Abstract
This essay argues that U.S. judicial decisions in obscenity cases at the beginning of the twentieth century reveal a systematic social process of emotion management that supported, in ways not previously recognized, the emotional culture of the middle class and, through it, middle-class status policy. Using a grounded theory analysis on a sample of 256 U.S. federal judicial opinions between 1873 and 1956, the analysis shows how the evidentiary rules developed by judges in anti-obscenity cases at the turn of the twentieth century were actually “feeling rules” meant to penalize lust, assert social control over women via normative shame, and define normalcy as self-control over inner life.
Despite the colossal amount of scholarship on the legal obscenity doctrine, the specific harms it seeks to protect against and the nature of the moral danger behind them still resist clear articulation. 2 The idea of moral harm might seem a logical starting point to inquire about the governance objectives furthered by controlling obscenity: indeed, the regulation of obscenity belongs to that area of policies controlling the “dangerous habits and desires” of the citizens, in short, policies that occupy the oft-invoked field of the “moral.” But analytically the field of morality policies is rather badly specified, 3 particularly if assumed to have an existence independent of the normative discourses that shape over time the meaning and rationalities of specific moral values. It is precisely the historical and cultural fluidity of what it means to be moral that has plagued the doctrine of obscenity for more than a century.
“One man’s vulgarity is another’s lyric” 4 is not just a judicial bon mot, to be quoted often when denouncing the difficult task of defining obscenity. It is also a good motto for an epistemological stand wherein the idea of moral regulation is reworked to emphasize the institutional conditions conducive of the specific moral frames used to define obscenity as a public problem. In other words, it is not a universal, “real” notion of moral harm that explains the admittedly controversial endurance of the doctrine of obscenity. 5 Rather, it is the treatment of obscenity at particular times that gives us a lens into the ever negotiated, never fixed meaning of morality and its discursive linkages with societal good, the means and rationales for implementing it, the ensuing forms of cooperation and resistance and criteria of success – in short, the relationship between versions of morality and forms of governance. It is this aspect of obscenity regulation that still invites in-depth, historical analysis. Consequently, the overarching questions that inspired this analysis address how judicial decision-making articulated obscenity control to particular ideals of good governance.
This essay focuses on the pre-Roth period in federal obscenity litigation, a period in which the modern tests of obscenity emerged out of the common law attempts to define a workable set of evidentiary criteria to distinguish between obscene and non-obscene artifacts. The essay illuminates a period in the history of media censorship that is too often glossed-over as the outcome of irrational moral crusades, rather than given serious attention for the processes of social control that it institutionalized. I argue that U.S. judicial decisions in obscenity cases at the beginning of the twentieth century reveal a systematic social process of emotion management which supported, in ways not previously recognized, the emotional culture of the middle class. This essay establishes the relevance of the sociological-dramaturgical perspective of emotions in policy analysis by showing how hegemonic emotion cultures become tools for implementing class-related visions of moral governance.
The law is often regarded as a coercive mechanism to regulate behaviors, rather than inner lives. To the contrary, here I show that at the end of the nineteenth century, judicial discourse in obscenity cases engaged quite extensively the individual training of emotions, thereby linking specific emotion norms as tools of self-control to the objectives of state governance epitomized by middle-class values. Thus, by creating pragmatic feeling rules 6 meant to function as evidence in identifying obscenity, federal judges contributed to the development of a hegemonic emotion culture that supported middle-class control by normalizing self-control over inner life as a regulatory mechanism. The analysis will also reveal how judges relaxed the emotion norms regarding individuals’ self-control in the first half of the twentieth century and developed stereotypes of normalcy that included sexual desires.
Throughout, I will use “governance” in the rather specialized sense introduced by Foucault 7 and understand moral governance as an extension of Foucault’s notion of disciplinarian power, namely, power whose aim is to align individual behavior to norms: the organized training strategies and punitive processes characterizing a disciplinarian social order thus result in the individual internalization of “truths” supportive of those standards. 8 Moral governance in this sense suggests not only the collection of tactics, strategies and technologies for defining and managing “good conduct” in light of specific aims; it also suggests a strategic pressure on the individual to naturalize cultural and political premises, to identify “truths” – seemingly obvious and universal beliefs – that rationalize support for a certain version of social order. Thus, morality becomes a mechanism of power amplification insofar as it conditions an individual’s view of right and wrong in a way that makes sense within a certain version of normalcy. 9
The essay proceeds in several stages. First, I will explore several theoretical connections between emotional cultures, group identity and social control. Next, I will discuss the method of analysis and the historical context in which the first actively enforced U.S. anti-obscenity law passed. I will then use a sample of judicial opinions to examine how emotion norms, in particular lust and shame, were developed as evidentiary criteria in obscenity cases under normative judicial assumptions about normalcy, identity and inner life control. The analysis illustrates how the set of feeling rules developed by judges initially supported the middle class ethos, but evolved into a more permissive treatment of lust as a necessary component of individuality. Finally, I will discuss the observed changes in the judicial strategies as a possible entry point into a study of today’s emotion politics.
I. Emotional culture
The study of emotions has a long tradition of research in social psychology, neuropsychology, sociology and other social sciences. 10 This essay adopts a dramaturgical approach to emotions: unlike psychosocial approaches to emotions, which acknowledge the biological and psychological bases of individual affects, the dramaturgical approach regards emotions as cultural constructs related to social structures. 11 After a brief presentation of the approach, I will discuss the notion of emotional culture and its connections to social structures and social determinants such as gender, occupation groups, and class. This exposition argues that the development of hegemonic emotion ideologies around group identity is an important tool of social control. To demonstrate, the analysis section reveals how the state via the agency of federal judges has generated or supported emotion norms as policy tools.
As Clifford Geertz noted, emotions, as much as ideas, are cultural artifacts as well as media of socialization. 12 Similarly, the sociological-dramaturgical framework approaches emotions as constructs that give meaning to social encounters by connecting cultural scripts to internal states and social performance. The point is not to bracket the biological aspect of emotions, but to acknowledge that their meaning is socially constructed. Social actors translate body states using cultural scripts specific to particular times, cultures and social determinants; in turn, those interpretive frames shape experience and give meaning to social interaction. 13
Emotions play multiple functions during social encounters. For the Self, emotions signal the implications of an encounter and filter out the cues that seem irrelevant to one’s interpretation of a situation. 14 For the Other, emotions are the currency of social encounters, insofar as emotions signal one’s orientation towards an encounter partner: emotions are the cultural code that writes one’s inner life on one’s body in terms that others may see and understand. 15 Emotions felt and projected also signal the relative social place of the persons interacting, and therefore play crucial roles in micropolitics. 16 Consequently, emotions are important for directing social action and giving it meaning.
The patterned nature of the use and display of emotions in social interactions suggests that emotions are organized at a macro level into emotional cultures. 17 Emotional cultures include vocabularies of emotions, underlying assumptions about how emotions work, and normative specifications about what to feel and when and how to display those feelings. 18
Of particular interest here are the emotion norms. Societies develop emotion norms governing the experience and display of emotions. By means of emotion norms, cultural scripts specify what emotions to be experienced in a particular social situation, as well their intensity and duration. 19 Emotion norms resemble “zoning regulations” in that they define an area of “normalcy” for a particular social context. 20 Sociologists distinguish two categories of emotion norms: feeling rules and display rules. Feeling rules are socially-shared cultural scripts that specify both the type and intensity of emotions an individual ought to experience in various situations. Every social role comes with social expectations: feeling rules supposedly delineate the emotions appropriate to the social role performed by the social actor at a particular time. 21 Therefore, feeling rules are most obvious in the tension that an individual perceives between what she feels and what she “ought to” feel. 22 In contrast, display rules specify the appropriate expression of emotions in particular social situations. 23 Like feeling rules, display rules regulate the range, intensity and duration of emotional expressions, but are embodied in the social actor’s public performance and thus are observable by all. 24
Emotion norms are important tools of social control: they prompt individual self-reflection and self-criticism, expressed as shame and embarrassment, and they generate calls to account in others. 25 In order to align their public performance to their inner feelings, social actors monitor themselves and intervene in their inner life through a process of emotion management or “emotion work” in order to evoke or suppress feelings in accordance with the norms of particular social situations. 26 Therefore, emotion norms naturalize predominant notions of “normalcy” and prompt individual alignment to that standard. The organization of emotion norms into emotional cultures or group-specific subcultures connects the micro level of every-day “encounters” and the macro level of social structures and institutions that regulate individual interactions in predictable ways.
By analogy with Bourdieu’s cultural capital, 27 emotional subcultures – the set of emotional resources, such as emotional management skills, rules about emotion display and emotion ties – may be considered emotional capital which families built over time and transmit to their young. 28 Just as cultural capital is the accumulated cultural knowledge transmitted to individuals through socialization, emotional capital is by extension the accumulated knowledge of emotion skills, emotion norms and emotion beliefs that families instill and reinforce in individuals. The socialization of emotions is “the process by which a cultural vocabulary of sentiments becomes an interpretive resource of individuals.” 29 Through emotional socialization, individuals also learn to associate particular situations with particular bodily sensations according to an acquired and widely-shared “emotional logic.” 30 One learns, for example, that an accelerated heart rate and clenching of the teeth indicate anger, and also that anger is the appropriate response to mistreatment. Thus, through socialization, individuals learn not only the names for bodily feelings, but also that certain emotions are “logically necessary” ingredients of particular situations. The emotional logic, in addition to other “framing rules” that actors use to interpret social situations, help actors to make sense of ambiguous feelings and decide on an appropriate course of action. 31
The analogy of emotional capital to cultural capital is important because it suggests that, just as differences in cultural capital legitimize social inequalities, the reproduction of emotional capital through socialization may also sustain gender, status (as defined through occupational prestige) and class inequalities. In this extended framework, class distinction pertains not only to the different emotional resources valued by each class, but also to the different patterns whereby emotional resources are transmitted and put to use. 32 First, possessing a certain kind of emotional capital identifies individuals as belonging to particular social categories and thus confers the level of power and status associated with them. 33 In regard to class differences, one of Norbert Elias’s significant insights is that civilité, the complex of behaviors and attitudes through which the upper classes in early modern Europe asserted their superiority, included not only rules of behavior but also access to a new emotional culture that advanced the thresholds of shame and disgust and removed the display of passions from public view. 34 In regard to differences across occupational groups, research shows how different occupations encourage different emotion norms. 35
Second, socialization processes, which teach children their social identity and prepare them for the future their caregivers deem most likely, emphasize differentially the transmission of emotional capital. 36 Research on the differences between the middle classes and the working classes in respect to educational and occupational attainment supports this conclusion. For example, studies of child rearing have hinted at differences between the socialization of the middle class child, which emphasizes emotion management and emotional sanctions, and the socialization of the working class child, which emphasizes behavior control. 37 Similarly, Hochschild’s later work shows how different emotional subcultures form around gender and produce different “gender strategies” of emotion management. 38 In sum, when viewed as emotional capital, an emotional subculture may legitimize social stratification, just like other types of capitals do. 39
Although initial work defined emotional capital as belonging to the private sphere, 40 the analogy with cultural capital highlights the fact that the institutionalization of hegemonic emotional capital as emotion ideology is a central ingredient in reproducing social inequality. Institutions such as the school and the church promote particular emotion norms and compel actors to manage their emotions in specific ways. 41 Moreover, institutions intervene in individuals’ inner lives through feeling rules that define “expectations regarding private or internal experience” in relation to moral values. 42 The crucial implication of this observation is that one of the central tasks – and organized strategies of governance – of both of traditional moral regulatory institutions such as the church, the school, modern psychiatric institutions and self-help industries, and of popular media is to formulate veritable grammars of acceptable emotions and rules of intervention on permissible and impermissible passions. 43 Therefore, to reframe the purpose of this essay, the task of the analysis is to clarify how emotion rules specific to certain social groups became normative for the entire society through institutional action – in this case, judicial intervention. The relationship between emotional subcultures understood as emotional capital, social structures, and power supports the argument that the successful development of a new emotional subculture is an instrument of normative control.
