Prurience, Obscenity, & Covid-19

When Law & Morality Become Unethical

Originally Published via Medium.com on April 4, 2020

Photo via Unsplash.com

With several businesses across the nation shutting down due to the COVID-19 pandemic, many Americans have found themselves in the midst of financial duress. Unemployment sites are overloaded and BBC reports that, as of March 28th, over 6.6 million people have filed for unemployment assistance. While many may qualify for this temporary aid, unemployment insurance benefits aren’t extended to independent contractors or the self-employed, leaving many to rely on third-party relief funds and grants.

Thankfully, some measure of relief can be expected with the implementation of the CARES Act, which aims to provide Americans with stimulus checks to help keep them afloat during the crisis. Meanwhile, those individuals ineligible for UI are waiting on the implementation of the Pandemic Unemployment Assistance Program. Temporary assistance can be sought through the SBA, in the meantime.

Independent Contractors can attempt to obtain a load through the SBA (via application)

Affected small businesses are encouraged to apply for loans via the SBA’s Economic Injury Disaster Loan Program. However, a recent article published by the Huffpost points out that, due to a clause from 1995, the “SBA has determined that it may exclude small businesses engaging in lawful activities of an obscene, pornographic, or prurient sexual nature” from receiving crucial aid.

Further exploration reveals that, while the original literature claims that the SBA “may exclude” said businesses and entities, the first section of the SBA application confirms that, not only does this restriction apply, but will automatically result in ineligibility, even going so far as to expand its restrictions to encompass any “applicant [who presents] live performances of a prurient sexual nature or derive[s] directly or indirectly more than de minimis gross revenue through the sale of products or services, or the presentation of any depictions or displays, of a prurient sexual nature.” Considering the term prurient refers to all things “marked by or arousing an unwholesome sexual interest or desire,” it seems evident that the given requisite appears to be specifically structured in order to exclude those in the Sex Work or Adult Industry.

Businesses and individuals that fall under the broad umbrella of the legal Adult Industry include pornography performers, directors, and producers, as well as exotic dancers/entertainers, strip club employees (wait staff, management, bouncers, etc.), bikini baristas, sex-line telephone operators, cybersex operators, cam models, erotic novelists, editors of erotic publications, sex toy manufacturers, sex shop employees or managers, software developers, sales personnel, the list goes on to include all auxiliary members of the industry, often overlooked. One article also mentions sex therapists in their list of the possibly affected. However, using the Miller testfor obscenity, therapists would likely be covered under the 3rd criteria, which grants the title of “obscene” only to work devoid of any “literary, artistic, or scientific value.” Thus, a sex therapist may legally argue the value of their work with relative ease, whereas the other aforementioned parties may find themselves unable to effectively do so, given the current definition.

Regardless, the SBA’s imposed restriction leaves many tax paying Americans devoid of crucial financial relief under questionable pretense. Subjective ideas of “value” and terms like “prurience” being thrown around as grounds for legislative restrictions on life-sustaining aid verges on the unethical.

While sex workers are no strangers to modifying the language used in official documentations in order to avoid stigma and discrimination, the fact that said stigmas still persist in the first place is an glaring issue — one that, undoubtedly, has revealed its ugly countenance in the form of the Prurient Clause. Indeed, there is a disturbing subtext behind the SBA’s restriction, and for those in the industry, the message here seems clear: their value is only inherent insomuch as it provides profit to supplement the economy. Meanwhile, the value of their livelihoods and well-being in the midsts of a national crisis have been rendered, literally, non-applicable.

Understandably, several voices from both within the industry and outside of it are already beginning to cry out in response to the SBA’s controversial restriction:

“Jobs denied unemployment apparently include service, tech entrepreneurship, digital media, entertainment, and manufacturing. Each of these would be unquestionably legitimate fields of work, at least unless anywhere in proximity to the word ‘sex.’ This both obvious and clumsy vilification of workers based on fundamentalist and sexist ideals holds no rational validity. There’s no place for policy that would willingly cause economic injury to the American worker by denying them income that was good enough to collect but too dirty to reimburse” -Devon Scott, Wilmington NC community organizer, mayoral candidate

Shannon [redacted], who works retail at a nation-wide chain, now classified as an essential business in her state, finds issue with the “discriminatory” clause. “The government has zero problem collecting taxes on wages earned from sex work,” she argues, “These people are just as entitled to aid as the next person!” While Shannon herself has never been involved in the industry, she agrees that the restriction, as well as the clause behind it, are doing more harm than good.

