Made In America - Bill Bryson [202]
Problems of definition with regard to obscenity are notoriously thorny. In 1989, following criticism of the National Endowment for the Arts for funding exhibitions of controversial works by Robert Mapplethorpe and Andre Serrano, US Senator Jesse Helms produced a bill that would deny federal funding for programmes deemed to be obscene or indecent. The bill was interesting for being a rare attempt to provide an omnibus definition of what constituted the obscene. Among the proscribed subjects were works of art ‘including but not limited to depictions of sadomasochism, homoeroticism, the exploitation of children, or individuals engaged in sex acts; or material which denigrates the objects or beliefs of the adherents of a particular religion or non-religion; or material which denigrates, debases, or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin’. At last America had a bill that stated the precise boundaries of acceptability. Unfortunately, as critics pointed out, it was also full of holes.
Quite apart from the possibilities for abuse inherent in open ended phrases like ‘including but not limited to’ and ‘a particular religion or non-religion’, the law if followed to the letter would have made it illegal to provide funding for, among much else, Shakespeare’s Merchant of Venice, The Bacchae by Euripides, The Clouds by Aristophanes, operas by Wagner and Verdi, and paintings by Rubens, Rembrandt and Picasso. It would even have made it illegal to display the Constitution, since that document denigrates blacks by treating them as three-fifths human (for purposes of determining proportional representation). The bill was rejected and replaced by one prohibiting ‘obscene art’, again leaving it to others to determine what precisely obscene might be, and trusting that they would know it when they saw it.
State laws regarding obscenity and morality are equally – we might fairly say ridiculously – prone to ambiguity. Two things are notable about such state laws: first, how intrusive they are, and, second, how vague is the language in which they are couched. Many go so far as to proscribe certain acts (for example, oral sex) even between consenting adults, even sometimes between husband and wife. Most states have laws against fornication and even masturbation lying somewhere on their books, though you would hardly know it, such is the evasive language with which the laws are phrased. One of the most popular phrases is ‘crime against nature’ (though in California it is ‘the infamous crime against nature’ and in Indiana ‘the abominable and detestable crime against nature’), but almost never do they specify what a crime against nature is. An innocent observer could be excused for concluding that it means chopping down trees or walking on the grass.
Many others have laws against ‘self-pollution’, but again without providing a definition of what is intended by the expression. Occasionally statutes include a more explicit term like sodomy or masturbation, but often this serves only to heighten the uncertainty. Indiana, for instance, has a law, passed in 1905, which reads in part: ‘Whoever entices, allures, instigates or aids any person under the age of twenty-one (21) years to commit masturbation or self-pollution, shall be deemed guilty of sodomy.’31 If, as the law implies, masturbation and self-pollution are not the same thing, then what exactly is self-pollution? Smoking a cigarette? Failing to bathe regularly? Whatever it may be, in Indiana at least as late as the 1950s you could spend up to fourteen years in prison for it.
In those few instances where states have tried to be more carefully explicit in their statutes, they have usually ended up tying themselves in knots. Kansas, for instance, gave itself a law that made adultery in the form of vaginal intercourse illegal, but not when it involved deviant sex acts. What is certain is that most