The centrality of emotion norms as tools of moral governance is not particularly surprising. After all, emotions are important performative resources in social life indelibly related to the individual’s self-assertion as social entity and his or her assertion of belonging. What is surprising, however, is how long it took for legal scholarship to acknowledge the role of emotion in judicial decision-making, either, as Bandes notes, because of the endurance of the positivist myth of objective justice, 44 or, as Posner asserts, because, until recently, normative legal theory was not equipped with suitable methodologies to identify the relationships between emotions and law. 45 However, in the past decade, considerable scholarship emerged addressing how emotions intersect judicial decision-making at every stage of the process. 46 With particular emphasis on judges, research shows that the emotional reactions of judges may mitigate their evaluation of a crime 47 or the size/nature of victim compensation; 48 assumptions about emotions influence judicial interpretation; 49 in the courtroom, judges manage the emotions of juries, litigants, victims or attorneys. 50 Such scholarship has both a valuable descriptive and explicative role, but also normative implication, insofar as it inquires if and how emotions ought to inform judicial deliberation in a healthy democracy. 51 Importantly, joining interdisciplinary research on emotion ideologies embedded in social structures, 52 recent legal scholarship has started to analyze the mutual dependence of emotional subcultures developed in the judicial context and their supporting social arrangements. 53 This essay joins that tradition both by highlighting the role of and processes whereby governing bodies such as the judiciary sanction class-specific emotion norms and codify them into the authoritative texts, and by providing a useful methodology for judicial discourse analysis. The implication of the analysis is that judicial texts can be read not only as indexes of change in the emotional culture of a society, as Gordon pointed out, but also as most importantly vehicles for the state legitimization of particular emotional norms. 54
II. Method
The analysis in the next section is part of a larger project that tracked the discourse of U.S. federal judges in judicial opinions in obscenity cases from 1873 to 2007. 55 In obscenity cases, judicial opinions create a rich corpus of data on the cultural beliefs of the judges, as well as their explicit and implicit assumptions about moral governance, the role of emotions, the nature of obscenity-related harms and the identity of the victims and perpetrators. The opinions were collected from Lexis. For this essay, I selected all 256 opinions between 1873 and 1956, corresponding to 196 distinct obscenity cases. The overwhelming majority of opinions (187 opinions, or 73%) were issued in cases tried under the main criminal federal anti-obscenity law (initially known as the Comstock Act) regulating the distribution of obscene material through the mails and in interstate commerce, while the rest were cases argued under civil or local statutes.
There is a very good reason to use 1956 as a cut-off point. In 1879, United States v. Bennett adopted the test of obscenity developed earlier in England in Regina v. Hicklin. The test defined obscenity as “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hand a publication of this sort might fall” (Regina v. Hicklin, 1868, p. 371). Although as early as 1913 judge Learned Hand, then a District Court judge, questioned the appropriateness of the Hicklin standard, 56 he nevertheless felt compelled to follow it. However, starting with 1930, the federal courts chipped away at the Hicklin test in a movement to stop the censorship of “serious” literature. Thus, in the early thirties, the federal courts liberated instructional sex manuals from the taint of obscenity by including considerations about the purity of the author’s motive. 57 Notably, in 1933, the Hicklin test was dealt a serious blow in United States v. One Book Called “Ulysses” (1933, affirmed 1934). 58 Judge Woolsey found James Joyce’s Ulysses not obscene by explicitly using as evidence the literary value of the book and its dominant effect on the “normal” individual (rather than the effect of the objectionable parts on the most vulnerable, as the Hicklin test required). 59 Finally, in 1957 a six-to-three Supreme Court decision in Roth v. United States (1957) overturned Regina v. Hicklin and formulated a new definition of obscenity offering the following test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” 60 Thus, although arguably the decision in Roth reflected elements in the test of obscenity already adopted by the lower courts, it nevertheless provided an authoritative structure of review for obscenity cases that profoundly altered the doctrine of obscenity. 61 From that point onward, using this new definition, the lower courts began to employ different evidentiary rules.
Criminal and civil statutes demand different evidentiary criteria, which, at least in theory, are likely to influence judges’ discussion of obscenity; for that reason, I initially grouped all judicial opinions by statute. I performed a grounded theory analysis using Atlas.ti 6.2 software, starting with the group of cases argued under the Comstock Act and using the other groups as comparisons to achieve concept saturation. 62
The nature of grounded theory analysis allows sampling from within a substantive area of interest even when such sampling crosses “given” sub-groupings 63 – here, obscenity cases grouped by statute. Although ignoring the statute under which a case was argued might seem to do violence to the logic of legal discourse, that turned out not to be the case for judicial opinions about obscenity. At least until 1957, trial judges drew on precedents developed in the context of the Comstock Act irrespective of the particular statute invoked in the case. This common framework for establishing obscenity was historically tied up to the body of case law pertaining to obscene mailings. For that reason, I include in the following a brief review of the Comstock Act, so as to clarify the cultural context wherein a common law definition of obscenity emerged.
III. The Comstock Act: historical context and legal characteristics
The Comstock Act, passed in 1873, represents an amendment to The Post Office Act enacted in 1872. The Comstock Act, together with the Tariff Act of 1842, constitutes the backbone of current anti-obscenity federal legislation, as well as the template for existing state anti-obscenity laws. While the Comstock Act regulated the transmission of obscenity through the mails and imposed criminal penalties such as fines, hard labor and later imprisonment, the Tariff Act regulated importation of obscene materials and imposed civil penalties such as forfeiture. Neither of these acts was ever repealed, only amended and, in the case of the Comstock Act, extended into the current battery of obscenity laws regulating transmission of obscenity through all available media. This section will show the social and legal context in which the Comstock Act was passed and the implication for its statutory definition of obscenity for common law litigation.
The Comstock Act, one of the first pieces of anti-obscenity federal legislation actively enforced by postal inspectors, emerged from a context of middle-class moral entrepreneurship marked by fears about the “corruption” of the citizens and body politic in general through exposure to an emerging commercial culture disseminated through the mails. Following its establishment in 1775 as a national service, the United States Postal Office had great strategic value for the Continental Congress. During the Revolutionary era the mails served to communicate intelligence across the continent; 64 then, when the Postal Act of 1792 gave Congress exclusive ownership of and responsibility for postal routes, the mails became a crucial governance nexus first as a nation-building mechanism and later as a tool for moral reform. The Post Office provided an important instrument of state control along three dimensions: strategic communication value from center to periphery; symbolic contact with the government; and, civilizing force promoting the ideals of the republic. 65 Initially, then, the mails acted to connect the nation.
However, after 1835 the mails became sources of division and moral dissention both because of their disruption of community rhythms and holy days of rest and as a result of the type of content they carried. In particular, for the voluntary associations that regarded the mails as conduits for social reform, the increasing penetration power of the mails and their transformation into a medium of private, commercial exchanges made the mails subversive to the former agencies of moral control such as the family, the church, the military or the school. 66 As a result, between 1865 and 1876, Congress recognized three categories of nonmailable material, among which were obscene books and pictures sent to the Army. 67 In 1872, Congress passed a comprehensive law codifying previous legislation related to the Post Office. 68 This law excluded from the mails “material that might do physical damage to Post Office equipment and personnel as well as written matter that might hurt, financially or morally, the clients of the Post Office.” 69
Postmasters’ concern with erotic literature matched the moral activism of voluntary charities and anti-vice societies for whom social “purity” was the rallying cry. 70 Paralleling their English counterparts, American middle-class anti-vice societies emphasized legal reform as a tool for individual moral restructuring, and identified new threats for women, children and the young working class in the emergent commercial mass media. The concern with erotic prints reached its peak around the 1870s, following the increase in the production of print mass media such as magazines and cheap novels and of the high school and college student population able to read them. 71 One organization that played a highly instrumental role in creating not only the first legal infrastructure for the mass prosecution of allegedly obscene materials but also an enforcement apparatus was the New York Society for the Suppression of Vice, founded in 1873 by the infamous moral entrepreneur Anthony Comstock, a devotee of the New England Congregationalist Church. In the nineteenth century, the Society pursued the censorship of commercial erotica and allegedly “vulgar” new media genres such as dime novels, which were suspected of causing moral debauchery and crime. As Boyer notes, the activities of anti-vice societies and their crusade against “obscene” literature had the full support of an influential network of public officials such as legislators and judges, as well as ministers, editors of prominent newspapers and philanthropists. 72 This concerted middle-class censure of commercial media was possible because its proponents agreed on what constituted “bad books” and their supposedly deleterious effects on vulnerable audiences. Comstock rallied public outcry against the alleged vice entrepreneurs of the nineteenth century, whom he portrayed as marketing innovators using school catalogues and census lists of unmarried people as good source for mass mailing. 73
In 1873, Anthony Comstock’s vigorous lobbying produced an amendment to the existing federal anti-obscenity law. Popularly known as the Comstock Act, this legislation criminalized not only “lewd and lascivious” mailings, but also contraceptives, “any article or thing intended or adapted for any indecent or immoral use or nature,” as well as content meant to advertise such artifacts and devices. 74 Between 1873 and the end of the nineteenth century, Congress amended the Comstock Act five times, each time extending the scope of the statute to other classes of allegedly indecent mailings.
