolerance” principle associated with obscenity. In the 1970s this principle was applied to a case of “streaking” in Ontario, where the nude culprit was apparently en route to buy a case of beer at the Brewers Retail store. In the 1980s certain individuals in Ontario and the Yukon Territory had the legality of their acts of “mooning” determined by the same principle. Shortly before and afterButler, however, some women in Ontario caught the attention of the entire Canadian public by exposing their breasts to...

  11. Conclusion
    (pp. 221-226)

    This book has steered a relatively rocky course through early American and Canadian constitutional review cases in order to show the doctrinal bumps and epistemological bruises that accompany obscenity law when it pulls into shore. Judges are expected merely to confirm or reject the reasonableness of a government’s apprehension that sexually explicit reading and viewing materials, and most recently those combining sex and violence, are sufficiently dangerous to the general health and welfare of society that the production and consumption of such materials need to be outlawed. Judges once felt comfortable acting as moral guardians in this respect, and in...

  12. Notes
    (pp. 227-264)
  13. Bibliography
    (pp. 265-274)
  14. List of Cases
    (pp. 275-278)
  15. Index
    (pp. 279-286)