Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.
So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.
But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity doctrine, it cannot account for “pornography’s convoluted dialectic with American history.” As Michel Foucault observed, the repression of sexuality produces discourses on sexuality. Accordingly, the history of obscenity must account for both regulation and demand. Censorship created pornography by distinguishing it from art and produced a dialectic of obscenity.
The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination.
Under the dialectic of obscenity, art protected pornography, and pornography protected art. Doctrinally, the protection of art required the protection of pornography. But politically, the protection of art required the protection of pornography. Art and pornography are social categories. When the Supreme Court tried to protect art, but not pornography, it failed to recognize that those categories were in flux. Art became subversive as pornography became mainstream. As a result, many people were more offended by some of the art the Court protected than the pornography it did not, and the Court found its obscenity cases increasingly difficult to justify. Eventually, it realized that only the protection of pornography could justify the protection of art.
This article uses Flaming Creatures and the Fortas Film Festival to explain the dialectic of obscenity. Part I provides a historical overview of the obscenity doctrine. Part II describes the making and presentation of Flaming Creatures. Part III chronicles the proceedings in Jacobs v. New York. Part IV follows the Fortas nomination. Part V shows how the Fortas Film Festival illustrates the dialectic of obscenity.
Brian L. Frye, The Dialectic of Obscenity, 35 Hamline L. Rev. 229 (2012).