Technically, the Comstock Act was a badly-written law for at least two main reasons. First, the sweeping language of the statute codified into law the dubious assumption that obscenity was “in” the content itself rather than in the minds of the receivers. Second, the statute assumed that the “obscene” character of an artifact would be perfectly obvious to anybody with the “right” training. A well-written criminal law is supposed to define the behavior criminalized. The courts then interpret that definition and translate it into a set of evidentiary criteria that permit the determination that a crime has been committed. However, the nineteenth century anti-obscenity statute did not contain an actual statutory definition of obscenity, just a list of possibly suspicious artifacts such as “indecent,” “lewd,” and “lascivious” prints, postcards, letters, devices, and so on. The early amendments did not clarify the meaning of “indecent,” let alone the other epithets; they merely enlarged the scope of the law to more types of media. Consequently, the onus rested on the courts to define what constituted an obscene artifact and to develop a set of pragmatic evidentiary criteria to distinguish obscene from non-obscene material.
Moreover, since obscenity was a newly-identified crime, the usual sources of guidance used by the U.S. courts when making policy (such as precedents, Congressional record, amici curiae, and so on) were largely unavailable; the U.S. Supreme Court’s opinions at the beginning of the twentieth century did not offer a comprehensive definition either. Therefore, the burden fell on federal judges at lower levels to work out a definition of obscenity and evidentiary criteria and to harmonize precedents. The following section analyzes the process of developing those pragmatic criteria and their nature.
IV. Analysis
Students of anti-obscenity regulations often zoom in on the strong and widely shared beliefs in the symbolically polluting effects of obscenity on both individuals and society at large as the main category of obscenity effects. Indeed, various moral entrepreneurs of the period, including journalists and judges, held such beliefs. For example, many judges wrote opinions stating that obscenity, sometimes defined as “mental filth,” threatened the integrity of the social fabric by damaging individual values: obscenity is designed to “corrupt the public morals, and sap the foundation of society and government” (United States v. Harmon, 1891, p. 419); is “calculated to lower the standard which we regard as essential to civilization” (Dunlop v. United States, 1897, p. 500, citing jury instructions); and tends to corrupt “the manners and habits of the people with respect to sexual indulgencies” (United States v. Moore, 1900, p. 81).
These, however, were not the legally-codified effects of obscenity that justified prosecution and conviction. Rather, the alleged harm of obscenity as codified in judicial analysis was the stimulation of individual lust understood as erotic arousal. 75 Indeed, the main premise of the Comstock Act, as identified critically by an appellate judge, was that “the stimulation of the senses by writing or print is an evil” (Walker v. Popenoe, 1945, p. 512). This is a point that deserves extensive analysis especially because so many commentators of the pre-Roth period fail to notice that emotion norms regarding allegedly obscene media artifacts pivotally brace the discourse about societal effects. The following analysis distinguishes between two types of evidentiary criteria formulated via emotion norms: evidence of emotional effects on the victims or intended audiences and authorial emotions as proxies for authorial motives.
1 Lust: emotional chaos and its vulnerable victims
In the nineteenth century, injunctions against obscene content quite explicitly used a transmission model of communication, a model that assumed direct and immediate individual effects from exposure to obscenity. 76 Moral education aims to develop the ability of the individual to reflect on and demonstrate to others a socially acceptable level of self-restraint; internalization of the process of balancing self-indulgence with self-restraint turns individuals into governable subjects. 77 Obscenity threatens to disrupt this delicate balance: “[certain publications] are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world” (Dunlop v. United States, 1897, p. 500, citing jury instructions). It is precisely this effect of obscenity on individuals, the ability to alter their states of mind and bring forth “animal instincts” and to let sexual emotions run amok, that judges identified as the main harm justifying regulation: “Like the terms ‘lewd’ and ‘lascivious,’ with which it is associated, [obscenity] implies something tending to suggest libidinous thoughts, or to excite impure desires” (United States v. Wightman, 1886, p. 636) and “is calculated to excite … a desire for the gratification of the animal passions …” (United States v. Clarke, 1889, p. 733).
Following 1896, when the US Supreme Court in the landmark Swearingen decision explicitly associated obscenity with (allegedly immoral) sexual impulses, 78 the judicial definition of obscenity indexed the whole gamut of impermissible sexual thoughts and emotions resulting from exposure. According to federal judges in succeeding years, contact with obscene material received through the mails appealed “to the animal passion, stimulating it, corrupting and debauching the mind and heart” (United States v. Durant, 1891, p. 753); obscene artifacts “excite sensual desires and lascivious thoughts” (United States v. Clifford, 1900, p. 299) and “present to the mind of the addressee … the indulgence of libidinous desires offensive to the sense of chastity” (United States v. Wyatt, 1903, p. 318). Obscene matter “caters to a prurient taste” (MacFadden v. United States, 1908, p. 52), “is calculated to arouse or implant in the minds of those into whose hands it may come and subject to such influences obscene, lewd or lascivious thoughts or desires” (Griffin v. United States, 1918, p. 9), “tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard” (Dysart v. United States, 1925, p. 766). The effect of lust was deemed all the more serious since it was addictive and threatened desensitization: “The appetite for such literature increases with the feeding. The more it is pandered to, the more insatiable its craving for something yet more vicious in taste” (United States v. Harmon, 1891, p. 418).
Importantly, due to two other Supreme Court decisions in the late nineteenth century, a growing body of precedents regarded sexual arousal as a judicial test of obscenity, rather than solely as a harm to be controlled. A judicial test is a decision-making mechanism that specifies the set of criteria an artifact/behavior has to meet in order to be classified as an instance of a prohibited class. The probable effect of lust on “vulnerable individuals” as estimated by judges became in the early twentieth century the controlling factor that determined the obscenity of the artifact, clearly expressed at the appellate level in 1931: “The test is as to whether or not the language alleged to be obscene would arouse lewd or lascivious thought in the minds of those hearing or reading the publication” (Duncan v. United States, 1931, p. 132).
The point is made particularly well by cases in which the defining consideration in rulings of non-obscenity was an emotion antithetical to lust. These uncontroversial emotions belonged to two groups: those that would “repel rather than incite” lust, notably anger and disgust, 79 characteristic of injurious letters from one individual to another, and, after 1930, the “worthy,” chaste emotions indicative of solidarity with the human race, such as pity and sadness for certain segments of humanity, allegedly promoted by literary masterpieces. The emotions of anger and disgust, which suggest an act of distancing rather than attraction, functioned until the early 1930s as disqualifiers of obscenity and implied a contrast between “vulgar” (repellant) and “obscene” (seductive): “The language used on the valentine is coarse, vulgar, and indecent. Its tendency is to excite feelings of anger and contempt for its author. It would repel, rather than excite, feelings of an impure, licentious, or unchaste character …” (United States v. Males, 1892, p. 43); “The letter would excite the anger and indignation and resentment of the recipient rather than have a corrupting influence on her or any one (sic) who might read it. Clearly, it would not excite sexual desires or passions.” (United States v. Davidson, 1917, p. 527); “… while the letters in question are, as has been stated, coarse, vulgar, indelicate, disgusting, and in some instances libelous, nevertheless, I cannot perceive that they would have any tendency to corrupt morals. They repel rather than incite” (United States v. Limehouse, 1931, p. 398).
Starting in 1913 but most visibly in the late 1920s, one observes a significant judicial shift toward the normalization of sexual impulses and the identification of an excess of sexual stimulation as the “real” test of obscenity: “The writing must additionally appeal to prurience and be such as would tend to excite and incite voluptuous thoughts and desires beyond those which might be stimulated in any ordinary discourse on matters of sex education” (United States v. Goldstein, 1947, p. 877, emphasis added). To note, the discourse of excess problematizes the magnitude, rather than the possibility, of effect. Excess implies the contrast with a “normal” state of curiosity about sex characteristic for the ordinary individual, a moral yardstick explicitly identified in 1945 at the appellate level as the new standard. As Judge Learned Hand formulated anticipatorily in 1913, the ordinary individual is the “l’homme moyen sensuel”, 80 the expression meaning a man of average sensuality or “average sex instincts.” For another judge, the standard was “the judgment of the average, normal, reasonable, prudent person” (United States v. 4200 Copies Int’l Journal, 1955, p. 493, emphasis added) – qualifications highly suggestive of the moral underpinning of such a judicial fiction.
The creation of the ordinary reader substituted the “common sense of community” for the standard of the “weak and susceptible.” The construction of a norm identifying averages and extremes is a strategic disciplinary tool because it specifies the nature of the deviant class of individuals, practices, artifacts and so on to be acted upon, transformed and realigned to the norm, or contained and excluded. That the tastes, sensibility and intelligence of the average reader are the moral yardstick against which the effects of obscenity are measured is consistent with the disciplinarian contrast between the normal and the extreme. 81 Significantly, judicial concern for the excessive lust of the “average” individual, characteristic for the period after the 1920s, shifted evidentiary standards away from the emotions of the vulnerable and toward the emotions of the normal. To express this idea differently, the strategic creation of the deviant individual whose extreme lust demanded regulation was one of the first examples of judicial decision-making tools that allowed for the reduction of uncertainty concerning the possible effects of obscene media on most individuals.
