The Volokh Conspiracy

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'Sex and the Constitution': Sexual expression before the moralists invented obscenity


For Part 3 of this series drawing on excerpts from my new book, "Sex and the Constitution," I thought a bit of history on the concept of obscenity might be fun:

From the early 19th century to the present, moral and religious concerns over sexually-oriented expression have played a central role in legal and constitutional debates about freedom of speech in the United States. In ancient times, though, sexual explicitness in drama, poetry, art and sculpture was not considered offensive, shameful or harmful. Although Greece and Rome punished seditious, blasphemous and heretical expression, they did not punish expression because it was "obscene."

After the rise of Christianity, censorship on religious grounds became more prevalent, but for more than a thousand years neither the Church nor the state censored sexual expression because it was thought to be obscene. Indeed, the English language did not even have a definitive word for offensive sexual expression until the 16th century, and even then the word – "bawdy" – did not have a negative connotation. Bawdy ballads, poems and plays might have offended some people, but they were not thought to present a problem appropriate for official intervention.

In the Middle Ages, a wide range of sexually-explicit fables, or fabliaux, were shared with great joy in taverns, around campfires, and in castles. The fabliaux were short tales, usually in verse, frequently dealing with sex. Most often, they involved a man and a woman, not married to one another, and the woman's husband, who was cuckolded, and "usually deserved to be." The unmarried man was often a lusty priest or a member of the lower classes. The woman was typically portrayed as an unscrupulous, querulous and shameless deceiver. The purpose of the fabliaux was to entertain, and the more ludicrous the sex, the greater the humor. The fabliaux freely employed profanity, pornography and scatology.

Two centuries later, the Renaissance produced its own share of sexually explicit literature. The most influential author of erotic writings during this era was Pietro Aretino, an Italian poet and satirist who was one of the most versatile writers of the 16th century. Aretino's "Ragionamenti," written in about 1535 in Venice, is a serious work of comedy that mocked the pretensions of Renaissance society.

In "The School of Whoredom," a part of "Ragionamenti," Nanna, an experienced whore, passes on to her eager young daughter, Pippa, the tricks of the trade. Like any mother, Nanna wants the best for her daughter. She teaches Pippa that their chosen profession is an art whose skills must be mastered. In one scene, Nanna explains to Pippa how her patron "will begin fondling your [t-], shoving his entire face in as if to drink from them, and then he'll slide his hands down your body, little by little, to reach your little [c-]. After a few little pats, he'll start feeling your thighs, and since your buttocks act like a magnet, they'll soon draw his hand." The ultimate lesson was that, for the pleasure of anal sex, the patron would eagerly pay a substantial premium.

By the 16th century, the English Crown came to be increasingly concerned about the dangers of unrestrained publication, which had been made possible by Johannes Gutenberg's invention of the printing press. In 1557, the Crown incorporated the Stationers' Company "for the protection of … readers of books." The royal charter declared it unlawful for any person to set up a printing press without a license and empowered the Stationers' Company to seize and burn any book published without a license and to order the imprisonment of any person who published a book without its imprimatur. But the state at this time still had no interest in obscenity. It authorized the denial of licenses only for books that were seditious, blasphemous, or heretical.

This indifference to sexually explicit expression reflected then-prevailing standards. The Elizabethans delighted in "coarse and robust humor." In the latter part of Elizabeth's reign, however, the Puritans began demanding a stricter set of sexual standards. In 1580, the Puritan leader William Lambarde drafted a bill to restrain "licentious" publications. Lambarde's bill would have prohibited the publication of "books, pamphlets, songs and other works" intended to promote the "art of making lascivious ungodly love." Lambarde argued that such publications triggered "the high displeasure of God" and encouraged the "corruption of common life and manners." The bill reflected the growing discomfort of moralists with the rapid spread of erotic material. But Lambarde's proposal was rejected by the Elizabethan Parliament.

As in England, bookstores in colonial America contained an "amazing variety of erotica." Although they could not quite replicate the breadth or depth of the stock of their London counterparts, Americans could find pretty much whatever they wanted. A broad range of bawdy humor was sold by hawkers throughout the colonies, and sexually explicit tracts were especially popular.

Books printed in the American colonies regularly addressed such topics as seduction, premarital sex, adultery, and prostitution. "Father Abraham's Almanack" was in the vanguard in publishing tales of sexual intrigue. Such pieces as "Written to a Friend after a Debauch" and "Of the Pleasures of Libertines" depicted a permissive and free-wheeling attitude toward sex and introduced readers to the new "urban pleasure culture." In short, 18th-century Americans had access to "all the erotica their European contemporaries were reading."

It is striking that were no prosecutions for obscenity during the entire colonial era. All of the colonies had laws against blasphemy and heresy, but sexual materials were left alone. Throughout the colonial era, the distribution, exhibition and possession of pornographic material was not thought to be any of the state's business. Indeed, the first obscenity prosecution in the United States did not occur until well into the 19th century, during the height of the Second Great Awakening, when the moralists finally took control.