Who gives a s---?

Al Goldstein, who died in December at the age of 77, left behind a tangled legacy as a smut peddler, trailblazer, moral degenerate and free speech advocate. In 1968, Goldstein started Screw magazine, the self-proclaimed “sex guide” to the seedy underbelly of New York City. Although less well known than Larry Flynt, the Hustler magazine publisher who in 1988 fought off a libel suit by the Rev. Jerry Falwell in a crucial First Amendment case, Goldstein played a similarly important role in pushing the bounds of what was considered permissible to print and say under the law and, perhaps more important, in the court of public opinion. Obscenity has not been the same since.

In 1974 federal prosecutors went after Goldstein for the material he was publishing in Screw. Just the year before, the Supreme Court further clarified its definition of obscenity in Miller v. California: material that, according to “contemporary community standards … appeals to the prurient interest,” is “patently offensive” and is lacking in “serious literary, artistic, political or scientific value.” What the court meant by “community,” however, was unclear, and the slipperiness of the term allowed federal prosecutors to go forum shopping — meaning they could pick whichever state they felt would be most amenable for a conviction. They picked Kansas.

Operating under pseudonyms, four Kansas postal inspectors subscribed to Screw, whose circulation at the time was, by and large, confined to New York City. The magazines crossed state lines, though, which meant that Goldstein could be tried in Wichita. After all, if moral decency was subjective, the prosecutors thought, surely the heartland would be more offended by the material in Screw than the average New Yorker who bore witness to the day-to-day iniquities of 42nd Street (where science-fiction writer Samuel R. Delany, for one, regularly cruised movie theaters).

By today’s standards, Screw seems almost quaint. Hand-illustrated, the magazine worked with artists such as Robert Crumb and Wally Wood (one of the founding cartoonists of Mad magazine); featured wholesome cartoon characters like Archie, Popeye and the “Peanuts” gang gone raunchy; and regularly lampooned cultural fixtures such as President Richard Nixon, The New Yorker and Hugh Hefner. In its early years, the magazine had a certain cool, doing interviews with the likes of John Lennon and Yoko Ono, the legendary film critic Judith Crist, Jon Voight and Sammy Davis Jr. It wasn’t exactly a porn magazine because instead of doing photo shoots, it republished stock photos of naked hippies, sometimes pasting the heads of public figures on top of them. “As porn magazines go, it was a real piece of crap,” said Danny Hellman, an illustrator who drew more than 200 covers for Screw. “There was nothing erotic about it.”

The prosecution of Goldstein is, perhaps, a relic from a bygone era. In 2007the trailer for the pornographic film “Hungry Bitches,” better known as “2 Girls 1 Cup,” went viral, spawning an entire subgenre of reaction videos on YouTube — videos of people’s reactions as they watched the trailer for the first time. We have become a culture that not only delights in the obscene, the base and the scatological but has also found ways to bond over our mutual disgust. Indeed, how would the government apply “contemporary community standards” to obscenity in the age of the Internet?

“The problem is, given that we live in a sea of pornography, it’s hard to prove that anything violates these standards these days,” Amy Adler, a professor of law at New York University, said in an interview. “A defense lawyer can very easily stand up and say, ‘Yeah, you want to see what your county’s Google search was in terms of porn?’” In other words, any U.S. resident, from Alabama to California, with a modem and some creative search terms can find something to suit her sexual fancy. The difficulty of winning obscenity cases made the government more reluctant to pursue them. Plus, there were obscenity law’s more embarrassing episodes: In 1990, prosecutors targeted Cincinnati’s Contemporary Arts Center for displaying Robert Mapplethorpe’s photographs of nude men. (They failed.)

The result has been that, at least under Democratic presidents, pursuing obscenity cases has been folded into the more pressing issue of child exploitation. There is a moral certitude about child pornography that unites advocacy groups on all sides. Under Bill Clinton’s administration, a quiet policy shift saw the Department of Justice devoting more of its resources toward pursuing convictions for child pornography than adult pornography. Federal prosecutions of obscenity went from 44 cases in 1992 to 20 in 2000, whereas they increased fivefold for child pornography, from 104 to 563, during the same period.

Under George W. Bush, obscenity staged a brief comeback, when U.S. Attorney General Alberto Gonzales created the Obscenity Prosecution Task Force after leaders from the religious right pressured the administration into doing more to stanch the flow of adult pornography. Gonzales made obscenity one of his explicit priorities, singling it out as one of the “crimes that tear at the fabric of society.”

The task force may have simply been another instance of the office of the attorney general throwing moral conservatives a bone; in practice, it tended to pursue the fringes of the porn industry. In 2007 it indicted shock artist Ira Isaacs for producing and distributing films involving bestiality and feces consumption. While the Isaacs conviction may be evidence that even an arguably more porn-friendly California jury would find some material prurient, it is far from clear whether the eventual conviction procured in 2012 — five years and two mistrials later — was a good use of resources. Current Attorney General Eric Holder seems to agree. In the spring of 2011, the Department of Justice dissolved the task force, saying the Child Exploitation and Obscenity Section was better equipped to handle cases, effectively returning adult obscenity to the back burner.

Since obscenity is still one of the few instances of unprotected speech under the First Amendment, it has lately been used as a fail-safe when other laws have not passed constitutional muster. For instance, the Supreme Court struck down a law criminalizing depictions of animal cruelty in U.S. v. Stevens, a case involving dog-fighting videos, arguing that it violated the First Amendment. Congress subsequently passed a narrower law banning crush videos — usually films of stiletto-heeled women crushing small animals — by invoking obscenity law. In April 2013, however, Texas district Judge Sim Lake dismissed the first case prosecuted under the new law, ruling that crush videos were not obscene because they did not depict sexual conduct and therefore failed the Miller test.  

In fact, the market — more than the government — may be a powerful arbiter of speech in regulating acceptability and access. Brand image and the bottom line are more significant determinants for how obscenity plays out in the public sphere than federal intervention is. For instance, bending to pressure from conservative Christian groups, the Marriott hotel chain decided in 2011 that it would no longer allow pornographic content to be available in its rooms. The move wasn’t prompted by a concern over violating obscenity law. Rather, it was done to protect the squeaky-clean image of two brands: the hotel’s and that of one of its board members, then–presidential hopeful Mitt Romney.