The concern for sexual arousal implied that the potential victims of obscenity shared a state of mind sufficiently volatile to justify specific regulatory attention, although from the judicial opinions it is not immediately apparent who exactly suffered from that condition. Most of the time, early judicial discourse did not affix to the vulnerable class an explicit social composition, although sporadically in the early twentieth century we find references to “ardent youths and maidens” (Knowles v. United States, 1909, p. 411), “the young and the innocent” (De Gignac et al. v. United States, 1902, p. 201), and even a concern for the sensibilities of the postal employees exposed to obscene writing on the envelopes. 82 Rather, the category of the vulnerable was identified by removing the extremes. Before the 1920s, the potential of harm was measured against the extreme categories of the hardened (“men and women … so depraved by the use [of obscenity], or so insensate from perverted education, that they will not veil their eyes, nor hold their tongues,” United States v. Harmon, 1891, p. 423) and the pure (“there would be some men and women so pure, perhaps, that [the content] would not excite an impure thought,” United States v. Bennett, 1897, p. 1105). Barring those whose internal moral corruption was so advanced that they could no longer be helped and those whose saintly purity made lust irrelevant, the struggle for emotional control took place over everybody else “in the middle,” notably the vulnerable belonging to the community to which judges and prosecutors themselves belonged. Not surprisingly then, the “ardent youths and maidens” pointed to a type of audience whose “correct” mix of emotions was essential for the reproduction of social order because proper emotions, like cultural capital, defined social status. We note that the targets of several charitable and reformist movements at the end of the nineteenth century specifically identified other categories of emotionally vulnerable audiences whose emotional control mattered for the very identity of the (patriarchal) nation-state: soldiers, women, the poor. 83
Between 1915 and the late 1920s, these categories of emotionally vulnerable individuals became the exception rather than the norm, the extremes rather than “the middle distribution.” The vulnerable acquired a presence in judicial discourse as classes for which sexual arousal was an expression of deviance. They were individuals earlier identified as those “to whom the mere mention of a prostitute as such would suggest libidinous thoughts and sexual desires, but such men (sic), if there be such, are abnormal” (United States v. Davidson, 1917, p. 531). On the one hand, we have the “neurotics” who got aroused no matter what, those “salaciously disposed” (United States v. Rebhuhn, 1940, pp. 514–15), the “hardened minority” (Besig v. United States, 1953, p. 145) of “undeveloped minds which might be driven to prurient speculation by reading any number of books which have received the sanction of the Supreme Court” (United States v. Goldstein, 1947, p. 877). At the polar extreme we have the adolescents (not the children!) and their “mental pabulum” (United States v. Goldstein, 1947, p. 877), a transitory but no less difficult identity characterized by “a state of inevitable curiosity” in matters of sex, an age in which the young “grope about in mystery and morbid curiosity” (United States v. Dennett, 1930, p. 568).
While the pervert and the adolescent, as categories of potential victims, are united by common emotional disarray, their status as judicial regulatory targets is very different. In contrast to the pervert, presumably irredeemable, the adolescent is an object of disciplinary pressure from moral regulatory institutions both internal and external to the legal system, although the judges might disagree on the best course of action: “Some protection must be given the youth other than that which restricts grown-up mentalities. Would it be brash to suggest some measure of parental supervision and greater stress of school and church influence? The salacious few will stew in their own juice, regardless of all efforts to save them” (United States v. Goldstein, 1947, p. 877).
2 Shame: Harms of honor and dignity
Unlike references to lust and emotional arousal, references to shame occur much less frequently in judicial opinions, but are nevertheless significant. Whereas lust, the main conduit for out-of-control emotions, is antithetic to social order, shame embodies social order. Shame represents a “painful emotion responding to a sense of failure to attain some ideal state. Shame … pertains to the whole self, rather than to a specific act of the self … In shame one feels inadequate, lacking some desired type of completeness of perfection.” 84 Shame has a distinct hierarchical component insofar as it often marks a position of perceived inferiority in the social hierarchy. 85 Shame, the underside of pride, belongs to those “role-taking emotions” by means of which social actors evaluate themselves from the perspective of others within an internalized moral universe. 86
In the judicial opinions analyzed, shame is mentioned as the effect of obscenity exposure on the reputation of middle-class recipients; references to shame, therefore, mark the contours of judicial status policy. The regulation of obscenity originated as a project of the upper-middle-class, which defined itself through claims to respectability underscored by moral outrage at the effect of obscenity on traditional values. For most U.S. judges, the very test that distinguished the indecent from the acceptable was whether the material did violence to core middle-class values such as decency and civilization and “shock[ed] the ordinary and common sense of men” (United States v. Davis, 1889, p. 328), a significant choice of words. Additionally, argues Beisel, the presumed association between consumption of obscenity and propensity to vice directly threatened the ability of middle-class youths to provide the needed cultural capital – and, I would add, emotional capital – for securing positions inside the same class. 87 It is in this sense that we can speak of moral regulation as status policy, insofar as it represented a project of consolidating the status quo of a dominant group (in this case, middle-class males) through the suppression of alternative forms of morality. 88
Judges invoke shame as obscenity harms to one’s honor, and obscenity harms to a woman’s dignity. In his classic discussion of the social foundation of defamation law, Robert C. Post distinguishes between two aspects of reputation. 89 Reputation as honor is a public aspect of a social role: it is affixed to social identity and codifies social expectations relative to the personality of the individual occupying a given social position. A taint to honor is a stigma that discredits the social actor. 90 In contrast, reputation as dignity does not demand a public scene, although it necessarily internalizes it. Reputation as dignity refers to the respect individuals believe that they are owed and that they owe themselves as full-fledged members of a broad social group, such as society in general or the human race. This aspect of reputation has more to do with self-esteem and transcends social roles: harm to dignity attacks the very essence or character of what it means to be a man, a woman, a human being.
In the nineteenth century, obscenity law carried an important protective component of reputation understood as honor. The provisions against obscene postcards and epithets on envelopes were meant to address reputational harm as well as the emotional harms of wounded anger and shame ensuing from loss of face: “… the chief reason for [criminalizing obscene language on envelopes] is to prevent the post-office from being used as a means for committing cowardly and indecent assaults at a safe distance, or anonymously, upon the feelings and character of any one …” (United States v. Loftis, 1882, pp. 673–4).
Early judges were particularly mindful of offensive postcards used by collection agencies to extract debts by publicly shaming the debtors, while early twentieth century postmasters were suspicious of any information on envelopes that did not qualify as a standard address. Non-standard information about the addressee, such as “The Notorious” or “Pros.” (suspected to mean “prostitute”) resulted in obscenity prosecutions. None of these expressions are “lewd or lascivious,” at least not in the way we would understand those terms today. They are, however, “immoral” insofar as they potentially represented unwarranted discrepancies, to use Erving Goffman’s terminology, between virtual social identity – visible, consonant with normative expectations – and actual social identity – secret, tainted by potentially discreditable attributes. 91 We can understand prosecutorial logic in these cases only by interpreting obscenity as an immoral threat to one’s honor, as marked by the shame and social embarrassment of the recipient. Here, the shame and embarrassment of the recipient represent the evidence on the basis of which judges identified obscenity as a lack of morality and good citizenship.
A different category of judicial opinions referenced shame as the outcome of an attack on dignity, specifically a woman’s dignity. These precedents involve seduction letters (sexual propositions from males to females), a category of personal communication that, along with more traditional mass media artifacts, came before the courts until around the 1920s. Here, the primary threat perceived by judges was the moral corruption of a woman’s dignity, virtue and character, rather than a woman’s reputation understood as honor.
Of course, the threat presented by seduction letters did not attack only a woman’s dignity as a woman, but implicated honor – that is, social determinants – significantly. On the one hand, seduction, when not resulting in marriage, produced a woman’s permanent loss of honor in the community, all the more scandalous if the woman belonged to the upper social strata. On the other hand, only women of good repute for whom honor was a significant social asset were allowed to press a claim against seduction. 92 However, it is significant that the very act of sending a seduction letter was considered an obscenity crime, even if the woman had no intention of responding to the indecent proposition. As Friedman argues, for the nineteenth century woman chaste character implicated her ability to correctly manage her private life, including the management of her feelings upon reception of immoral letters, a form of communication characterized precisely by its secrecy. 93 Therefore, the primary target of obscenity harm was not primarily a woman’s (public) honor, but rather the complex of internalized moral values and personality traits that defined within a middle-class context the character of the ideal woman – in other words, a woman’s self-respect.
The emotions of women were an important target of regulatory control before the 1920s not because women’s emotions were necessarily in flux, like those of adolescents, but because a woman’s “good character” as described by emotional self-restraint was an essential social resource in reproducing patriarchal order. 94 Unlike honor, character was a complex of internalized gender-specific “virtues” against which a woman’s feelings and conduct were to be judged. 95 Victorian morality prescribed chastity, modesty, submissiveness and domesticity as normative expectations for securing a respectable social niche through marriage. “True womanhood” thus understood, claimed the literary novels of the nineteenth century, was the cornerstone of social order; the virtuous character of the heroine embodied “the whole aspiration of society.” 96
The ideal of “true womanhood” was one of the social standards by means of which institutions of moral governance such as the family and the media extended social control over the identity and inner life of young girls. 97 One such device was the moral story of a woman’s ruin as a result of exposure to “dangerous” books or letters. In this context, “seduction letters” were problematic for judges not least because they enacted the leit-motif of that scenario. Not surprisingly, then, the protection of the family, which a judge defined as “the common nursery of mankind, the foundation rock upon which the state reposes” (United States v. Harmon, 1891, p. 417), meant primarily the protection of women’s chastity: “If [the vile and depraved] may, with impunity, override the barrier that protects the home, and reach the young girls sheltered there, through the public mails, by letters sent to them, which teach or attempt to teach them that voluptuousness is more to be desired than true womanhood, and that virtue had better be exchanged for sexual dissipation, then, indeed, there is a crying necessity for further legislation” (Thomas v. State, 1885, p. 421, emphasis added).
If a woman’s ruin ensued from her failure to self-manage her feelings, shame was the device used by the patriarchal order to steer her desires. According to judges, for a woman of dignity, shock and shame, rather than lust, were the mandatory reactions to immoral propositions: “It is difficult to conceive what can be more shocking to the modesty of a chaste and pure-minded woman than the proposition contained in these letters. It is no less than a proposition from a married man to an unmarried woman, proposing a clandestine trip to the city of Lynchburg for a grossly immoral purpose” (United States v. Martin, 1892, p. 921). Indeed, the ability to feel and show shame was the very indicator of virtue: “The obscenity which the law seeks to suppress is that which brings the blush of shame to the cheek of virtue, not to the cheek of vice, not to the wise, because that ability to blush has long since been stifled, it is dead, it does not exist any longer” (Bullard v. Esper, 1947, p. 548). Here, the judicial use of normative shame illustrates how this “feeling rule” acted at the end of the nineteenth century as a moral regulatory instrument for protecting the paternalistic Victorian values of female virtue and self-restraint.
3 Permissible and impermissible authorial passions
To the judicial construction of the victims of obscenity corresponds the construction of its purveyors. The judicial construction of the category of the pornographer or “merchant of trash” is accomplished by reference to the author’s inner life via the device of impermissible individual motive. The boundary of this category of defendants emerges through a series of contrasts whereby the judiciary distinguish illegitimate authorial purposes from their acceptable counterparts, work accomplished via reference to emotions. Whereas before the 1930s judges did not inquire about the sender’s motive, in post-1930 decisions judges used authorial motive to distinguish between “serious” instructional literature such as birth control pamphlets from “intelligent and high-minded sources” and literature pandering strictly to hedonistic tendencies, the latter penalized as obscene. In the following, the distinction between obscene and non-obscene literature involves emotion norms in two ways: first, consistent with the analysis in the previous two sections, motive is inferred from the probable emotional effect of the work on the audience; second, the contrast between acceptable and unacceptable emotions serves to distinguish between permissible and impermissible authorial states of mind used as proxy for motive.
