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What Happened to Obscenity?

The notion of obscenity has lost its subversive magic.  It once signified pornography, something in word, image or physical representation that erotically excited, that was illicit, immoral, lewd, unacceptable if not illegal, smut.  Today, obscenity is applied to a laundry-list of sex-related law-enforcement actions, often little to do with the erotically perverse.

Three recent news reports are illustrative of how term “obscenity” is now (mis)used.  One describes a Florida man getting busted for sporting an “I Eat Ass” sticker on his truck; another involves a couple having sex in a Louisiana courthouse; and a third involves a Houston County, TX, man busted for possessing too many sex toys. Numerous other stories about child pornography and sex trafficking add to an almost-endless list of “obscenity” reports.

The constitution-scholar Geoffrey Stone acknowledged in Time magazine, “the legal concept of ‘obscenity’ has largely evaporated in recent decades because of the impact of technology, most notably the Internet. Today, prosecutions for the sale, distribution, or exhibition of obscenity have virtually disappeared.”

The modern era of the prosecution of the “obscene” began in 1873 when the U.S. Congress adopted the first national censorship act, the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use. The act was promoted by Anthony Comstock (1844-1915), leader of the New York Society for the Suppression of Vice, and father of modern censorship.  He successfully promoted employing the power of the federal government — especially the Post Office — to restrict a person’s right to acquire and consume allegedly “obscene” materials, be they erotic words or images, birth-control information or contraceptive devices.

A century after the Comstock law was adopted, obscenity has essentially disappeared as an aesthetic category of the illicit. This occurred as sex was mainstreamed, becoming a multi-billion-dollar business.

Postmodern pleasures have transformed America’s sexual culture since the good-old-days of Comstock fostering the 21st-century “new normal.”  This transformation involved a number of major factors.

First, changes in female premarital sex signified increasing female sexual pleasure and empowerment. The Guttmacher Institute found that women who turned 15 years between 1954-1963, one quarter (26%) had premarital sex by age 18 years and the median age of premarital sex was 20.4 years.  For those who turned 15 years between 1994-2000, more than half (54%) had premarital sex by 18 years and the median age of premarital sex was 17.6 years. The most recent data from the CDC finds that as of 2015, 89 percent of ever-married women aged 15-44 years of age and 90 percent of men 20-44 years of age had engaged in premarital sexual intercourse.  Sex – at least among many females – has lost much of its shame.

Second, the explosive growth of the sexual marketplace reveals how sex was mainstreamed.  It includes: online porn; sex toys or paraphernalia (e.g.,devices, lubricants and costumes acquired online, at retail outlets and “passion parties”); sex work (i.e., “consensual” and trafficked); commercial settings (e.g., “gentlemen’s” clubs, “swinger” get-togethers, private s&m engagements); sex tourism (i.e., non-trafficked in the U.S.); sex-enhancement medical procedures (e.g., botox injections, breast augmentation and breast lifts); sex-enhancement drugs (e.g., Viagra, Zytenz and marijuana); public gatherings (e.g., street fairs, parades); non-commercial engagements (i.e., on-line service facilitating sexual hookups like Ashley Madison); and miscellaneous segments (e.g., Brazilian wax and Brazilian butt-lifts).

The phenomenal success of E.L. James’ Fifty Shades of Grey– with its book sequels and movie spin-offs – is illustrative of the larger changes fashioning the postmodern sexual marketplace and the erosion of obscenity.  Fifty Shades of Grey gave rise to a new adult porn genre, “mommy porn.”  In 2014, Vintage Books reported the novel and its sequels sold more than 100 million copies worldwide.  In addition, the three movies based on the series have generated a total of $1.3 billion in worldwide ticket sales, $380 million in the U.S. Kassia Wosick, a New Mexico State University sociologist, estimated the 2015 globally porn market at $97 billion and the U.S. market between $10 and $12 billion.

Porn plays a significant role in the growth and popularity of the new digital media of the Internet and streaming – and interactivity – video.  According to one estimate, there are nearly 25 million porn sites worldwide that makeup 12 percent of all websites.  Sebastian Anthony, writing for ExtremeTech, claims that porn accounts for 30 percent of all web traffic.  As expected,hereports males make up more than four-fifths (82%) of viewers while females consist in less the one-fifths (18%).  Pornhub, the biggest porn website, claims that in 2018 it distributed 33.5 billion porn videos worldwide and that it had a daily average of 92 million site visitors.  It also reports that Stormy Daniels – thanks to Pres. Trump — was the most searched for porn star of 2018.

Finally, technological innovation continues to redefine the commercial sex industry and what was long understood as obscenity.  “I think VR porn has the capacity to bring an entirely new side of porn to the masses,” proclaimed Ela Darling, the queen of VR sex.  She is the star, creative director and co-owner of VRtube.xxx and Cam4.com, two fledging VR porn companies.  “Porn is my livelihood, it’s my everything,” she blushes, “so when I come across emerging technologies, I see it through the lens of porn.”  Darling is developing what’s described as “holographic 3D porn” for Facebook’s Oculus Rift system.

VR porn may well be the next popular porn – obscene — experience.  VR technology, especially immersive porn, seeks to merge the body and fantasy, physicality with imagination, thus fashioning a sexuality that reduces – if not eliminates – the need, let alone desire, for a true sexual partner, an actual living other.  Like a bad sci-fi flick, the “real” sexual other may become an artistic memory of a world that was once but never more. As long as such porn does not involve a child and is “consensual” (however defined), it is no longer obscene.  So, obscenity has been transformed — welcome to the 21st-century’s erotic phantasmagoria.

Still other tech innovations are redefining old-fashioned sex toys — rebranded “sex wellness” products.  They include advanced, female-empowering, ergonomic vibrators; body augmentation procedures (e.g., breast enlargements); and sex-enhancement drugs (e.g., Viagra).  Human-like sex-robot bordellos are gaining in popularity among men in Europe and Japan. 

Today, Americans have easy, unprecedented access to products and services that purport to fulfill their every sexual fantasy – and they are taking full advantage of these opportunities.  Armed with the relative anonymity of a credit card, a PC or smartphone and the Internet, sex has been mainstreamed.  Sexual pleasures have become both publicly pervasive, saturating American life, while increasingly more private, permitting adults to playout their deepest fantasies – with Amazon the biggest retailer offering an estimated 60,000 sex-related products. The U.S. sex marketplace is a multi-billion-dollar enterprise serving consenting adults and age-appropriate youth.

Given all these developments, no wonder that old-fashion obscenity has essentially disappeared.