Happy Freedom of Information Day! This holiday was founded in 1966 to celebrate the passing of the Freedom of Information Act, the law that allowed the people to get information from the government, should they ask for it. We are free to speak, to learn, to… well, let me haul out this old chestnut:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So says the First Amendment to the Constitution of the United States of America. The Founding Fathers knew what they were talking about all those decades ago, being careful to allow the people to speak their minds. This simple sentence guarantees that we (the people) may express ourselves however we like, criticize the government as much as we can, worship however we must, and petition the government if we think they’re not doing a good enough job.
Check Out: What We Search for When We Search for Porn
Of course, as a lascivious people, we often jump straight to obscenity, cussing, pornography, and other deliciously subversive things when we think of Free Speech laws. Despite our freedom speech and of the press, smut has been attacked time and time again in this country, and it is currently not protected by the First Amendment. And while we feel that smut does have a right to be disseminated (under a deal of control, of course), arguments in favor of its proliferation don’t extend too far past “Well, it’s fun, innit?”
It also may be hard to defend obscenity because the definition has changed a lot over the years.
In 1857, the Obscene Publications Act in England defined obscenity as anything that was “to deprave and corrupt those whose minds are open to such immoral influences.” It didn’t matter if it was artistic or scientific. If someone somewhere could get off to it, it was obscene.
The infamous Comstack Law was passed in 1873, which forbade the distribution of obscenity, which included porn, contraceptives, vibrators, and the like. The definition of obscenity in the Comstock Law was very broad indeed. It involved anything that had a “dominant theme taken as a whole appeals to the prurient interest to the average person, applying contemporary community standards.” This was also the introduction of the well-hammered phrase “utterly without redeeming social importance.“
The United States adopted further laws in 1896, thanks to a case called Rosen v. United States. The definition of obscenity in that case was anything that was “to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” Very much the same as the 1857 definition.
Similar definitions were bandied about for many years. In 1957, this definition appeared: Whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.
1964 saw a rather infamous argument that was wholly subjective. Potter Stewart, when asked to define obscenity said that he couldn’t find a definition but, as he said “I know it when I see it.“
The most meticulous definition came in 1973, with the introduction of what was to be called The Miller Test (after court case Miller v. California). It read: The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Some variation of all these definitions have arisen in American courts ever since. But most obscenity cases are still loosely handled, usually beholden to the judge, the local obscenity laws of each state, and the general tone of the case. Are pictures smut? Books? Good books? Bad books? Sex toys? Mere description? Films with sex, but no nudity?
No matter what the law says, today is the day to celebrate your access to obscenity. Go out and do something obscene. But make sure it’s legal first.
Top Image: Public Domain
Witney Seibold is a contributor to the CraveOnline Film Channel, and the co-host of The B-Movies Podcast. He also contributes to Legion of Leia and to Blumhouse. You can follow him on “The Twitter” at@WitneySeibold, where he is slowly losing his mind.