The opinions involving instructional literature represent normative blueprints of how knowledge on sex should be communicated, namely, by avoiding the “wrong” emotions. First, the purpose of the author of a sex education manual should be beyond reproach, “a truthful exposition of the sex side of life, evidently calculated for instruction and for the explanation of relevant facts” (United States v. Dennett, 1930, p. 569). A manual on sex or contraception should be “an honest, sincere, scientific and educational study and exposition of a sociological phenomenon,” written with “sincerity of feeling” and in a “manifestly serious and disinterested spirit” (United States v. Dennett, 1930, p.569).
Second, the manual should serve clear and useful social purposes. In judicial opinions, two such purposes are emphasized: the elimination of zones of silences about sex detrimental to youth (who otherwise might be forced to seek knowledge from unsanctioned sources of “ill-informed and often foul-minded companions”) and the contribution to the success of the family (“an idealization of the marriage relation and sex emotions”). 98 Thus, the treatment of the topic should be “informative and instructive” and beneficial for the intended audience (United States v. One Obscene Book Entitled “Married Love,” 1931, p. 824), either by dispelling myths related to sex for the young, 99 or by helping the already married to understand their relationship. 100
Third, since lust is recognized as an inevitable effect of sex instruction manuals particularly when the young were the targeted audience, the style of the work should neutralize arousal. The work should treat sex with restraint (United States v. One Obscene Book Entitled “Married Love,” 1931, pp. 823–4), “with obvious seriousness and with great decency” (United States v. One Book, Entitled “Contraception,” 1931, p. 527), in words that are “honestly relevant to the adequate expression of innocent ideas” (United States v. Kennerley, 1913, pp. 120–1). Unsanctioned pleasure needs to be subordinated to the overall disciplinary purpose of the work. The worthy purpose of the work helps balance lust against the social need for sex instruction, as well as minimize the danger of arousal: “It may be assumed that any article dealing with the sex side of life and explaining the functions of the sex organs is capable in some circumstances of arousing lust … But it can hardly be said that, because of the risk of arousing sex impulses, there should be no instruction of the young in sex matters …” (United States v. Dennett, 1930, p. 568). The requirement of style offsets sexual arousal by subordinating it to the “worthy emotions” promoted by the whole – honesty, sincerity and self-restraint: “Any incidental tendency to arouse sex impulses which such a pamphlet may perhaps have is apart from and subordinate to its main effect … The direct aim and the net result is (sic) to promote understanding and self-control” (United States v. Dennett, 1930, p. 569). The role of the parts in the logic of the whole, a heuristic that judges also employed to liberate contemporary classical literature from the clutches of the censors, thus acts as a moral calculus in which the polluting drop no longer contaminates the entire pool, provided the whole is demonstrably produced with a socially useful purpose: “It would make nonsense of the statute to hold that it covers works of value and repute merely because their incidental effects may include some slight stimulation of the senses of the ordinary reader” (Walker v. Popenoe, 1945, p. 512).
Cases involving realist literature show how the intent of the author articulated via a vocabulary of emotions crucially distinguished between obscene and not obscene work. To recall, the Hicklin standard provided no guidance on how to distinguish between “serious” and “street-corner” literature, although the Supreme Court established implicitly that only the latter was subject to anti-obscenity regulations. Judges used authorial intent as another evidentiary criterion to contrast commercial literature aimed at satisfying pleasure and “serious” literature aimed at elevating the mind. For example, Judge Woolsey writes apropos of Ulysses: “where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called, according to the usual phrase, pornographic, that is, written for the purpose of exploiting obscenity” (United States v. One Book Called “Ulysses,” 1933, p. 183). The author’s fame and credentials weigh in favor of a determination of innocence, just like the status of the classic author, that is, somebody who has “the sanction of age and fame, and usually appeal to a comparatively limited number of readers” (Anderson v. Patten, 1917, p. 384). The authors should be perceived as honest and committed to artistry and not to pecuniary gain, a “disinterested spirit” (United States v. Dennett, 1930, p. 569). The work should convey “sincerity of feeling” (United States v. Dennett, 1930, p. 569), as well as serious commitment to artistic innovation. Thus, in regard to Joyce’s Ulysses, “[i]f Joyce did not attempt to be honest in developing the technique which he has adopted in ‘Ulysses,’ the result would be psychologically misleading and thus unfaithful to his chosen technique. Such an attitude would be artistically inexcusable” (United States v. One Book Called “Ulysses,” 1933, p. 183).
In contrast, commercialism in judicial construction requires a mercantile intent directly opposed to the “honesty” and noble purpose of the artistic craft. “Pornographic intent,” as Judge Woolsey calls it, indicates “the leer of the sensualist” who exploits “dirt for dirt’s sake” (p. 184), who “cater[s] to the salacious tastes of the customers” (Glanzman v. Schaeffer, 1956, p. 244) “wholly for the purpose of profitably pandering to the lewd and lascivious” (Lynch v. United States, 1922, p. 163) – in short, who purveys lust. The commercial intent of the author colors the whole work to such an extent that if a book passage is “word-painted in such lurid and smutty or pornographic language that dirt appears as the primary purpose rather than the relation of a fact or adequate description of the incident” (Besig v. United States, 1953, p. 146), then the book as a whole is obscene.
V. Conclusions
One of Michel Foucault’s key insights in Discipline and Punish, later developed in his work on the history of sexuality, is that reshaping individuals’ inner lives is one of the most efficient mechanisms of regulation. 101 Indeed, it is this crucial aspect of disciplinarian regulation, the creation and application of efficient training techniques, that enables institutional actors to operate on individuals by shaping their inner lives, thus, in a very real sense, “making” individuals. 102 Foucault identifies the emergence of liberal forms of government in the eighteenth century precisely in the multiplication of techniques of coercion that at the same time guarantee freedom. 103 The prisoners in Bentham’s circular prison internalized the omnipresent gaze of the guard, thus substituting the imaginary certitude of surveillance to its reality. So too modern power attempts to mold the “soul” of its subjects by training them to regard as taken-for-granted certain versions of “normalcy” that facilitate social control. Thus, order emerges less through the active and violent involvement of repressive mechanisms than through the internalization of social controls that penalize as deviant any departures from the norm.
While Foucault pays particular attention to power as “concerted distribution of bodies, surfaces, lights, gazes” and their attendant systems of knowledge, the analysis suggests that we should add the training of emotions to the list of governance strategies. 104 In particular, this article has used federal judicial discourse at the end of the nineteenth century and beginning of the twentieth to show that federal judges used “feeling rules” regarding lust and shame – norms about how those emotions were to be privately experienced – as evidentiary mechanisms in anti-obscenity cases.
Fact-finders are charged with deciding whether, given the evidence presented at the trial, the defendant actually committed a crime. In anti-obscenity cases, the crime – the transmission of obscene matter through the mails – could be proved only by establishing that the media artifact in question was actually obscene. Absent a legal definition of obscenity, trial and appellate judges alike attempted to translate abstract moral pronouncements such as “obscenity is that which perverts society” into criteria (tests) which could be used empirically. While doing so, judges also established the nature of harm from obscenity and the nature of its likely victims.
The analysis has found that, according to federal judges, a primary harm of obscene media was the emotional chaos brought about by lust. Before the 1920s, the mere tendency to incite lust was the main harm of obscenity; after the 1920s, judges defined harm as excessive arousal. While the concern for probable lust before the 1920s assumed the vulnerability of the general population to sexual arousal, concern for excessive lust after the 1920s crucially shifted judicial attention to specific classes of audiences allegedly in need of disciplinary training. If, as argued by sociologists such as Steven Gordon, judicial opinions as social texts reflect changes in the dominant emotional culture of a society, 105 then this judicial transition from penalizing all lust to penalizing its excess corroborates profound changes elsewhere in people’s acceptance of sex for pleasure and the necessity of contraception. 106 Indeed, the transition towards the judicial treatment of sexual desire as a “normal” part of the human psyche reflected a larger transition in the attitudes toward sex after World War I enabled by factors such as: the creation of new spaces of leisure brought about by new technologies such as the motion picture, which made erotic interaction and sexual content more accessible to working-class youth; the radical feminist movement for birth control that brought to light and valued female sexual desire; and, last but not least, the emergence of an intellectual subculture of book publishers, editors of literary and scholarly journals, and leaders of philanthropic initiatives with sufficient resources to challenge the accepted models of the nineteenth century. 107
However, this essay makes a different argument. As agents of the state, judges not only reflect on social order, but maintain it or make it problematic by (de)legitimizing the laws that render it meaningful. Therefore, judges’ support for a particular emotional culture is not simply a reflection of the social reality, but an act of governance. The analysis showed how the state, via its agents, has actively supported middle-class emotion culture as a matter of policy. The category of obscenity harms to vulnerable audiences exemplifies disciplinarian, subject-centric moral governance performed by operating on the inner states of individuals through the normative appraisal of permissible and impermissible emotions. 108 The governance of emotion via the construction of a normative contrast between deviant and “worthy” affects has particular import on a disciplinarian style of regulation whose central tenet is the transformation of the individual to match the norm. Emotional chaos interferes with emotional socialization and with the “proper” transmission of emotional capital. If, as implied by some historians, the key to the ascendance of the Anglo-Saxon middle class was the ability to institutionalize a particular type of emotional capital into moral regulation, then early judges’ concern for preserving individuals’ emotional self-control by penalizing probable lust and assuming the normativity of female shame clearly shows an alliance with that middle class project. 109 Thus, through the close reading of judicial discourse, the analysis demonstrated how early federal judges imagined middle-class emotional capital and ultimately reproduced it.
Moreover, the judicial treatment of medical pamphlets and contemporary literature after the 1930s outlines the parameters of a judicial aesthetic of instruction that distinguishes systematically between acceptable authorial motives, such as the education of the audiences, and mercantile motives (“pleasure for money’s sake”) allegedly defining commercial obscenity. Judicial distinction between highbrow and popular culture further renders obscenity regulation as a middle class status policy project. Judges used heuristics related to the style of the work and the role of the part in the logic of the whole to infer how much of the dominant effect of the scrutinized work on the audiences was lust rather than “worthy” emotions. The connection between emotion norms and the author’s motives further shows how judges used emotion rules to reproduce and perhaps support the moral economy on which the middle-class articulated its cultural values.
