1.4 Defining Our Central Terms

Part: 
Two
Chapter: 
1

Questions of terminology and definition have been recurring problems in our hearings and deliberations. Foremost among these definitional problems is trying to come up with some definition for the word "pornography." The range of materials to which people are likely to affix the designation "pornographic" is so broad that it is tempting to note that "pornography" seems to mean in practice any discussion or depiction of sex to which the person using the word objects. But this will not do, nor will an attempt to define "pornography" in terms of regulatory goals or condemnation. The problem with this latter strategy is that it channels the entire inquiry into a definitional question, when it would be preferable first to identify a certain type of material, and then decide what, if anything, should be done about it. We note that this strategy was that adopted by the Williams Committee in Great Britain several years ago,[4] which defined pornography as a description or depiction of sex involving the dual characteristics of (1) sexual explicitness; and (2) intent to arouse sexually. Although definitions of the sort adopted by the Williams Committee contain an admirable dose of analytic purity, they unfortunately do not reflect the extent to which the appellation "pornography" is undoubtedly pejorative. To call something "pornographic" is plainly, in modern usage, to condemn it, and thus the dilemma is before us. If we try to define the primary term of this inquiry at the outset in language that is purely descriptive, we will wind up having condemned a wide range of material that may not deserve condemnation. But if on the other hand we incorporate some determination of value into our definition, then the definition of pornography must come at the end and not the beginning of this report, and at the end and not at the beginning of our inquiry. Faced with this dilemma, the best course may be that followed by the Fraser Committee in Canada,[5] which decided that definition was simply futile. We partially follow this course, and pursuant to that have tried to minimize the use of the word "pornography" in this Report. Where we do use the term, we do not mean for it to be, for us, a statement of a conclusion, and thus in this Report a reference to material as "pornographic" means only that the material is predominantly sexually explicit and intended primarily for the purpose of sexual arousal. Whether some or all of what qualifies as pornographic under this definition should be prohibited, or even condemned, is not a question that should be answered under the guise of definition.

If using the term "pornography" is problematic, then so too must be the term "hard core pornography." If we were forced to define the term "hard core pornography," we would probably note that it refers to the extreme form of what we defined as pornography, and thus would describe material that is sexually explicit to the extreme, intended virtually exclusively to arouse, and devoid of any other apparent content or purpose. This definition may not be satisfactory, but we all feel after our work on this Commission that the late justice Stewart was more correct than he is commonly given credit for having been in saying of hard core pornography that although he could not define it, "I know it when I see it."[6] But although we are inclined to agree with justice Stewart, we regrettably note that the range of material to which witnesses before us have applied this term is far broader than we would like, and we therefore conclude that careful analysis will be served if we use this term less rather than more.

Trying to define the word "obscenity" is both more and less difficult. It is more difficult because, unlike the word "pornography," the word "obscenity" need not necessarily suggest anything about sex at all. Those who would condemn a war as "obscene" are not misusing the English language, nor are those who would describe as "obscene" the number of people killed by intoxicated drivers. Given this usage, the designation of certain sexually explicit material as "obscene" involves a judgment of moral condemnation, a judgment that has led for close to two hundred years to legal condemnation as well. But although the word "obscene" is both broader than useful here as well as being undeniably condemnatory, it has taken on a legal usage that is relevant in many places in this Report. As a result, we will here use the words "obscene" and "obscenity" in this narrower sense, to refer to material that has been or would likely be found to be obscene in the context of a judicial proceeding employing applicable legal and constitutional standards. Thus, when we refer to obscene material, we need not necessarily be condemning that material, or urging prosecution, but we are drawing on the fact that such material could now be prosecuted without offending existing authoritative interpretations of the Constitution. Numerous submissions to us have made reference to "erotica." It seems clear to us that the term as actually used is the mirror image of the broadly condemnatory use of "pornography," being employed to describe sexually explicit materials of which the user of the term approves. For some the word "erotica" describes any sexually explicit material that contains neither violence nor subordination of women, for others the term refers to almost all sexually explicit material, and for still others only material containing generally accepted artistic value qualifies as erotica. In light of this disagreement, and in light of the tendency to use the term "erotica" as a conclusion rather than a description, we again choose to avoid the term wherever possible, preferring to rely on careful description rather than terms that obscure more than advance rational consideration of difficult issues.

Various other terms, usually vituperative, have been used at times, in our proceedings and elsewhere, to describe some or all sexually explicit materials. Such terms need not be defined here, for we find it hard to see how our inquiry is advanced by the use of terms like "smut" and "filth." But we have also encountered frequent uses of the term "X-rated," and a few words about that term are appropriate here. As will be discussed in detail in the section of this Report dealing with the production of sexually explicit materials, "X" is one of the ratings of the Motion Picture Association of America (MPAA), a private organization whose ratings of films are relied upon by theaters and others to determine which films are or are not suitable for people of various ages. But the MPAA rating system is not a series of legal categories, and does not have the force of law. Although many films that carry either an "X" rating or no rating might be deemed to be legally obscene, many more would not, and it is plain that many X-rated films could not conceivably be considered legally obscene. Moreover, there is no plain connection between the words "pornographic" and "X-rated," and once again it seems clear that common usage would apply the term "pornography" to a class of films that overlaps with but is not identical to the class encompassed by the "X" rating. As a result, we avoid the term "X-rated," except insofar as we are discussing in particular the category of materials so rated in the context of the purposes behind the MPAA rating system.

Notes

  1. Report of the Home Office Committee on Obscenity and Film Censorship (Bernard Williams, Chairman) (1978)
  2. Report of the Special Committee on Pornography and Prostitution (Paul Fraser, Q.C., Chairman) (1985)
  3. Jacobellis v. Ohio, 378 U.S. 184, 197(1964) (Stewart, )., concurring).