How did the obscenity/pornography laws change in the last 20 years?

October 31, 2008 8:54 PM

Adult magazines and pay cable channels can now show more. Did the laws change, did society change, or both?

I remember "reading" Hustler and Penthouse around 1990. Back then, magazines couldn't show any kind of penetration - and the editors said so. A few years later, I had the Playboy Channel, and they, too, couldn't show penetration.

Now, those same magazines show the complete sex act, including penetration, and even ejaculation. The Playboy Channel shows entire sex scenes except, strangely enough, ejaculation.

I assume we have the internet to thank for this. My question is, how did it happen? Not why, but how?

Did Congress change the laws of obscenity? Did the FCC change them? Were Playboy, Penthouse et al self-policing, and they simply decided to show more once they faced competition from the web?

I don't remember any sort of big news event such as a headline like "Hustler To Show Penetration For The First Time." As far as I can remember in those youthful days, the change came slowly -- first a woman could be shown penetrating herself, then the photos could discreetly show some penetration by a man, and then it was anything goes.

This interests me not just for prurient reasons but also because of the censorship implications. If the government can make something legal that easily, can it also make something illegal? And if it was legal all along, why did the industry move so slowly? Did porn on the web destroy all the barriers that Larry Flynt couldn't?

I understand this topic is provocative and the mods are watching. Let's try to keep this a legalistic discussion and not a debate for or against pornography.

posted by anonymous to Law & Government (12 answers total)

The wide variety of and ease of access to Internet pornography has probably put a lot of financial pressure on print and video to sell spicier stuff, in order to keep sales numbers up. And if you're not internet-based, you probably have to balance what you're doing against the risk that the current government will pull an Ed Meese/John Ashcroft on you, which depends on the hypocrisy of whoever is in charge at a given time. It's easier to pull up stakes and disappear with the Internet, because it's more electrons and less paperwork, while the FBI can charge in with guns a-blazin' where there's physical capital, e.g., print shops and disc duplication facilities, etc.
posted by Blazecock Pileon at 9:25 PM on October 31, 2008

...Ed Meese/John Ashcroft...

Don't forget Tipper Gore and the PRMC.
posted by Confess, Fletch at 9:42 PM on October 31, 2008

Did the laws change, did society change, or both?

Remember, Miller vs. Calif. takes a three-pronged approach. In order to be considered "obscene" (obscenity is illegal, pornography is not), all of the three must apply:

— the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
— the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions[1] specifically defined by applicable state law; and
— the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

My guess is that the difference you've witnessed goes along with the first prong. The average person's standards have changed. Specifically, people are less sensitized to this stuff. All it takes is one borderline work to push the limit just enough so that works following it can take their own tiny steps towards a change in definition.
posted by Brittanie at 9:52 PM on October 31, 2008 [1 favorite]

Magazines were free to show whatever they wanted, in 1990 and today (with the exception of child pornography, which is illegal in the US). The reason they chose not to show certain things in the past that they now show is, as Brittanie says, they probably feel like they run less risk of violating various local obscenity statutes (i.e. the same work could potentially be deemed obscene in State A, but not in State B, just ask 2 Live Crew). And quite probably advertisers' attitudes have changed as well (you're not going to show penetration if none of your advertisers want to be associated with those kid of images).

In much the same vein, basic cable channels like MTV, VH1, A&E, etc, *could* have all the swearing and nudity they wanted, as they are not legally bound to the FCC's indecency rules. They choose to bleep/edit content in order to appease advertisers and, presumably the public.
posted by DiscourseMarker at 11:52 PM on October 31, 2008

The laws haven't changed, but I remember reading how the porn industry itself has become more diffuse, moving out of Hollywood and into other states. Apparently Florida now has a thriving porn industry. For some reason they can get away with everything, up to fisting, so long as the last knuckle of the thumb isn't inserted...

Bonus points to Brittanie for doing a nice little outline of Miller vs. Calif.

Also, child porn isn't illegal because it's obscene, DiscourseMarker, it's illegal because it's illegal. If it were only obscene, it would be legal under some circumstances, in some areas...
posted by wfrgms at 12:01 AM on November 1, 2008

wfrgms, I didn't mean to imply that I was lumping child porn in with obscenity, it was just there to qualify the statement that magazines could print whatever they want; child porn and obscenity are separate classes of content, neither of which is protected by the First Amendment.
posted by DiscourseMarker at 12:21 AM on November 1, 2008

obscenity is illegal, pornography is not

IANAL, but I would rephrase that as "obscenity is unprotected speech, porno is not".
posted by troy at 1:44 AM on November 1, 2008

Seconding Brittanie and the 'average person' argument - the internet has made it much easier to de-sensitize aforementioned 'average person' to thinking something is more accepted / normal. What's interesting to note is that the culture may be the culprit for having it on the minds of it's people even when not sitting in front of the computer. How many American TV shows are dedicated to showing a celebrity's indiscretions, how much weight they've lost, drug worries, being pregnant, cellulite, and so on? That sort of effect of knowing so much about those in the public eye may well contribute to the desensitization. Music is much the same way - take the raciest song from the mid-to-late 90's and put it against anything on the radio today.

In the end, I believe advertisers - not the government - will hold ultimate control on how much is shown / portrayed / performed, or how much is bleeped out. Anyone not playing by the rules will find no one wanting to advertise with them... In contrast, we've already seen through the DMCA, Prohibition, and perhaps the drinking-at-21-is-legal law that the majority of people determine whether something should actually be treated as an illegal act.
posted by chrisinseoul at 3:12 AM on November 1, 2008

from wikipedia:

In 1998 Penthouse decided to change its format and began featuring sexually explicit pictures (i.e., actual oral, vaginal and anal penetration). It also began to regularly feature pictorials of female models urinating, which, until then, had been considered a defining limit of illegal obscenity as distinguished from legal pornography.

The new owners significantly softened the content of the magazine starting with the January 2005 issue. Penthouse no longer showed genitalia, real or simulated sex, or other hardcore content. While this change allowed the return of a limited number of mainstream advertisers to the magazine, it has not significantly raised the number of subscribers; total circulation is still below 350,000. Some critics have even suggested that the softening of content may have hurt sales.

For some reason someone I worked with in 1998 thought this was a very big deal.
posted by K.P. at 5:15 AM on November 1, 2008

I think another factor is simply lack of political support or clear motive for enforcement. Arguably a lot of the pornography on the net and in print is unprotected speech. But if nobody is passing laws and nobody is writing the checks to enforce them, publishers can do whatever they want.
posted by norabarnacl3 at 6:34 AM on November 1, 2008

Penthouse no longer shows genitalia? That seems to be going too far in the other direction, if you ask me. Playboy was showing full frontal nudity in the early 80's.

I find this topic very interesting. Does anyone know of a list -- or could we Mefites put one together -- of famous "firsts" in pornography? Women shown urinating in 1998 seems like a major event, as does the first issue in which Playboy, for example, went from topless to full frontal.

Also, I wonder which magazine, and which issue, was the first to show intercourse, anal, ejaculation, etc. Is there a Wikipedia entry for that?
posted by Flying Saucer at 3:25 PM on November 1, 2008 [1 favorite]

"If the government can make something legal that easily, can it also make something illegal?"

"No man’s life, liberty, or property are safe while the Legislature is in session”
- Mark Twain
posted by Effigy2000 at 8:01 PM on November 1, 2008