The emotion rules about shame constructed by early judges had a distinct gender-informed dimension and illustrate what Hochschild has termed “gender strategy.” 110 Assumptions of the harmful effect of obscene material on a woman’s dignity are much more enduring in judicial opinions than the old Victorian protections enacted around a woman’s virginity. This analysis has distinguished between harm to honor, as expressed by the libelous component of obscenity, and harm to dignity, as expressed by normative prescriptions regarding a woman’s character. The codification of a woman’s private shame as an obscenity harm suggests a judicial normative feeling rule regarding women’s self-management of emotions upon contact with sexually charged content. Interestingly, although the class bias in judicial opinions largely disappeared after the 1950s, the presumption of harm to a woman’s dignity from exposure to obscene content did not fade until the 1960s. 111
The study has several limitations. First, although references to lust abound in the federal judicial opinions analyzed, references to shame are far fewer, weakening empirical support for the argument. References to shame, however, are much more prominent in the opinions of state judges and align with the conclusions drawn from the federal opinions. For complete support of my arguments, further analysis should incorporate state judicial opinions as well and compare them with federal data. Second, due to space restrictions, the analysis did not examine the use of disgust, except insofar as judges used it as a disqualifier of obscenity. My initial work on the topic suggests that, after World War II, the alleged disgust produced at exposure to obscene media became a new evidentiary criterion, used in the exactly opposite way – that is, to prove rather than disprove obscenity. 112 The how and why of this emotional reversal deserves extended analysis.
Although this essay covers the end of the nineteenth century and first half of the twentieth, the findings have considerable import for making sense of a present reality increasingly characterized by the politics of public emotions. The findings of the study indicate that the state through its agents was much more active in legitimizing the middle-class emotional culture at the beginning of the twentieth century than previously believed. Thus, the analysis suggests a research agenda that would identify continuities in gender and class-based “emotional governance” mechanisms that might explain the contemporary effects of institutionalized public emotions in legitimizing sex panics. 113 The historical analysis of early anti-obscenity cases is relevant to the present insofar as it invites us to explore the modern politics of public emotions within a tradition that legitimized the transmission of emotional capital as tool of middle-class social control.
Footnotes
Acknowledgements
The author would like to thank the following individuals who offered helpful critique on various drafts of the manuscript: Ece Algan, Greg Armstrong, Oscar H. Gandy, Jr., Heather Hundley, Robin Larsen, Carolyn Marvin, Peter Simonson, the members of the Writing Group at CSUSB, and five anonymous reviewers.
Cited Cases
Anderson v. Patten, 247 F. 382 (1917)
Besig v. United States, 208 F.2d 142 (9th Cir. 1953)
Bullard v. Esper, 72 F. Supp. 548 (N.D. Tex. 1947)
Cain v. United States, 274 F.2d 598 (5th Cir. 1960)
Cohen v. California, 403 U.S. 15 (S. Cr. 1971)
De Gignac et al. v. United States, 113 F. 197 (7th Cir. 1902)
Duncan v. United States, 48 F.2d 128 (9th Cir. 1931)
Dunlop v. United States, 165 U.S. 486 (S. Cr. 1897)
Dysart v. United States, 4 F. 2d 765 (5th Cir. 1925)
Glanzman v. Schaeffer, 143 F. Supp. 243 (S. D. N.Y. 1956)
Griffin v. United States, 248 F. 6 (1st Cir. 1918)
Knowles v. United States, 170 F. 409 (8th Cir. 1909)
Lynch v. United States, 285 F. 162 (7th Cir. 1922)
MacFadden v. United States, 165 F. 51 (3d Cir. 1908)
New Am. Library of World Literature, Inc. v. Allen, 114 F. Supp. 823 (N.D. Ohio 1953)
Parmelee v. United States, 113 F.2d 729 (D.C. Cir. 1940)
Regina v. Hicklin, [L R] 3 QB 360 (1868)
Roth v. United States, 354 U.S. 476 (S. Cr. 1957)
Swearingen v. United States, 161 U.S. 446 (S. Cr. 1896)
Thomas v. State, 103 Ind. 419 (1885)
United States v. 4200 Copies Int’l Journal, 134 F. Supp. 490 (E.D. Wash. 1955)
United States v. Anderson, 268 F. 696 (D. Mont. 1920)
United States v. Bennett, 24 F. Cas. 1093, 1105 (S.D. N.Y. 1897)
United States v. Clarke, 38 F. 732 (E.D. Miss. 1889)
United States v. Clifford, 104 F. 296 (D. West Va. 1900)
United States v. Davidson, 244 F. 523 (N.D. N.Y. 1917)
United States v. Davis, 38 F. 326 (Fed. Cir. W.D. Tenn. 1889)
United States v. Dennett, 39 F.2d 564 (2d Cir. 1930)
United States v. Durant, 46 F. 753 (E.D. S.C. 1891)
United States v. Goldstein, 73 F. Supp. 875 (D. N.J. 1947)
United States v. Harmon, 45 F. 414 (D. Kan. 1891)
United States v. Kennerley, 209 F. 119 (S.D. N.Y. 1913)
United States v. Limehouse, 58 F.2d 395 (E.D. S.C. 1931)
United States v. Loftis, 12 F. 671 (D. Or. 1882)
United States v. Males, 51 F. 41 (D. Ind. 1892)
United States v. Martin, 50 F. 918 (W.D. Va. 1892)
United States v. Moore, 104 F. 78 (D. Ky. 1900)
United States v. One Book, Entitled “Contraception,” 51 F.2d 525 (S.D.N.Y. 1931)
United States v. One Book Called “Ulysses,” 5 F. Supp. 182 (S.D.N.Y. 1933)
United States v. One Obscene Book Entitled “Married Love,” 48 F.2d 821 (D.C.N.Y. 1931)
United States v. Rebhuhn, 109 F.2d 512 (2d Cir. 1940)
United States v. Wightman, 29 F. 636 (W.D. Pa. 1886)
United States v. Wyatt, 122 F. 316 (D. Del. 1903)
Walker v. Popenoe, 149 F.2d 511 (D.C. Cir. 1945)
1.
An early version of this manuscript was presented at the International Communication Association Convention, Chicago, 2009.
2.
A point recently restated in A. Koppelman, “Does Obscenity Cause Moral Harm?,” Columbia Law Review 105 (2005), p. 1636.
3.
G. Mucciaroni, “‘Are Debates about ‘Morality Policy’ Really about Morality? Framing Opposition to Gay and Lesbian Rights,” Policy Studies Journal 39 (2011), pp. 187–216. For the argument that the moral field itself is difficult to identity analytically, see generally A. Hunt, “From Moral Science to Moral Regulation: Social Theory’s Encounter with the Moral Domain,” in Gerard Delanty and Engin F. Isin, eds., Handbook of Historical Sociology (London: Sage, 2003), pp. 364–82; M. Dean, “‘A Social Structure of Many Souls’: Moral Regulation, Government, and Self-Formation,” Canadian Journal of Sociology 19 (1994), pp. 145–68; B. Curtis, “Reworking Moral Regulation: Metaphorical Capital and the Field of Disinterest,” Canadian Journal of Sociology 22 (1997), pp. 303–18.
4.
Cohen v. California, 403 U.S. 15 (S. Cr. 1971), p. 25, J. Harlan concurring.
5.
As Koppelman argued, see supra note 1.
6.
For the concept of “feeling rules,” see Arlie Russell Hochschild, The Managed Heart: Commercialization of Human Feeling (Berkeley, CA:University of California Press, 1983).
7.
In a memorable and often invoked phrase, Foucault defined governance as “the conduct of conduct.” This conception of governance admits both a hegemonic model of power, tied up to the territorial concerns of the nation-state, and more diffuse networks of influences and strategies, from institution-specific to areas of micro-management constitutive of habitual “practical rationalities.” See Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999), pp. 1–14 for this point.
8.
Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon, 1979).
9.
Foucault, Discipline and Punish, pp. 207–8.
10.
For a (necessarily limited) list of recent readers illustrative of various traditions in emotion research, see for example Richard D. Lane, Lynn Nadel (eds.), Cognitive Neuroscience of Emotion (Oxford: Oxford University Press, 2002); Michael Lewis, Jeannette M. Haviland-Jones, and Lisa Feldman Barrett, Handbook of Emotions, 3rd ed. (New York: Guilford Press, 2008); Paula Niedenthal, Silvia Krauth-Gruber and Francois Ric, Psychology of Emotion: Interpersonal, Experiential, and Cognitive Approaches (New York: Psychology Press, 2006); Jan E. Stets and Jonathan H. Turner, Handbook of the Sociology of Emotions (New York: Springer, 2006).
11.
For a similar approach to emotions, used to understand how judges respond to emotional reactions in victim impact statements, see M. L. Schuster and A. Propen, “Degrees of Emotions: Judicial Responses to Victim Impact Statements,” Law, Culture and the Humanities 6 (2010), pp. 75–104.
12.
Clifford Geertz, The Interpretation of Cultures; Selected Essays (New York: Basic Books, 1973), p. 81.
13.
Hochschild, The Managed Heart; S. L. Gordon, “Institutional and Impulsive Orientations in Selectively Appropriating Emotions to Self,” in David D. Franks and E. Doyle McCarthy, eds., The Sociology of Emotions : Original Essays and Research Papers (Greenwich, CT: Jai Press, 1989), pp. 115–35; S. L. Gordon, “Social Structural Effects on Emotions,” in Theodore D. Kemper, ed., Research Agendas in the Sociology of Emotions (Albany, NY: State University of New York Press, 1990), pp. 145–79; P. A. Thoits, “The Sociology of Emotions,” Annual Review of Sociology 15 (1989), pp. 317–42.
14.
Gordon, “Institutional and Impulsive Orientations”; Hochschild, The Managed Heart; Thoits, “The Sociology of Emotions.”
15.
A. R. Hochschild, “Emotion Work, Feeling Rules, and Social Structure,” The American Journal of Sociology 85 (1979), pp. 551–75; Hochschild, The Managed Heart.
16.
C. Clark, “Emotions and Micropolitics in Everyday Life: Some Patterns and Paradoxes of ‘Place,’” in Kemper, Research Agendas, pp. 305–33.
17.
F. M. Cancian and S. L. Gordon, “Changing Emotion Norms in Marriage: Love and Anger in U.S. Women’s Magazines since 1900,” Gender and Society 2 (1988), p. 314; S. L. Gordon, “The Sociology of Sentiments and Emotion,” in Morris Rosenberg and Ralph H. Turner, eds., Social Psychology: Sociological Perspectives (New York: Basic Books, Inc., 1981), pp. 562–92; Gordon, “Institutional and Impulsive Orientations”; Gordon, “Social Structural Effects on Emotions.”
