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Sex in Context: Space, Place, and the Constitution of Images

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Abstract

This paper examines the changing context for sexual images and the spaces that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as changing contexts for encountering forbidden images from the old stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea that Lady Justice is blind.

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Notes

  1. Pornographic or pornography is meant to refer to sex related material that is prohibited. Many other terms are used by the courts for similar material: such as sexually explicit, indecent. The vernacular has even more.

  2. 553 U.S. 285 (2008) Concerning pandering in child pornography.

  3. 131 S.Ct. 2729 (2011) Concerning violent video games.

  4. Yngvesson [46]. The American pornographic film industry is centered in the San Fernando Valley of Southern California.

  5. Gray, “Dirty Dancing,” 89.

  6. The San Francisco chronicle reported a hearing on a proposed ban on private performances at strip clubs, week of August 6, 2006.

  7. Rose and Valverde [35].

  8. Walter Benjamin’s “Arcades Project” tells us of the importance of spaces as an aspect of material culture. Here spaces and law are discussed as aspects of identity, the constitution of identity.

  9. This essay was planned as covering one of a series on the paradoxes of “blind justice.” See People v. Wayman, 2008 WL 681337 (Illinois App. 5th Dist., March 10, 2008, #5-05-0559).

  10. Macaulay [27].

  11. Ouroussoff [33], writing about architectural choices in New Orleans after Hurricane Katrina, “Katrina’s Legacy: Theme Park or Cookie Cutter? The New York Times B1 October 18.

  12. Justice Potter Stewart in Jacobellis v. Ohio 378 US 184 (1964).

  13. Thompson [41].

  14. Hay [21] Albion’s Fatal Tree. See also Taylor [40], Winch [43], Wittgenstein [44].

  15. But see Bourdieu [5], Coombe [10], Ellickson [14], Salyer [36].

  16. Downs [13].

  17. Gray, “Dirty Dancing,” 87–89.

  18. MacKinnon [30].

  19. Nead [32].

  20. (London: John Murray, 1956).

  21. Id. at 357.

  22. Or, hopefully, the scholar.

  23. Roth v. United States, 354 U.S. 376 (1957).

  24. Douzinas [11].

  25. When I first encountered their book in a class I once taught on the images of law, “Visualizing Justice,” it seemed over stated. It is challenging to talk about not seeing and that challenge continues throughout the collection. In Nead’s discussion of pornography there are other challenges, such as seeming the class dimensions constituting what is forbidden.

  26. Brigham and Harrington [8].

  27. Hart [20]. See also Lacey [25].

  28. The seeming paradox (and annoyance) of the police officer hiding in order to enforce the law is actually consistent with the absent face of law.

  29. Sarat [37].

  30. McCarthy [28].

  31. Stanley v. Georgia, 394 U.S. 557 (1969).

  32. See arrest of Mr. Grenier in Amherst for possession of pornography November 28, 2006.

  33. See also, American Libraries Assn. v. Pataki [48] in which the US District Court for the Southern District of New York enjoined a New York State Statute providing for local pornography prosecution based on the Commerce Clause of the US Constitution.

  34. New York v. Ferber 458 U.S.747 (1982); Osborne v. Ohio 495 U.S. 103 (1990).

  35. Barnes v. Glen Theater, Inc. 501 U.S. 560 (1991).

  36. E.g., Cohen v. California, 403 U.S. 15 (1971). Broadcast speech, because of the way it comes into one’s life and the access children have to it, has ''the most limited First Amendment protection'' of all forms of communication. On the radio and TV, non-obscene but indecent language may be curtailed. [FCC v. Pacifica Foundation, 438 U.S. 726, 748 [54].

  37. 521 U.S. 844 (1997).

  38. Title V of the Telecommunications Act.

  39. See also U.S. v. Playboy (2000) overturned a federal law that would have required cable TV operators to either completely scramble the signals for pay-porn channels or show the programs from 10 pm to 6 am.

  40. FCC v. Pacifica Foundation, 438 U. S. 726 (1978).

  41. "Brigham [7].

  42. It also drew from their distinctive professional opinion as articulated in the brief, Brief of Appellees American Library Association, et al. United States of America, et al., Appellants, v. American Library Association, Inc., et al., Appellees. On Appeal from the United States District Court for the Eastern District of Pennsylvania http://www.ala.org/cipa/meritsbrief.pdf.

  43. Enacted 1996, Reauthorized 2003 [62], Reauthorized 2003.

  44. Young [47].

  45. Id., 15.

  46. Id., 74.

  47. Young, 50. Being familiar with the intimate confessional mode that Young uses I must say I feel challenged in writing about her work since my perception is of a friend or colleague who is way too clever.

  48. Foucault [17].

  49. Johnson [22].

  50. Klare [24].

  51. Robert Gordon, Alan Hunt, Lucy Salyer.

  52. Duncan Kennedy.

  53. Ashcroft v. Free Speech Coalition 535 US 564 (2002) and Ashcroft v. American Civil Liberties Union [51] which upheld the Child Online Protection Act (COPA).

  54. Law and the Image, 61.

  55. The sort of paradox that Chappelle calls our attention to in law is that what may not be seen by the ordinary citizen has to be seen by the law in order to make sure that seeing it can be forbidden.

  56. Scholars such as Richard Mohr and David Tait have helped us to understand the social dynamics of courtrooms by joining postmodern theory, semiotics and social science. Mohr has focused on such things as the relative height of the judicial bench in modern courts and what it says about the authority of the judge. Tait has looked at small claims courts with attention to the manner in which judicial authority is maintained where there is little in the way of professional distance. See also, Garapon [18].

