[Greta Christina] Sex—The Great Exception
From laws about free speech to social rules about polite conversation . . . why is sex the exception?
Last week, in a piece about censorship and the controversial Robert Mapplethorpe art exhibit, I talked about how William F. Buckley was offended by sadomasochistic sex: so offended that he equated it with the Holocaust. I talked about how intensely offensive I found this comparison. And I argued that, if people like Buckley are allowed to ban forms of expression that offend them — such as the Mapplethorpe exhibit — then people like me will be able to do the same with forms of expression that offend us . . . such as Buckley’s repulsive opinions.
And then I pointed out that, of course, the main difference between Mapplethorpe’s photos and Buckley’s words was that Mapplethorpe’s photos were sexually explicit, and Buckley’s words were not. So therefore, in any court of law, my “If he can ban my offensive expression, I should be able to ban his” argument would be laughed out of the room. Sexual speech does have some First Amendment protection — but not nearly as much as it should. Obscenity laws exist, and have been both applied and upheld. Recently, even. When it comes to the principle of free speech and free expression, sexually explicit content is an exception.
Which leads me to today’s question:
Why is sex an exception?
The principle of free speech is interpreted pretty darned broadly in the U.S. But there are exceptions. There are exceptions for false advertising. For violating copyright. For slander and libel. For revealing state secrets. And for talking about sex.
In other words: Sex is seen as being in a category with fraud, theft, character defamation, and treason.
Why?
What — if you’ll excuse my language — the fuck?
The whole idea of “community standards” for obscenity is another perfect example of this principle. Think about it. We don’t allow communities to set standards for any other area of expression. We don’t allow communities to set standards for expression of political opinions or religious beliefs; for musical genres or styles of poetry. But the idea that a community should be able to set its own standards for sexual expression: this, for some reason, is seen as totally normal and entirely reasonable.
Thus creating a legal situation that, if my understanding of the law is correct, would otherwise be considered untenable: a situation in which a reasonable person cannot tell ahead of time whether or not they are breaking the law. A porn producer in Los Angeles, whose product may be shipped all over the country, has no way of knowing whether the possession and sale of their video will violate the law in Bumblefuck, Tennessee. They have no way of knowing ahead of time what the legal limits are, so they can stay within them. They won’t know until after the trial. They won’t know what the crime is until after they’ve been convicted of it.
And the “I know it when I see it” obscenity principle is yet another example. Can you imagine a Supreme Court Justice saying, “I don’t know what treason is, but I know it when I see it?” “I don’t know what establishment of religion is, but I know it when I see it?” The whole point of courts is that they’re supposed to tell us what the law means. They’re not supposed to punt the question to “community standards” and to vague intuitions that we all supposedly agree on . . . except that we don’t.
But it isn’t just to obscenity laws that this exceptionalism applies. Heck, it isn’t even just laws. We have, for instance, a basic (if sometimes grudging) respect for the idea that different people have different tastes: in music and movies, food and clothing, places to live and home decor and almost every other aspect of life. But not in sex. Differing tastes in sex are still seen as a moral issue, even when they affect nobody but the people having the sex.
And we don’t even feel comfortable talking about sex, the way that — in this chatty, opinionated, “couldn’t shut us up with an industrial vice grip” country — we feel comfortable talking about almost every other aspect of our lives. Even though better information about sex broadens our sexual perspective, making for both better sex lives and greater tolerance of sexual diversity, we are still reluctant to discuss our sex lives with anyone but the people we’re having them with. We’ll talk about deeply personal, powerful things — jobs, family, food, music, drugs, travel, childhood, art, even politics and religion — but not sex. Not in any detailed way. That’s just . . . different.
Why?
I don’t actually have a good answer to this question. I do think I may have a glimmer of one: Sex makes us feel irrational, and it’s probably asking too much to expect us to behave rationally about it. Sex is a powerful force in our lives, a fundamental animal drive, and we tend to be irrational about those, to set up essentially random taboos around them to give us a feeling of control. People have a lot of fears about sex . . . and those fears can be exploited by powerful people trying to make headlines and win elections. And of course, the United States is a country founded in Puritanism, a country in which conservative religion is a powerful force . . . with both the irrationality and the fear of sex that comes with that territory.
But I don’t really have an answer.
I just want us to pay attention to the question.
I want us notice the phenomenon. Whenever we treat sex as a side of human experience that is set apart, different from all other aspects of human experience and with special rules all its own — or when we see other people treating it that way — I want us to start asking: Why?