18.
Gordon, “The Sociology of Sentiments and Emotion”; Gordon, “Institutional and Impulsive Orientations”; Gordon, “Social Structural Effects on Emotions”; Hochschild, “Emotion Work”; Hochschild, The Managed Heart; A. R. Hochschild, “Ideology and Emotion Management: A Perspective and Path for Future Research,” in Kemper, Research Agendas, pp. 117–42; Thoits, “The Sociology of Emotions”; P. A. Thoits, “Emotional Deviance: Research Agendas,” in Kemper, Research Agendas, pp. 180–203; P. A. Thoits, “Emotion Norms, Emotion Work, and Social Order,” in A. S. R. Manstead, Nico H. Frijda, and Agneta Fischer, eds., Feelings and Emotions: The Amsterdam Symposium (Cambridge: Cambridge University Press, 2004), pp. 359–78.
19.
Hochschild, “Emotion Work”; Hochschild, The Managed Heart; Thoits, “Emotional Deviance.”
20.
Hochschild, “Ideology,” p. 122.
21.
Hochschild, “Emotion Work”; Hochschild, The Managed Heart; Hochschild, “Ideology”; Thoits, “Emotion Norms.”
22.
Hochschild, The Managed Heart, p. 57.
23.
Paul Ekman and Wallace V. Friesen, Unmasking the Face; A Guide to Recognizing Emotions from Facial Clues (Englewood Cliffs, NJ: Prentice-Hall, 1975).
24.
Paul Ekman, “Expression and the Nature of Emotion,” in Klaus R. Scherer and Paul Ekman, eds., Approaches to Emotion (Hillsdale, NJ: L. Erlbaum Associates, 1984), pp. 319–41; Thoits, “Emotional Deviance”; Thoits, “Emotion Norms.”
25.
For one of the first sociological analyses of shame, see S. Shott, “Emotion and Social Life: A Symbolic Interactionist Analysis,” The American Journal of Sociology 84 (1979), pp. 1317–34.
26.
For the concept of “emotion work,” see Hochschild, “Emotion Work,” pp. 561–2; also in Hochschild, The Managed Heart.
27.
For cultural capital, see Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Cambridge, MA: Harvard University Press, 1984); Pierre Bourdieu and Jean-Claude Passeron, Society, Culture and Education (Beverly Hills, CA: Sage Publications, 1977).
28.
S. E. Cahill, “Emotional Capital and Professional Socialization: The Case of Mortuary Science Students (and Me),” Social Psychology Quarterly 62 (1999); M. Leonard, “Children, Childhood and Social Capital: Exploring the Links,” Sociology 39 (2005); D. Reay, “A Useful Extension of Bourdieu’s Conceptual Framework?: Emotional Capital as a Way of Understanding Mothers’ Involvement in Their Children’s Education?”, The Sociological Review 48 (2000); D. Reay, “Gendering Bourdieu’s Concepts of Capitals? Emotional Capital, Women and Social Class,” The Sociological Review 52 (2004). See also Thoits, “Emotion Norms,” pp. 370–2.
29.
S. L. Gordon, “The Sociology of Sentiments and Emotion,” in Morris Rosenberg and Ralph H. Turner, eds., Social Psychology: Sociological Perspectives (New York: Basic Books, 1981), p. 563.
30.
Cahill, “Emotional Capital”; C. Froyum, “The Reproduction of Inequalities through Emotional Capital: The Case of Socializing Low-Income Black Girls,” Qualitative Sociology 33 (2010), pp. 37–8; M. Rosenberg, “Reflexivity and Emotions,” Social Psychology Quarterly 53 (1990).
31.
On the concept of framing rules see Hochschild, “Emotion Work.”
32.
Cahill, “Emotional Capital,” p. 112; Reay, “Gendering Bourdieu’s Concepts,” p. 70.
33.
Hochschild, The Managed Heart; Thoits, “Emotion Norms.”
34.
Norbert Elias, The Civilizing Process. Sociogenetic and Psychogenetic Investigations, trans. Edmund Jephcott (Malden, MA: Blackwell Publishing, 1982). For this argument, see also S. L. Gordon, “Social Structural Effects on Emotions”; C. Wouters, “On Status Competition and Emotion Management: The Study of Emotions as a New Field,” Theory, Culture & Society 9 (1992), pp. 229–52.
35.
Hochschild, The Managed Heart (service industries); Cahill, “Emotional Capital” (mortuary science students).
36.
Michael Lewis and Carolyn Saarni, The Socialization of Emotions, Genesis of Behavior (New York: Plenum Press, 1985).
37.
Melvin L. Kohn, Class and Conformity: A Study in Values, with a Reassessment, 2nd edn. (Chicago: University of Chicago Press, 1977); Annette Lareau, Unequal Childhoods: Class, Race, and Family Life (Berkeley, CA: University of California Press, 2003).
38.
Hochschild, “Ideology.”
39.
But see Reay, “Gendering Bourdieu’s concepts of capitals?,” which argues that the connection between emotional capital and class stratification may be weaker than for other capitals.
40.
H. Notwotny, “Women in Public Life in Austria,” in Cynthia Fuchs Epstein and Rose Laub Coser, eds., Access to Power: Cross-National Studies of Women and Elites (London: Allen & Unwin, 1981), pp. 147–56.
41.
See Lewis and Saarni, The Socialization of Emotions.
42.
Thoits, “Emotional Deviance,” p. 181.
43.
Francesca M. Cancian, Love in America: Gender and Self-Development (Cambridge: Cambridge University Press, 1987); Cancian and Gordon, “Changing Emotion Norms in Marriage: Love and Anger in U.S. Women’s Magazines since 1900,” Gender and Society 2(3) (1988).
44.
See S. A. Bandes, “Introduction,” in Susan A. Bandes, ed., The Passions of Law (New York: New York University Press, 1999), pp. 1–15.
45.
E. A. Posner, “Law and the Emotions,” Georgetown Law Journal 89 (2001), pp. 1977–2012, at 1978.
46.
For pioneering studies on law and emotions, see Bandes, The Passions of Law; Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton, NJ: Princeton University Press, 2004).
47.
S. A. Bandes, “Child Rape, Moral Outrage, and the Death Penalty,” Northwestern University Law Review Colloquy 103 (2008), pp. 17–28; T. A. Maroney, “The Persistent Cultural Script of Judicial Dispassion,” California Law Review 99 (2011), pp. 629–81.
48.
See, e.g., Cass R. Sunstein et al., Punitive Damages: How Juries Decide (Chicago, IL: University of Chicago Press, 2003).
49.
T. A. Maroney, “Emotional Common Sense as Constitutional Law,” Vanderbilt Law Review 62 (2009), pp. 851–917 (analyzing assumptions about emotions in the Supreme Court constitutional jurisprudence in in cases of free speech, capital sentencing and abortion); A. E. Taslitz, “Race and Two Concepts of the Emotions in Date Rape,” Wisconsin Women’s Law Journal 15 (2000), pp. 3–76 (discussing how differential assumptions about emotions across gender and race have historically influenced judges’ decisions in date rape cases).
50.
See e.g., Phyllis Chesler, Mothers on Trial: The Battle for Children and Custody, 2nd edn. (Chicago, IL: Lawrence Hill Books, 2011); Mary Lay Schuster and Amy D. Propen, Victim Advocacy in the Courtroom: Persuasive Practices in Domestic Violence and Child Protection Cases (Boston, MA: Northeastern University Press, 2011); Andrew E. Tazlitz, Rape and the Culture of the Courtroom (New York: NYU Press, 1999).
51.
For a selection of works explicitly evaluating the role of emotions for judicial decision-making, see, e.g., K. Abrams, “‘Fighting Fire with Fire’: Rethinking the Role of Disgust in Hate Crimes,” California Law Review 20 (2002), pp. 1423–64; S. A. Bandes, “Emotions, Values and the Construction of Risk,” University of Pennsylvania Law Review PENNumbra 156 (2008), pp. 421–34, 
(accessed August 12, 2011); D. M. Kahan and M. C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” Columbia Law Review 96 (1996), pp. 269–374; Maroney, “Emotional Common Sense”; V. Nourse, “Passion’s Progress: Modern Law Reform and the Provocation Defense,” Yale Law Journal 106 (1997), pp. 1331–448; S. H. Pillsbury, “Emotional Justice: Moralizing the Passions of Criminal Punishment,” Cornell Law Review 74 (1989) pp. 655–710.
52.
For research on the connection between emotional cultures and economic or social structures, see, e.g., Cancian and Gordon, “Changing Emotion Norms”; Eva Illouz, Cold Intimacies: The Making of Emotional Capitalism (Cambridge: Polity Press, 2007); Carol Zisowitz Stearns and Peter N. Stearns, Anger: The Struggle for Emotional Control in America’s History (Chicago, IL: University of Chicago Press, 1986); E. West, “Digital Sentiment: The ‘Social Expression’ Industry and New Technologies,” Journal of American and Comparative Cultures 25 (2002), pp. 316–26; E. West, “Mass Producing the Personal: The Greeting Card Industry’s Approach to Commercial Sentiment,” Popular Communication 6 (2008), pp. 231–47.
53.
See e.g., S. A. Bandes, “Group-Conflict Resolution: Sources of Resistance and Reconciliation: Victims, ‘Closure,’ and the Sociology of Emotions,” Law and Contemporary Problems 72, pp. 1–26.
54.
Gordon, “Social Structural Effects.”
55.
Mihaela Popescu, “Keeping It Dirty: Defining and Redefining Obscenity in American Judicial Discourse, 1873–2007,” unpublished PhD thesis, University of Pennsylvania, 2008.
56.
“Yet, if the time is not yet when men think innocent all that which is honestly germane to a pure subject, however little it may mince its words, still I scarcely think that they would forbid all which might corrupt the most corruptible, or that society is prepared to accept for its own limitations those which may perhaps be necessary to the weakest of its members. If there be no abstract definition, such as I have suggested, should not the word ‘obscene’ be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?” United States v. Kennerley, 209 F. 119 (S.D.N.Y, 1913).
57.
See United States v. Dennett, 39 F.2d 564 (2nd circuit, 1930); United States v. One Obscene Book Entitled “Married Love,” 48 F.2d 821 (D.C.N.Y., 1931); United States v. One Book. Entitled “Contraception,” 51 F.2d 525 (D.C.N.Y, 1931).
