Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective
56 Colum. J. Transnat’L L. 681 (2018).
69 Pages Posted: 6 Jun 2018
Date Written: May 25, 2018
This Article surveys the development of constitutional obscenity jurisprudence in the United States, Canada, India and Japan. In the late nineteenth and early twentieth centuries, each of these jurisdictions undertook to impose restrictive Victorian standards of sexual morality on literature and the arts. In the second half of the twentieth century, their constitutional courts began seriously considering free expression claims brought by artists and writers prosecuted for obscenity. These courts have all struggled with a central paradox. Obscenity law criminalizes speech because it is offensive, but freedom of speech is an empty concept if it does not include the freedom to offend. The United States began to move away from Victorian standards after the middle of the twentieth century, replacing them with “community standards” and a promise of protection for “serious” works. Canada adopted an approach purportedly based on harm rather than morality, with results that were scarcely less repressive. Courts in India and Japan have been slow to extend protection to sexual speech. Paradoxically, in both India and Japan, nationalist prosecutors and judges have embraced imported Victorian standards of propriety as an expression of national identity, deploying them to suppress not just foreign but also indigenous works. Their narrow nationalism depends on a sanitized and incomplete picture of history, so sometimes defendants have prevailed when they could appeal to more tolerant pre-Victorian national traditions. This Article concludes that while obscenity law evidently does little to protect public morality or prevent harm, it can be a dangerous weapon in the hands of groups seeking to enforce political, social, and cultural conformity.
Keywords: obscenity, nationalism, freedom of speech, freedom of expression, censorship, sexuality, comparative constitutional law, First Amendment, United States, Canada, India, Japan
Suggested Citation: Suggested Citation