Throughout history, people have represented sexuality in literature and art. However, pornography, in the early twenty-first century use of the term, did not emerge as a mass industry until the late 1950s. It eventually broke into mainstream distribution outlets and had grown to a business estimated at $12 billion a year in the United States by the end of the twentieth century, with increasing acceptance in U.S. culture. While still proscribed by law in a variety of ways and considered unacceptable in many circles, pornography is used more openly, while at the same time pop culture has adopted many of the conventions of pornography.
State and federal laws in the United States uses the term obscenity, rather than pornography, to describe sexual material that can be regulated. Obscenity prosecutions in the United States were infrequent and uncontroversial in the eighteenth century and early nineteenth century. After the Civil War, obscenity became a more public issue, largely due to the work of Anthony Comstock and other conservative religious crusaders. Obscenity became increasingly politicized in the United States in the twentieth century, particularly when literary works such as James Joyce’s Ulysses (1922) were kept out of the country.
In 1957 in Roth v. United States, the Supreme Court first stated clearly that obscenity was outside the protection of the First Amendment, kicking off a string of cases in which the Court wrestled with how to define and regulate obscenity. In the 1973 Miller v. California decision, the Supreme Court established a three-part test for identifying obscenity, defining it as: (1) material that appeals to the prurient interest; (2) material that portrays sexual conduct in a patently offensive way; and (3) material that does not have serious literary, artistic, political, or scientific value. Further the Court identified contemporary community standards as the measure of evaluation. In decisions since Miller, the Supreme Court has upheld the constitutionality of zoning ordinances that restrict adult theaters and the use of racketeering statutes against businesses that sell obscene materials.
A separate category is child pornography, which comprises material that is either made using children or, in the digital age, made through the use of technology that makes it appear that the sexual activity portrayed involves children. The former is illegal (under New York v. Ferber, 1982); the status of the latter remains uncertain (see Ashcroft v. Free Speech Coalition [2002], in which the Court ruled that the section of the Child Pornography Prevention Act of 1996 that banned "virtual" child pornography was unconstitutional, calling it too broad in its scope).
Indecency, a term from radio and television broadcasting, defines a broader category that can be regulated. Indecent material is defined as language or material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. The Federal Communications Commission administers indecency regulations.
Obscenity laws tend to be enforced in places where there is political support from citizens. This prosecutorial discretion means that material for sale openly in one jurisdiction may not be available in another. However, the availability of mail-order and computer pornography means that graphic, sexually explicit material can now be obtained easily anywhere in the United States. As the enforcement of legal prohibitions has lessened, a formerly underground industry with ties to organized crime has become a routine business with its own trade magazine, Adult Video News.
The term used most often in the public debate over sexually explicit material is pornography. This term is not rooted in law and has no commonly accepted definition. It is sometimes used as a generic term for commercially produced, sexually explicit books, magazines, movies, and Internet sites, with a distinction commonly made between soft-core material (nudity with limited sexual activity that does not include penetration) and hard-core material (graphic images of actual, not simulated, sexual activity including penetration). In other contexts the term is juxtaposed to erotica, defined as material that depicts sexual behavior with mutuality and respect. Pornography, in contrast, is material depicting sex involving domination or degradation. In laboratory studies of pornography’s effects, three categories of pornography have been created: overtly violent, nonviolent but degrading, and sexually explicit but neither violent nor degrading.
Up until the 1970s, debates over pornography pitted liberal advocates of sexual freedom against conservative proponents of traditional sexual morality. That dynamic changed with the feminist critique of pornography, which emerged out of the larger struggle against sexual violence during the second wave of the women’s movement in the 1960s. Feminist critics argued that discussions of the issue should focus not on questions of subjective sexual mores but on the harm to women. Pornography, they claimed, harmed all women, not just those used in pornographic material.