58.
Judge Woolsey’s formulation in 1933 was twenty years later identified as “the keystone of the modern American rule that indictable obscenity must be ‘dirt for dirt’s sake.’” See New Am. Library of World Literature, Inc. v. Allen, 114 F. Supp. 823 (N.D. Ohio 1953), p. 830.
59.
For an in-depth review of the cases preceding Ulysses, see generally S. Gillers, “A Tendency to Deprave and Corrupt: The Transformation of American Obscenity Law from Hicklin to Ulysses II,” Washington University Law Review 85 (2007), pp. 215–96.
60.
Roth v. United States, 354 U.S. 476 (S. Cr. 1957), p. 489.
61.
J. R. Alexander, “Roth at Fifty: Reconsidering the Common Law Antecedents of American Obscenity Doctrine,” The John Marshall Law Review 41 (2008), pp. 393–433, note 6.
62.
Barney G. Glaser and Anselm L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (New York: Aldine de Gruyter, 1967).
63.
Barney G. Glaser, Theoretical Sensitivity: Advances in the Methodology of Grounded Theory (Mill Valley, CA: Sociology Press, 1978), pp. 42–4.
64.
Melville Clyde Kelly, United States Postal Policy (New York: D. Appleton and Company, 1931), p. 20.
65.
David M. Henkin, The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America (Chicago, IL: University of Chicago Press, 2006), pp. 21–2; Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995), pp. 28–30; Kelly, United States Postal Policy, pp. 37–43; Arthur E. Summerfield and Charles Hurd, U.S. Mail: the Story of the United States Postal Service (New York: Holt, 1960), pp. 13–14.
66.
Wayne Edison Fuller, Morality and the Mail in Nineteenth-Century America (Urbana, IL: University of Illinois Press, 2003), pp. 1–48; Henkin, The Postal Age, pp. 148–61; Helen Lefkowitz Horowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth-Century America (New York: Knopf, 2002), pp. 299–313.
67.
Dorothy Ganfield Fowler, Unmailable: Congress and the Post Office (Athens, GA: University of Georgia Press, 1977), pp. 55–8.
68.
17 Stat. 283.
69.
Ganfield Fowler, Unmailable, p. 59.
70.
See generally David J. Pivar, Purity Crusade: Sexual Morality and Social Control, 1868–1900 (Westport, CT: Greenwood Press, Inc., 1973).
71.
C. F. Kaestle, “Standardization and Diversity in American Print Culture, 1880 to the Present,” in Carl F. Kaestle, ed., Literacy in the United States: Readers and Reading since 1880 (New Haven, CT: Yale University Press, 1991), pp. 272–93.
72.
Paul S. Boyer, Purity in Print. Book Censorship in America from the Gilded Age to the Computer Age, 2nd edn. (Madison, WI: The University of Wisconsin Press, 2002), pp. 15–20.
73.
“Obscene Literature,” The New York Times, March 15, 1873.
74.
Act of March 3, 1873.
75.
For this understanding of lust and its importance as evidentiary criterion in obscenity cases at the beginning of the twentieth century, see William B. Lockhart and Robert C. McClure, “Obscenity in the Courts,” Law and Contemporary Problems 20 (1955), pp. 587–607.
76.
L. A. Wackwitz, “’Burger on Miller; Obscene Effects and the Filth of a Nation,” Journal of Communication 52 (2002), pp. 196–210.
77.
Dean, “A Social Structure of Many Souls,” pp. 145–68.
78.
“The words ‘obscene,’ ‘lewd’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity”. Swearingen v. United States, 161 U.S. 446 (S. Cr. 1896), p. 451.
79.
Both anger and disgust are generally considered basic emotions that distance the individual experiencing them from a noxious agent. See James R. Averill, Anger and Aggression: An Essay on Emotion (New York: Springer-Verlag, 1982); D. M. Kahan, “The Progressive Appropriation of Disgust,” in Bandes, Passions, pp. 63–79; M. C. Nussbaum, “‘Secret Sewers of Vice’: Disgust, Bodies and the Law,” in Bandes, Passions, pp. 19–62.
80.
I am referring, of course, to the famous Learned Hand opinion which, for the first time, denounced the Hicklin standard as a mutilation of worthy literature in the interest of “the salacious few,” United States v. Kennerley, 209 F. 119 (S.D. N.Y. 1913).
81.
G. L. Priest, “The New Legal Structure of Risk Control,” Daedalus 119 (1990), pp. 207–27; J. Simon, “The Ideological Effects of Actuarial Practices,” Law and Society Review 22 (1988), pp. 771–800.
82.
For example, the rationale for the prohibition of obscene language on the envelopes, “that not only may postal patrons be protected from defamation exposed to postal employees, but also that postal employees may be protected from obscenity exposed to and thrust upon them.” See United States v. Anderson, 268 F. 696 (D. Mont. 1920), p. 697.
83.
Nicola Kay Beisel, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America, Princeton Studies in American Politics (Princeton, NJ: Princeton University Press, 1997); Alison M. Parker, Purifying America: Women, Cultural Reform, and Pro-Censorship Activism, 1873–1933 (Urbana, IL: University of Illinois Press, 1997).
84.
Nussbaum, Hiding from Humanity, p. 184.
85.
Clark, “Emotions and Micropolitics.”
86.
Shott, “Emotion and Social Life”; Thoits, “Emotion Norms.”
87.
Beisel, Imperiled Innocents, p. 57.
88.
For a discussion of status policy, see R. Tatalovich and T. A. Smith, “Status Claims and Cultural Conflicts: The Genesis of Morality Policy,” Policy Currents 10 (2001), pp. 2–22.
89.
R. C. Post, “The Social Foundation of Defamation Law: Reputation and the Constitution,” California Law Review 74 (1986), pp. 691–742.
90.
Erving Goffman, Stigma; Notes on the Management of Spoiled Identity (Englewood Cliffs, NJ: Prentice-Hall, 1963).
91.
Goffman, Stigma.
92.
Similarly, anti-seduction statutes only recognized the claims of “respectable” women. Lawrence Meir Friedman, Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford, CA: Stanford University Press, 2007), p. 106.
93.
Friedman, p. 11.
94.
Barbara Welter, Dimity Convictions: The American Woman in the Nineteenth Century (Athens, OH: Ohio University Press, 1976), pp. 3–41.
95.
One needs to distinguish between “virtues” (understood to be perennial) and “values” in the modern acceptation (understood to be relative to particular times and group memberships), term that received currency in the twentieth century. For Victorian mentality, virtues such as chastity and modesty were “fixed and certain … they were the standards against which behavior could and should be measured. The standards were firm even if the behavior of individuals did not always measure up to them.” See Gertrude Himmelfarb, The De-Moralization of Society: From Victorian Virtues to Modern Values (New York: A.A. Knopf, 1995), pp. 12–13.
96.
William Wasserstrom, Heiress of All the Ages; Sex and Sentiment in the Genteel Tradition (Minneapolis, MN: University of Minnesota Press, 1959), p. 126. See also Welter, Dimity Convictions, p. 20.
97.
Welter, Dimity Convictions, pp. 3–41.
98.
See United States v. Dennett, 39 F. 564 (2d Cir. 1930), p. 569.
99.
Ibid.
100.
Interestingly, by liberating from the taint of obscenity instructional manuals meant to empower women such as Mary Stoppes’ “Married Love,” judges recognized and implicitly accepted feminist points of view on marriage, which “emphasizes the woman’s side of sex questions” (United States v. One Obscene Book Entitled “Married Love,” 1931).
101.
Foucault, Discipline and Punish; Michel Foucault, The History of Sexuality. An Introduction, trans. Robert Hurley (New York: Vintage Books, 1990); See also M. Foucault, “The Subject and Power,” in James D. Faubion, ed., Power (New York: New Press, 2000), pp. 326–48.
102.
Foucault, Discipline and Punish, p. 170.
103.
Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–79 (New York: Palgrave Macmillan, 2008), p. 67.
104.
Foucault, Discipline and Punish, p. 202.
105.
See Gordon, “Social Structural Effects.”
106.
John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America, 2nd edn. (Chicago, IL: University of Chicago Press, 1997), pp. 239–74.
107.
See Stanley Coben, Rebellion against Victorianism: The Impetus for Cultural Change in 1920s America (New York: Oxford University Press, 1991); D’Emilio and Freedman, Intimate Matters; Andrea Friedman, Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909–1945 (New York: Columbia University Press, 2000).
108.
For a similar interpretation of a disciplinary approach to obscenity regulation see P. A. Passavant, “Governing Sexuality. The Supreme Court’s Shift to Containment,” in Lisa C. Bower, David Theo Goldberg and Michael C. Musheno, eds., Between Law and Culture: Relocating Legal Studies (Minneapolis, MN: University of Minnesota Press, 2001), pp. 306–8.
109.
For the argument that the English middle class defined its identity through moral regulation and a new emotional culture created by moral activists, see P. Corrigan, “On Moral Regulation: Some Preliminary Remarks,” in Philip Corrigan, Social Forms/Human Capacities. Essays in Authority and Difference (London: Routledge, 1990), pp. 102–29; Philip Corrigan and Derek Sayer, The Great Arch (London: Basil Blackwell, 1985); Paul Langford, A Polite and Commercial People: England 1727–1783 (Oxford: Oxford University Press, 1989), pp. 59–71; M. J. D. Roberts, Making English Morals: Voluntary Association and Moral Reform in England, 1787–1886 (Cambridge: Cambridge University Press, 2004), pp. 33–57.
110.
Hochschild, “Ideology” and “Emotion Management.”
111.
As late as 1960, the Court of Appeals for the Fifth Circuit sustained a conviction against an appellant who mailed debasing letters to his girlfriend. The Court wrote: “Couched in shocking and disgusting language, fit for use only in gutters, brothels, and like places, the letters vilified, defamed, and, as far as the reading of such language could do it, sought to debase and defile the woman to whom they were addressed.” Cain v. United States (5th Cir. 1960, p. 600). This example speaks to an enduring legal assumption of the social vulnerability of females to sexually explicit communication.
112.
Popescu, “Keeping It Dirty.”
113.
See e.g, Janice Irvine’s recent work in which she argues that the scripting of sex panics reveals a strategy for creating emotional publics and public sentiments for political gain. J. M. Irvine, “Transient Feelings. Sex Panics and the Politics of Emotions,” in Gilbert H. Herdt, ed., Moral Panics, Sex Panics: Fear and the Fight over Sexual Rights (New York: New York University Press, 2009), pp. 234–76.