Just what is pornography, anyway?

In 1964, Supreme Court Justice Potter Stewart said he would not define pornography but “I know it when I see it.” With all due respect to His Honor, that’s a pretty inadequate response.

I think there are two general approaches to this issue: one based on content, the other on intent. Both need to be applied to children and adults separately.

At the outset, if you are someone who equates nudity with pornography without exception, chances are you and I will never agree on much in this area. This attitude is quintessentially American (though there are other societies with similar views). We don’t have much opportunity for non-sexual nudity in this country; as a result, nudity brings with it a presumption of sex.

Among the consequences is that we get collectively bent out of shape when, for example, Janet Jackson has her breast exposed at the 2004 Super Bowl. If you were to go to the French Riviera, to pick a well-known example, you might see hundreds, maybe thousands of bare breasts on a given day. Plus: nobody would be paying any attention to them! Poor Janet probably could have sung the whole tune completely topless in a lot of European cities without anybody raising a stink.

We are mammals; women have breasts to nurture their young. Yet we are grossed out by a brief glimpse of one of our defining biological characteristics!

To me, pornography requires a broader definition, one that is not fixated on nudity alone: anything that promotes, condones, or glorifies violence toward another person; or which causes dehumanization or sexual objectification.

Note that this could be sexual but need not be. Many would argue that the Rambo/Terminator genre of movies, television programs, and video games is clearly pornographic. It is more American, however, to idolize those who glorify excessive or gratuitous violence.

A nude photograph, on the other hand, need not be violent, objectifying, or dehumanizing. Furthermore, it would be pretty easy to make highly offensive, pornographic pictures of people with all their clothes on.

For children, the rules have to be quite different, although once again, nudity is hardly the real issue. I have never seen “kiddie porn” but have read articles about it. Such pictures (or videos) invariably portray kids having sex or acting out sexually in very inappropriate ways.

If anyone were to encourage or force a child to do these things, a reasonable society would call that a serious crime, whether or not there was a photographer present. A camera makes the crime worse by providing a means for distribution,but the fundamental point here is that forcing sexual involvement on young children is wrong, period.

While it is imperative that we take steps individually and as a society to protect children from those who would harm or take advantage of them, focusing on nudity is frequently counterproductive. A great example is the situation wonderfully described by a photograph in The Century Project: Nora, 12. Well-meaning employees in photo labs in her home state were calling the cops whenever they saw pictures of naked children. The main result: they caught a lot of innocent people. In addition to the emotional turmoil, it cost Nora’s family a lot of money. But why all this trouble? They clearly did nothing wrong. The social workers assigned to the case gave Nora’s parents rave reviews. (And fortunately, their legal expenses were covered by the generosity of others.)

Here’s another example. In New Jersey, an older woman was arrested because she photographed her grandchildren playing naked in the backyard. (Don’t you feel safer now?)

Real pornographers have their own darkrooms, use Polaroids, or these days have digital cameras. No one is going to walk into a camera store with a bag full of film of kids having sex and ask to have it developed. Well intentioned or not, legislation focusing on child nudity is a complete waste of time and money.

Nora’s mother is no longer permitted to photograph her own daughter nude until she’s 18. However, I can. Her picture was even exhibited in Ohio, the jurisdiction in question, and was viewed by what appeared to be high-ranking police officers without incident. Go figure.

Most of the discussion so far has been about content: what is inthe picture. Yet clearly, the intent—the purpose of the picture—may be just as important.

The law doesn’t deal much with pornography as such. It does deal with obscenity. The famous US Supreme Court case, Miller v. California from 1973, gives guidelines for defining obscenity that are in three parts. They involve works which, taken as a whole, appeal to “prurient interest in sex”; portray sexual conduct in a “patently offensive way”; and, taken as a whole again, lack “serious literary, artistic, political, or scientific value.”A later decision (New York v. Ferber, 1982) ruled that portrayal of a “sexual performance” by persons under 16 could more readily be considered pornographic.

By these standards, The Century Project is neither obscene nor pornographic.

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