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Degradation: What the History of Obscenity Tells Us about Hate Speech

Kevin W. Saunders
Copyright Date: 2011
Published by: NYU Press
Pages: 255
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  • Book Info
    Book Description:

    Throughout history obscenity has not really been about sex but about degradation. Sexual depictions have been suppressed when they were seen as lowering the status of humans, furthering our distance from the gods or God and moving us toward the animals. In the current era, when we recognize ourselves and both humans and animals, sexual depiction has lost some of its sting. Its degrading role has been replaced by hate speech that distances groups, whether based on race, ethnicity, gender, or sexual orientation, not only from God but from humanity to a subhuman level. In this original study of the relationship between obscenity and hate speech, First Amendment specialist Kevin W. Saunders traces the legal trajectory of degradation as it moved from sexual depiction to hateful speech. Looking closely at hate speech in several arenas, including racist, homophobic, and sexist speech in the workplace, classroom, and other real-life scenarios, Saunders posits that if hate speech is today's conceptual equivalent of obscenity, then the body of law that dictated obscenity might shed some much-needed light on what may or may not qualify as punishable hate speech.

    eISBN: 978-0-8147-0875-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. 1 Introduction
    (pp. 1-6)

    This book is ultimately about hate speech. That may not be obvious from the first half, which is a discussion of the history of how societies have accepted pornographic depictions or have rejected those depictions through lists of banned books or antiobscenity laws. Yet obscenity is a useful way to talk about racist, sexist, or homophobic speech. It stands as a sort of metaphor for hate speech, but like the best of the metaphors for hate speech, it is something more than simply a metaphor. In order to see this, we need to examine what bans on obscenity, or other...

  5. 2 Pornography, Life, and the Gods in the Greek and Roman Eras
    (pp. 7-26)

    The noted journalist and author David Loth begins his discussion of pornography in the ancient world by saying, “For as long as man has had literature he has had pornography but most of the time he didn’t know it. Among the ancients sex was unashamedly joyous, in reading as in practice.”¹ Although the passage applies to even older civilizations, Loth is also addressing the Greek and Roman worlds. The point might be made instead by saying that, though there was a recognition that the material was pornographic, there was none of the shame or disapproval that is the hallmark of...

  6. 3 The Arrival of Christianity
    (pp. 27-48)

    With the arrival of Christianity, Europe faced a profound change in the nature of God. For the Greeks and the Romans there had been a host of gods and goddesses, who were in many respects like humans. They had healthy appetites for food, drink, and sex. With a multitude of gods, there was interaction not only between gods and humans but also among the gods. Those interactions had a great deal of similarity to interactions among humans and even to some degree among the animals, and there was not a great chasm between the gods and humanity, or again even...

  7. 4 The Modern Era
    (pp. 49-74)

    When cutting such wide swaths—thus far roughly a millennium long—through European history, it is difficult to decide when one era has ended and another begun. Some eras may have specific start dates: it seems reasonable, for example, to consider the Reformation to have begun on October 31, 1517, in Wittenberg, Germany, when Martin Luther nailed his Ninety-Five Theses to a church door. Other important eras are more difficult to pin down, and the era for a modern analysis of obscenity is one of that class.

    Ian Moulton sees a demarcation for this purpose in the Industrial Revolution or...

  8. 5 A Look at Other Cultures
    (pp. 75-98)

    The material laid out so far makes a case for the concept of sexual obscenity’s being tied to the relationship between humans and God or the gods on the one hand and humans and the animals on the other, but it has done so totally within the context of a Western culture born in Greece and eventually extending to the United States. If the thesis is correct, it should hold true in cultures outside that Eurocentric analysis. This chapter, though necessarily more shallow in its analysis, looks at obscenity in several other cultures. The Hindu culture of precolonial India provides...

  9. 6 What about Hate Speech?
    (pp. 99-122)

    Now that we have examined the concept of obscenity, what should that tell us about hate speech? Before turning to that question, it should be noted that one does not have to accept the argument as developed so far to find the remaining material relevant. That is, one may conclude that obscenity is only about sexual depiction and has nothing to do with degradation. If so, the move from the regulation of obscenity to the regulation of hate speech may not seem justified. After all, although hate speech is degrading, it need not be sexual in its nature. Nonetheless, obscenity,...

  10. 7 Using Obscenity Doctrine to Address Hate Speech
    (pp. 123-146)

    The current U.S. test for obscenity was set forth by the Supreme Court in the 1973 caseMiller v. California.¹ There the Court noted that it had already recognized a legitimate state interest in prohibiting the distribution or exhibition of obscene material when there was a significant danger of offense to unwilling recipients or exposure to children.² InMillerthe Court set about defining such obscene material.³ In determining whether material depicting or describing sexual conduct is obscene, the Court said that

    [t]he basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community...

  11. 8 Applications
    (pp. 147-166)

    This chapter applies the test developed in the preceding chapter to a number of examples. The examples flesh out the abstract analytical structure already presented. In most of the examples, the suggested conclusion is that the speech presented was not hate speech. That should not be taken as an indication that I do not have concerns over hate speech. Examples in which the speech should be considered hateful are numerous, ranging from the Nazi march in Skokie, Illinois, through cross burning, to an individual’s referring to a coworker using racial epithets or a driver’s shouting such words at a group...

  12. 9 Variable Obscenity, Children, and Hate
    (pp. 167-192)

    Richard Delgado and Jean Stefancic argue in their bookUnderstanding Words That Woundthat children require special protection from hate speech.¹ They present that argument from the point of view of the minority child, who is “particularly susceptible to the wounds words can inflict.”² Through hate speech, they note, young minorities are taught to hate themselves, as evidenced by stories of children trying to “scrub the color out of their skin.”³ Young children have fewer coping mechanisms, and they may simply become angry. Even more damaging, they may internalize the sentiments expressed.

    Nonminority children can also be hurt by views...

  13. 10 Conclusion
    (pp. 193-196)

    In February 2009, Eric Holder, the Attorney General of the United States, delivered a speech to employees at the Justice Department marking Black History Month. In the speech he called for a conversation on race and said that the United States is “a nation of cowards” in the discussion of racial matters.¹ The speech may be seen as repeating a similar call by nowpresident Barack Obama, who during the Democratic presidential primary season “urged the nation to break ‘a racial stalemate we’ve been stuck in for years’ and bemoaned the ‘chasm of misunderstanding that exists between the races.’”² This book...

  14. Notes
    (pp. 197-234)
  15. Index
    (pp. 235-242)
  16. About the Author
    (pp. 243-243)