Originally published at: https://prostasia.org/blog/how-obscenity-and-morality-undermine-freedom/
There is hardly a way to engage in the conversation around censorship, abuse prevention, and freedom of speech that doesn’t involve talking about the obscure concept of obscenity. It is “obscure” because, despite its long history, it still fails to have a distinct definition. Where other crimes can enjoy a historical evolution and growth that…
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Obscenity laws are based on irrationality and emotion! There is no justification for the prohibition of ‘obscene’ material. The idea that such material could incite or destroy culture reflects a belief that such a culture is weak and cannot withstand such utterances being spoken, as well as undermining the very freedoms we as a society depend on to maintain our individuality and plurality within a group, culture, or community.
The idea that which “normalizes” evil should be banned, especially without hard, empirical evidence supporting these claims, is an attack on our freedoms and an attack on us.
We will see the obscenity doctrine abolished within our lifetime. It is a civil rights violation, no different than Separate but Equal and the sodomy exception.
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A paradigm shift always runs the risk of appearing to be an irrelevant nuisance, possibly self-indulgent.
The principle of obscenity is not irrational, but rather, incompletely explained. It often leads to arbitrary, short-sighted and even unfair and discriminatory decisions, but it nonetheless is highly socially robust because there is no ratiocinative discourse that can replace it.
I’ve studied the philosophy of power for many years, and have come up with a fundamental analysis of its mechanisms that I call ‘lectics’ (based on the Greek λέγω, originally ‘to choose’ or gather). To cut to the chase, there are many aspects of social and personal power that depend on an inherently fragile mechanism, namely, self-fulfilling prophecy. For example, if you have ‘self-confidence,’ that is built on your own perception of your track record of doing sufficiently well in your choices, plus your bootstrapping that you’re, by nature, smart enough to do things well. If you really mess up, that whole system can be “shattered.” Nothing holds it up but memories and self-reflections that could be recast as illusions, or as out of date stuff that’s no longer valid.
Sometimes, your self-fulfilling prophecies may be helped by symbolic items. For example, you might win a trophy for being the best student in some class. This is a great prop to keep your self-fulfilling prophecy running, but it can still look completely meaningless if you later become depressed, for example. Such props are conventionally called placebos; they’re maintained by the epistemic version of what philosophers call ‘virtuous cycles,’ the opposite of ‘vicious cycles.’ Positive and negative personal self-fulfilling prophecies ('yes, I’m competent! ’ ‘Damn, I always seem to be worthless!’) are exactly virtuous and vicious cycles running in your mind.
How does this relate to obscenity? It relates because social solidarity and personal moral power are also self-fulfilling prophecy cycles, but on a much larger scale, with multiple people involved. Part of being in power is managing these cycles. Notice that in almost any crisis, top politicians will assure you that everything is under control, even when it’s not. Sometimes, they’re just engaging in wishful thinking, but even the responsible ones realize that having everyone panic would make the situation, whatever it is, that much worse. Thus ‘everything is under control’ is an attempt to maintain a virtuous cycle in the face of the problem – it’s a kind of statement that I technically call an ‘approphetic injunction.’ It mimics an assertion of fact but is actually a hopeful portrayal that starts as a so-called ‘white lie’ that is aimed at making itself true by keeping up the best resilient attitude among the public.
The people who are attached to obscenity laws are those who believe that social responsibility and the personal moral power that underlies it require turning away from self-indulgence, and making the necessary sacrifices in personal desires that allow society to pull together rather than apart. They further worry that sex, as an extremely compelling pleasure, will be the most likely factor to make individuals turn to their own indulgence instead of to social responsibility and personal social moral responsibility.
The important thing here is that there is the perception, which on some level is not wrong, that social responsibility is only maintained by placebo-effect – if you are familiar with the “clap your hands if you believe in fairies” passage in the story of Peter Pan, you can see the sort of commitment of raw belief that many people feel is needed to make society work. “Clap your hands (and put your genitals away) if you believe in society” is truly what the believers in obscenity are asking for to make the fairy of society retain its power. The analogy to something as fragile as a fairy is not awkward here. Like confidence, social cohesion can be shattered, and can fall apart into the social version of depression, where its placebos like flags and anthems seem as meaningless as old, irrelevant school trophies. The great fears of our colonialist ancestors, like depravity and degeneracy, squalor, decay and ‘fall’ as in the Roman Empire, lie in this direction.