And if we don’t have a good answer — if we can’t really come up with a good reason for why sex should be made an exception — I would like us to seriously consider knocking it off.
This entry was posted on Friday, 23 January 2009 at 12:00 am and is filed under Culture. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
on Friday, 23 January 2009 at 11:38 am Heather wrote:
I don’t know that I have an answer to your question, but I do have a personal observation. I’ve asked before why there’s a difference, and noticed how we treat the subject, even among my group of friends, which is extremely liberal and open about sexual topics. At my last birthday dinner (in a restaurant), I was given a framed poem that contained the word ‘penis.’ I started to read the poem aloud to the group, and at the word ‘penis’ I was quickly shushed. It wasn’t even until a week or so later that I asked, “Why was I shushed? What makes ‘penis’ a dirtier word than ‘elbow’ or ‘trachea,’ and thus not fit for dinner conversation?”
But even though I can’t explain it, there is a difference. Here’s perhaps a better distinction. What’s the difference between assault and sexual assault? Why is raping someone different, and (in most cultures) worse than just beating them up? Perhaps it is only because our sexuality is frightening and we want to retain more control over it than other areas of our lives. But perhaps that isn’t a bad reason in some cases. Who gets to decide which cases is the rub, but one we’re stuck with.
on Friday, 23 January 2009 at 3:54 pm More Fucking Anti-Profanity Bill Bullshit | State of Protest wrote:
[…] On a similar note, Greta Christina asks why our society and world is obsessed with putting restrictions on various manifestations of sexuality. I personally think it’s because the shitheads who come up with such restrictions are closeted homosexuals, BDSMs, pedophiles, or are just plain sexless. And they carry that down generation to generation by claiming that their God watches all the perverted little things they do, and the threat of hell is just too much for them. Moreso, though, it follows the tradition of religious hypocrisy and totalitarianism. It’s just a very effective way to control others through fear and intimidation. We really need to purge our world of this. […]
on Saturday, 24 January 2009 at 1:22 am C. L. Hanson wrote:
This special treatment of sex is irrational, but I think there is a real reason for it — and not just “people are nuts”.
The explanation is a little bit involved, but I’ve explained my theory in a short article: Why? Why? Why??? II.
on Saturday, 24 January 2009 at 3:11 pm Charlie wrote:
My suspicion is that some of it is due to the fact that sex is especially prone to shame. Not just because we live in a world that uses shame to control sexuality- we also use shame to control many other aspects of behavior. From the research that I have been doing for the last few years, I’ve come to see that there are actually some pretty deep neurological reasons for a connection between sex & shame.
Shame is a really difficult emotion to process and if we can’t process it, then the only ways to keep it at bay are to avoid or to control whatever triggers it. I see that reflected in the anti-porn laws, as well as the other examples you offer. And of course, shame ends up being transmitted from generation to generation.
So why is sex an exception? At least partly because of shame and our need to protect ourselves.
on Sunday, 25 January 2009 at 9:28 am Agnes wrote:
Looks like the only thing practically everyone agrees about is that sex is our ultimate point of vulnerability. Which it is, justly recognized. If there’s to be some sort of social system, we need to deal with it, channel its course.
Pity we’re so irrational too ;)
on Sunday, 25 January 2009 at 10:49 am G Felis wrote:
There is, I think, a legitimate distinction to be drawn between the general phenomenon of sociocultural neurosis about sexuality - which I won’t deny - and specifically limits on freedom of expression with regards to sex. There is fairly good evidence that exposure to explicit representations of sex is, to put it mildly, not good for young children. Pre-pubescent children, especially young ones, are confused and often disturbed by direct confrontations with adult sexuality, and some even act out in ways harmful to themselves and others. When a significant portion of our populace might plausibly be harmed by the content of some forms of communication/advertising/art/whatever - genuine harm, not mere knee-jerk conservative “Think of the children!” fantasies of harm - then it is reasonable to impose limitations on where/when/how that form of communication may be engaged in.
Obviously, this rationale could never justify limitations on what communication adults can choose to produce, consume, or share amongst themselves in adult-only venues. Thus it would not justify even half of the puritanical nonsense our country’s courts have enforced, past and present; but it does provide a plausible rational basis for *some* free speech limitations with regard when/where/how people should be allowed to display/broadcast explicit portrayals of sexual activity.
on Sunday, 25 January 2009 at 9:00 pm Maria wrote:
Good article!