Defining the obscene
|By Brian Bienkowski|
MSU professor’s new book takes on that challenge by examining how hate speech is the new obscenity
As the Jan. 8 shooting rampage in Tucson brought political rancor and vitriolic discourse to the forefront of our national dialogue, Michigan State University law Professor Kevin Saunders was bringing his own research and analysis of hate speech to the public.
Saunders’ new book, “Degradation: What the history of obscenity tells us about hate speech,” explores the linkages between hate speech and obscenity. Saunders argues that obscenity is defined by the degradation of others — not by sex. And because hate speech is the most degrading form of speech, hate speech fits the definition of obscene.
Saunders, the Charles Clarke Chair in constitutional law at MSU’s College of Law, posits that hate speech is the “modern obscenity” because of its dehumanizing effects. Hate speech usually disparages others on the basis of race or sexual orientation; while obscenity — at least legally — has traditionally been used to describe words, images and actions of an explicit sexual nature.
Released on Jan. 18 by New York University Press, the book doesn’t call for increased regulations of speech, but seeks to provide some definition of hate speech. And Saunders’ research is attracting attention nationwide.
“It’s an interesting and innovative way of looking at hate speech,” said Richard Delgado, a professor at the Seattle University School of Law and a leading commentator on race in the U.S. “You’ve traditionally had the First Amendment absolutists versus the equality folks; Saunders offers a way out of that impasse.”
Saunders also looks at how spiritual traditions impact the way obscenity is regulated.
“Obscenity standards, in monotheistic cultures, originated in trying to suppress sexual depictions that separated us from the divine,” Saunders said. “Now, as we’ve grown more comfortable with sexuality, the obscenity laws have reflected that.”
He found that monotheistic (the belief in one God) and polytheistic (the belief in multiple gods) cultures have disparate notions of obscenity. Polytheistic cultures have historically viewed the gods as sexual creatures and, therefore, have been far more tolerant of depictions of a sexual nature. Monotheistic cultures, on the other hand, do not tend to link sexuality with their God, so human sexuality has been viewed as less than divinity.
This monotheistic view had a direct impact on early obscenity laws, Saunders said. These first regulations were largely adopted to protect the clergy’s image as one that is close to God.
But in the late 1800s, the number of obscenity statutes in the U.S. spiked. This was in response to the tepid acceptance of evolutionary theories and the recognition of the “animal side of our behavior,” Saunders said.
Historically, cultures that viewed pornography as degrading were more likely to find it obscene. Demeaning hate speech can be viewed as the modern manifestation of this obscenity definition.
The U.S. Supreme Court measures obscenity with the Miller Test. Established in 1973, the test determines whether speech or expression appeals to the “prurient interest,” offensively depicts sexual conduct and whether it lacks intrinsic value. Speech is considered obscene if it meets each of those criteria. However, these criteria can vary by jurisdiction and over time, in effect creating no uniform definition of obscenity.
Saunders developed his own adaptation of the Miller Test that he hopes can dissect language to determine exactly what offends people and to eliminate gut-level responses to hate speech. The test analyzes whether the speech degrades people below the level of humanity, is offensive under community standards and whether it carries any value.
“Saunders’ test should at least give pause to the argument that we cannot regulate hate speech,” Delgado said. “It requires a focus on the language and to see how hate speech is similar or dissimilar to current restrictions.”
Hate speech can reflect ideas, even political ideas, despite the fact