With the ongoing restrictions being placed upon all businesses during the pandemic, the impacts are being felt everywhere. It is important that sex workers and those in the industry obtain the same protections being offered to the rest of the population. In order for that to happen, problematic legislature such as the Prurience Clause needs to be challenged.

(Note: For the sake of this publication, “Prurient Clause” will be used in reference to the terms defined in the Miller Test, as utilized in the SBA restriction).

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Miller v. California: Understanding Obscenity

In order to effectively produce an argument against the “Prurience Clause,” it is important to understand the nature of its inception. The reference to prurience found in the SBA’s regulation is directly linked to several legal battles concerning the classification and definition of obscenity. In order to determine if a work in question qualifies as obscene, certain “legal tests” are implemented. The most recent of these, used today, is the Miller Test, derived from Miller v. California (1973). Medium author, Meagan Day, has written an excellent article illuminating the history surrounding the landmark trial.

To summarize: in 1973, Marvin Miller of California mailed sexually explicit brochures advertising his mail-order content to several people in an attempt to advertise his business. One of the recipients, upon opening one of Miller’s brochures and finding pornographic material inside, contacted the police and had Miller brought to trial. He was charged with distribution of obscene material as defined by California’s law at the time. Miller contested this verdict, appealing all the way to the Supreme Court. As Day writes, “he was in luck,” because, as it turns out, “the Court was looking for an opportunity to settle an internal disagreement.”

Day further explains that, “The California law under which Miller had been prosecuted was based on previous Supreme Court cases, which ruled that obscenity was not protected by the First Amendment and sought to define it.” Part of the justices, including Chief Justice Warren Burger, tried pushing for a looser definition of obscenity in order to grant governments more “leeway to ban obscene materials.” Others, such as Justice William J. Brennan Jr., pushed to protect all obscene material unless distributed to minors and non-consenting adults. Ultimately, the ruling favored Burger over Brennan, 5–4.

Subsequently, the Miller test became the standard implementation for all matters involving obscenity.

The three-pronged standard of measure yielded from Miller v. California states, in layman’s terms, that a work is deemed obscene if:

1. The average person, in accordance to community standards of the time, finds the overall work in question appealing to prurient interest.

2. The work in question entails offensive sexual conduct, as defined by the applicable state law.

3. The work, taken as a whole, lack serious literary, artistic, political, or scientific value.

Defining the Issues: Jacobellis v. Ohio (1964)

The cover for the controversial French film, Les Amants.

Whether referring to Roth v. The United states, Memoirs v. Massachusetts, Miller v. California, or any other court case involving obscenity, there has been confusion on exactly which works qualify for constitutional protection under the First Amendment and which do not, even in accordance to the legal tests put in place by the judicial system. Usually, it is left up to the state to decide how to further classify obscenity on a case-by-case basis, as long as the regulations set by Miller are abided by.

However, in the attempt to decide what levels of obscenity are valuable and protected, which provide no value and are thus unprotected, which are criminal, or even what constitutes as prurient, where, exactly, are the lines drawn?

In the case of Jacobellis v. Ohio (1964), movie theater manager, Nico Jacobellis, was charged with obscenity after showing the french film, Les Amants (or, The Lovers), in his cinema. Upon contesting the verdict at the Supreme Court, six justices ultimately found the film not to be obscene. But while they all agreed that the Jacobellis shouldn’t be persecuted, they differed as to the reasons why. The justices “wrote four concurring opinions, none of which gained the support of more than two members.”

“Where, exactly, are the lines drawn?”

Justice William Brennan Jr. found that The Lovers as a whole did not fit the definition according to the Roth test, which was the active measure at the time. According to David L. Hudson Jr., writer for MTSU’s First Amendment Encyclopedia, the Roth test determines if a work is obscene by “whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

Two other justices appealed to the idea that “the First Amendment doesn’t allow for censorship of any kind.”

However, it is the explanation offered by Justice Potter Stewart that best exemplifies the most egregious issue at play. Stewart posited that only “hardcore pornography” should fall under the lines of obscene, going on to admit that he couldn’t offer a clarification on what, exactly, constituted as hardcore. “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” The difficulty expressed by Justice Stewart is a window into the fundamental problems lying behind the Prurience Clause.

As mentioned earlier, the Miller test has three requirements:

1. The first calls upon the community standard of the time. However, as Ronald Steiner (MTSU) points out, “while the Court explained that the concept of community standards does not refer to any national standards, it essentially left trial courts and juries free to decide based on whatever definition their community thought appropriate.”

2. The second raises the concern against “offensive” work without clear definitions as to what denotes as offensive. Clearly, it is intended for the operant definition to rely on the discretion of the court.

