Keeping it dirty: Defining and redefining obscenity in American judicial discourse, 1873--2007

This study argues that, to understand the sources of the modern preoccupation with obscenity, we need to understand how claims of harms, constructions of victims and offenders and broader moral governance objectives given by the transition from disciplinarian to risk-based governance articulate in judicial opinion. The study employed grounded theory analysis on 1,823 federal judicial opinions between 1873 and 2007. The analysis identified five main categories of harm: (1) socialization harms, (2) harms of intrusion, (3) harms of defilement, (4) harms of inducement, and (5) ecological harms. Harms of socialization refer to a faulty transmission of cultural capital and a breakdown in norm learning. They are distinctly disciplinarian harms organized around main complaints against the bad thoughts and habits induced by exposure to obscene content. Harms of intrusion refer to harms ensuing from intrusion into an individual's privacy. These harms construct offenders as "panderers", guilty not as much of ill motive as of excess. Harms of defilement justify the creation of offenders as disciplinary typologies of deviance and are handled with the rhetoric of disgust. Harms of inducement, more visible in the context of licensing and zoning regulation, refer to direct effects of obscenity on individual conduct; the main claim is that exposure to obscenity or pornography will induce anti-social behavior in certain categories of individuals. Finally, ecological harms refer to harms distributed not onto individuals, but on social units whether particular locales, urban spaces or markets. Harms in this category have a distinct (but not exclusive) economic dimension, but may include a host of other social problems indirectly caused by providers of pornographic content, such as increased health risks or criminality. Ecological harms inaugurated risk-based regulatory strategies focused on risk minimization through the implementation of global social environmental controls, as well as strategies of risk-spreading and liability-shifting. Articulation between disciplinary assumptions and risk-based rationales in judicial discourse produced a type of hybrid discourse easily appropriated by conservative judges to tighten regulatory controls over sexual content at the detriment of First Amendment liberties.