This piece was originally published on the Blowfish Blog.
Why should sex always be the exception?
From laws about free speech to social rules about polite conversation… why is sex the exception?
Yesterday, 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.
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.
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.