3. Finally, the third requires a judgement call based on perceived value.

The problem at hand here is that there is a fundamentally subjective morality being presented in the guise of objective law.

It is virtually impossible to take a subjective ideal and make it objective. It is certainly unwise if not unlawful to do so in any socio-political spectrum, especially one that utilizes only a percentage of its constituent’s morality in order to define it. In reference to the Prurience Clause as utilized in the SBA’s regulations, one concerned party writes, “it simply isn’t objective enough to be legitimate policy, and as a consequence negatively targets taxpayers with as much a right as any other to receive assistance that should exist without ideological bias.”

Without clearly set criterion to abide by, the decisions on what’s valuable, appropriate, offensive, and standard are left in the hands of a select few whom, in the eyes of many, don’t represent them. Sex workers, especially, have no adequate contemporary representation in policy.

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The Problem with Prurience

The term prurience itself is problematic. Roth attempted to distinguish sex from obscenity, claiming that “sex and obscenity are not synonymous.” The text goes on to clarify that, “obscene material …deals with sex in a manner appealing to prurient interest — i.e., material having a tendency to excite lustful thoughts.” Again, the matter of subjective opinion masquerading as objective law comes to bare. After all, what’s arousing to some may not be arousing to others. Even still, beyond that, a bigger question begs to be asked:

Why is there animosity against hedonistic sexuality to begin with?

Statistical abstracts provided by the US census from 2008 show that a majority of Americans self-identify as some manner of Christian. The Pew Research Center reports that according to their 2019 survey, 65% of Americans describe themselves as Christian — a decline, they note, of 12% from the previous year.

Even taking a cursory look at America’s history, it is impossible to deny the relationship between sex and religion in the US, specifically the influence of Christianity. When the Puritan settlers colonized in America, they brought with them their system of beliefs, including those pertaining to sexual practice. Since then, the influence of Christianity has permeated into much of western society.

Works such as Hugh B. Urban’s Magia Sexualis: Sex, Magic, and Liberation in Modern Esotericism trace the relationship between the West’s fascination with sex in relation to the ever-shifting socio-political environment. Within his work, there are several accounts of the church’s vilification of questionable parties through allegations of perverse sexuality.

“According to the classic witch-hunter’s manual, the Malleus Maleficarum (1486), sin first came to human beings through sexual intercourse, and thus it is the primary avenue through which the devil can work: ‘since the first corruption of sin by which man became the slave of the devil came to us through the act of generation, therefore greater power is allowed by God to the devil in this act than in all others.’” (p.38)

It is from this same school of thought that the idea of sexual abstinence and modesty being equated with purity derives. With it, comes the inevitable byproduct of sexual shame. A perfect example of this can be found in Terry Gross’s interview with Linda Klein, as heard on NPR’s Fresh Air. Countless additional examples of sexual shaming within Christian communities can also be referenced.

Understanding this perspective, then, it makes sense how sex can be separated from the obscene — that which is pure, and that which is prurient. Thus, it can be effectively argued that the Prurient Clause derives from ideals favoring or catering to specifically Christian logos. While it can certainly be agreed that personal religious preferences should be respected, there is also a stern argument to be made on whether these ideals have any place in formal law.

The separation of church and state, as exhibited in the wake of Everson v. Board of Education, asserts that, among other mandates, the government cannot “aid or prefer one religion over another, [nor] aid or prefer religion over nonreligion.” The view of prurience as an inherently negative quality, then, needs to be reexamined for validity under a more contemporary, secular lens. One that, perhaps, better reflects the community standard of today.

Moving Forward: Reframe, Restructure

La Maja Desnuda by, Francisco Goya. Public domain (via wikimedia commons)

Even if the prurience portion of the clause is removed, the business of defining obscenity still lingers.

Miller frames the legal definition of obscenity as works “[lacking in] serious literary, artistic, political, or scientific value.” The Miller definition is, in short, an indictment that sexually evocative works provide no cultural value. It would be egregiously incorrect to deny the cultural value of sex work and sex industries based on their sexual nature if only because human sexuality is an inseparable component of human culture. Our relationship with sexuality is, in fact, one of the foremost active and important conversations in our modern socio-political landscapes, thus demonstrating its cultural relevance.

Having hence disqualified the notion that sexuality diminishes value, we can ask the question of whether there is a serious contribution of value. In regards to the aforementioned conversations, both our expression of those themes through sexually-related media and our acknowledgement of them through industry products and services remain informative tools in that conversation. As at least one article by the Business Insider explains, the Porn industry has been a significant underlying force propelling innovations in technology.

The remaining qualification, then, would be whether the sexual content in question could be considered offensive. Unfortunately, this term suffers from the aforementioned pitfalls of subjective opinion.