One aspect of this system is that those who maintain obscenity laws are unable to justify them except in the most opaque and circular terms. You simply cannot say, “we are determined to maintain the multiple placebo effect of social responsibility by forcibly limiting people’s attention to their distracting personal pleasures.” And yet, consider what people will do when their personal competence is threatened. Suggest to any recognized expert that they don’t know what they’re talking about or that their expertise is not important, and you’ll likely be met with derision, irony, indignation or – and here’s a key word – signals that you have offended them. Shaking the social confidence belief system by saying “let us all run hither and thither and communicate freely about all our sex things, without limits” is a source of panic and indignation to those who are in power, trying to regulate social placebo systems. The panic and fury about this type of thing is often misplaced and overly worried about things. For example, it long supported fears about biological difference as a schismatic weakening influence – as could be seen in the days when a black and white person kissing on the lips was considered horrifyingly obscene, or when gay porn was considered far more obscene than thematically similar straight porn. Nonetheless, it can’t be fundamentally overcome by calling it irrational. It has both rational and poorly based components, but the logic of the rational components is recursive, that is, seemingly circular. It can only be circular in an attempt to maintain a ‘virtuous cycle.’ (‘Virtuous’ was actually a bad word choice for this, since such processes work both with and without moral virtue per se, and in my own writing I substitute the word ‘felicitous’.)
My project is to lay bare the circular logic within which social power processes actually work, so that the truly necessary parts, and the purely superstitious parts, that fuse together within them can be analysed and corrected.
I think any judge hypothetically listening to me as a lawyer at this point would have closed their ears, either because the discourse is too far out of left field or because they understand and hear a threat of moral collapse. I think that revision of the obscenity issue is destined to have great difficulties until more people in our world come around to the lectical paradigm.
In the meantime, it will be one side shouting “irrational and arbitrary” and the other side shouting “eek, go to jail.”
There is more on this topic in two posts in the Member’s lounge.
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I get where you’re coming from, but it still doesn’t change the fact that it’s an irrational, heinous, and ultimately unjustified act of repression. We can go back and forth on the philosophy and even psychology behind advocating for the obscenity doctrine.
My solution here is to prove their inefficacy and their harmful effects on those they manage to victimize, such was the case with Christopher Handley and Karen Fletcher, both would need a sturdy empirical basis to carry it in addition to compelling arguments.
There is simply no reason why they should still exist. The obscenity doctrine is irreconcilable with the American ideal and simply incompatible with the nature of man. It is an attempt at denying us our autonomy, a strike at the very heart of what defines the liberal ideal and seeks to impose this… ideal of sexual preference on us, many of whom would be better off choosing of our own free will than to have it forced on us.
If this idealic, romantic moral society as espoused by Plato is what they strive for, then they should know it’s not possible, and should just accept it, work with it, and allow it to exist as the free speech it is.
This moral social pressure is perhaps the worst form of cancer… it’s honestly so overwhelming that it cripples my ability to rationally combat it because of how wrong it is.
The obscenity doctrine, regardless of what content or culture it targets, is wrong. If it isn’t harming anybody by its utterance, then it’s free speech. The harm principle got it right.
We’re witnessing the creation of a new repressed group - the pedophile. I weep for them.
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Exhorted mutuality can’t, by nature, have an ‘empirical basis.’ It has an ad hoc basis that keeps going in perpetuity. If there was a Marine sergeant who insisted his corps believe that they were the best soldiers in the world, and that they must act accordingly and perform all his many drills with gusto, what difference would it make if one of the bystanders opined that there was no empirical basis for his belief that his soldiers were the best and that his drills thus worked them too hard, in defiance of the fundamental liberal ideals and the nature of man?
If you can’t show the Supreme Court judges and legislators that you understand what they’re attempting to do, but have a better solution, then you can be as vehement as you like, with no effect. The former have already explicitly ruled that obscenity is exempted from the political values you espouse. The first amendment has been hole-punched to let it through. It is considered more important than freedom. The US is a military state, and maintaining its military moral power is its highest value. You can’t write that explicitly into a Constitution, but sometimes presuppositions are stronger than text.
This isn’t the first time they’ve been wrong. The arguments presented by the previous Courts would not withstand even the most basic of scrutiny, otherwise our Constitution is meaningless.
If you discover over time that the Constitution is apparently meaningless in this case, don’t give up.