  57. Rawding [34]. See also Brigham and Rawding [9].

  58. New York: Basic Books, 1999.

  59. He also makes a number of silly ones like about the potential catastrophe of Y2 K.

  60. Lessig, 4. “We reject: kings, presidents and voting. We believe in: rough consensus and running code.” From Borsook [4]: 3.10 at http://www.wired.com/wired/archive/3.

  61. As Mitchell [31] puts it, this code is cyberspace’s “law.” William J. Mitchell, City of Bits: Space, Place, and the Infobahn (Cambridge: MIT Press, 1996) 111. See also Katsh [23]. Boyle [6].

  62. Id., 5.

  63. Id. at 134.

  64. McHugh [29].

  65. Id. McHugh describes Google as using “100 or so closely guarded algorithms to determine its search results.” “PageRank” is best known and it “allocates relevancy to a page according to the number and importance of pages linked to it.”

  66. Id. at 132. In May of 2002, Google took a text ad for the Body Shop off Google because the owner had called John Malkovich a “vomitous worm” in her blog. Google is also regularly attacked in google-watch.org and discussed in geek.com.

  67. In his Introduction he states that “that teachers and critics (primarily journalists and academics outside law school)” are “devoted to a complex group of intellectual and political ideas” which he calls “the ideology of involvement” and “intellectual jurisprudence.” Strauber, 2.

  68. Id.

  69. Id.

  70. Tushnet, 1.

  71. Id.

  72. The movie seemed to be what we meant by pornographic in the early 1960s. Its possession we believed constituted a crime. We also knew that it was dangerous to possess it in some more general ways that have much to do with the social stigma. The movie would not be pornographic today although that is only part of the point of the reference to it here.

  73. Writing two decades ago, the satirist David Lodge described the irrelevance of the massive repositories of knowledge that characterize the university structure. He suggested that travel and improved communication would change the structure of authority. He was writing about the academy but what he described is as true for governments. “The day of the individual campus has passed. It belongs to an obsolete technology—railways and the printing press. Lodge [26].

  74. Reading the March 20, 2006 issue of The New Yorker on an airplane I was a little surprised to come upon the full page spread of Playboy centerfolds in the article by Acocella [1]. It changed the dynamic of how I held the magazine.

  75. Lori Beth Way, “[O]ne of the things I spoke about is the inability for women to control how their images are portrayed. Many times what might be fairly unobjectionable images (e.g. a nude woman) is framed by incredibly degrading comments. Relatedly, terms like whore, bitch, slut are consistently used to refer to women. An Internet search for naked college women reveals fairly few hits but naked college whores or sluts produces thousands.” Email, Dec. 6, 2005.

  76. DOJ press release May 14, 2004.

  77. Townshend was investigated in 2003 for signing on to a website that contained childe pornography.

  78. Pornography prosecution, like that for any socially unacceptable behavior, is damaging even without a conviction. The indictment of former Newsday publisher Robert Johnson for having child pornography on his computer was widely announced by the Internet news source Findlaw (http://news.findlaw.com/hdocs/docs/chldprn/usjhnsn62805ind.pdf).

  79. Goodrich [19].

  80. Bonsignore [3].

  81. Taylor [40] “Interpretation…”; Wittgenstein, Investigations.

  82. Stanek [39], www.priestsforlife.org/resources/abortionimages/stanekgraphics.html.

  83. Yngvesson [45]. See also Silbey and Ewick [38].

  84. Feldman [15].

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Cases

  1. American Libraries Assn. v. Pataki, 969 F. Supp. 160 (S.D. N.Y. 1997).

  2. Appellees American Library Association, et al. United States of America, et al., Appellants, v. American Library Association, Inc., et al., Appellees. On Appeal from the United States District Court for the Eastern District of Pennsylvania http://www.ala.org/cipa/meritsbrief.pdf.

  3. Ashcroft v. Free Speech Coalition, 535 US 564 (2002).

  4. Ashcroft v. American Civil Liberties Union, (2004) which upheld the Child Online Protection Act (COPA).

  5. Barnes v. Glen Theater, Inc. 501 U.S. 560 (1991).

  6. Cohen v. California, 403 U.S. 15 (1971).

  7. FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).

  8. New York v. Ferber, 458 U.S.747 (1982).

  9. Osborne v. Ohio, 495 U.S. 103 (1990).

  10. People v. Wayman, 2008 WL 681337 (Illinois App. 5th Dist., March 10, 2008, #5-05-0559).

  11. Roth v. United States, 354 U.S. 376 (1957).

  12. Stanley v. Georgia, 394 U.S. 557 (1969).

  13. U.S. v. Playboy, 529 U.S. 803 (2000).

Statutes

  1. Title V of the Telecommunications Act.

  2. Enacted 1996, Reauthorized 2003.

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Acknowledgments

The author would like to thank the panel discussants Bradley C. Canon and Judith A. Baer, and to Lori Beth Way and Sarah Marusek. Nathan Rawding’s work on librarians deepened my understanding of some of the themes developed here.

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  1. Department of Political Science, University of Massachusetts, Amherst, MA, USA

    John Brigham

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Brigham, J. Sex in Context: Space, Place, and the Constitution of Images. Int J Semiot Law 27, 47–63 (2014). https://doi.org/10.1007/s11196-013-9319-8

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