Is a definition for obscenity even necessary? While the first impulse may be to reject the utility of a proper denotation, it bares mentioning that there are cases where this information may be required. For example, criminal cases dealing with child pornography or “Snuff” style films could make use of a legal definition. Criminal obscenity, then, could potentially be defined as:

1. That which does not contain the explicit, informed consent of all parties involved. 2. Any sexual act involving a minor. 3. Acts that significantly jeopardize the livelihood of all parties involved.

By using phrasing that removes the need for subjective opinion and instead sets clear delineations, a clear picture of where the parameters lie manifests. These parameters do not concern themselves with defining a moral standard of sex based on religious ideals of purity, but rather a moral standard based on inalienable human rights. Rather than entertaining a law aimed at the hinderance of sexual content at large, this definition allows for sex work to be a validated field while simultaneously protecting that allowance from possible abuse. In the event that sex work became decriminalized in the states, this type of clause could also serve to protect those affected by illegal dealings from within the sex industry — i.e. sex trafficking.

Situations involving non-criminal obscenity, such as decisions on what depictions of sex are appropriate for public consumption, could also serve to benefit. First, it must be noted that the continued use of the term “obscenity” in this case no longer seems appropriate. If lewd sexual content is not to be regarded as inherently unacceptable, then it doesn’t follow to continue using language that propagates that notion. Substituting “obscene” with “explicit,” instead, seems to be more fitting jargon.

In this case, William J. Brennan Jr. seems to be on the right track with his initial move to protect all non-obscene expressions of sexual work under the First Amendment as long as it doesn’t affect minors and is distributed consensually. Part of what this could entail can already be seen in the forms of content warnings before shows containing sexual scenes and pornographic websites. Following this guideline, the basic laws concerning sexually explicit material/content could read as follows:

1. Sexually explicit content can not be willfully distributed in any fashion to minors. 2. Sexually explicit material must be presented/distributed only to consenting parties. 3. Wherein “sexually explicit” is defined as content involving graphic depictions of sexual acts.

From there, varying levels of graphic depiction can be identified, categorized, and the proper platforms for them designated. Here is an example format for these categories, in the case of filmed media:

Level 1 (Mild): content depicts insinuated sexual intercourse. Includes no nudity, no exposure of genitalia. Level 2 (Moderate): content depicts sexual intercourse. Includes some nudity, no exposure of genitalia. Level 3 (Intermediate): content depicts graphic sexual intercourse. Includes full nudity, but no exposure of genitalia. No visible insertion or oral acts present. Level 4 (Strong): content depicts graphic sexual intercourse. Includes nudity, exposure of genitalia. Visible insertion and/or oral acts present. Level 5 (“Hardcore”): content depicts extreme graphic sexual intercourse. Includes nudity, exposure of genitalia. Visible insertion and/or oral acts present. Contains acts considered in excess or outside of conventional sexual practice.

Using this example, programs containing intermediate graphic sexual content, such as Game of Thrones, could be permitted with proper disclaimers to air on the more accessible streaming platforms, whereas the more explicit contents of Porn Hub, ensconcing Levels 4–5, can remain behind the slightly more stringent security offered online. These regulations would help ensure that “hardcore content,” no longer such an abstract concept, wouldn’t legally air on public media. Of course, the given examples are only suggestions meant to spark progressive thought and conversation.

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Relief

Photo by Caleb Wright, via Unsplash

With the stipulation of prurience being retired, and obscenity more manageably regarded as degrees of explicitness, we’ve created what can potentially serve as a universal language for the validation of sex work and sex industry products and services, and the reasonable and legal practice of both. While this is in and of itself a valuable demonstration of examination, it is also evidence of the biased and puritanical nature of the existing SBA policy. The argument of prurience is indefensible at best, archaic at worst, and has very real consequences in the lives of the millions of taxpayers working in and directly adjacent to the sex industry, as clearly demonstrated by recent events.

Hopefully this work has helped to inform and illuminate what remains as a lingering smudge on the lantern of US law. However, in the famous words of a popular PSA, “Knowing is half the battle.” If legislative changes are to be made, action must to be taken by concerned parties. Petitions must be crafted, letters sent to corresponding state representatives, and awareness spread. Organizations dedicated to the decriminalization of sex work, such as Decrim NOW! and the Sex Worker Outreach Program are already spearheading movements aimed at removing harmful rhetoric such as the Prurient Clause from continuing to disenfranchise those involved in the Sex Industry. Together, steps can be taken in order to reframe outdated perspectives, restructure those laws no longer serving the interest of the people, and offer relief to all who need it.