Constructing the Meaning of Obscenity: An Empirical Investigation and an Experientialist Account

Abstract

This paper takes a bottom-up approach to empirically investigate how people construct the meaning of obscenity, and offers an experientialist, cognitive linguistic account to explain why the term appears to defy definition and makes a problematic legal concept. To study the contextual dependence of the term, we examined the extent to which various item characteristics (such as genre, context, and the race or celebrity status of the people portrayed) and individual variables (such as gender, religion, sexual orientation and previous personal and cultural experiences) influence our perception of seemingly obscene materials. We report correlations that have not been previously shown. The data support the thesis that the meaning of obscenity emerges in a cognitive-affective response that arises during a dynamic process of interpretation, and thus allows for extralegal factors to influence judgment. The results challenge the assumption that obscenity is a symbolic representation of objectively existing reality and argue that community standard of obscenity is a legal fiction.

Appendix: The Obscene Articles Tribunal

Under the control of Obscene and Indecent Articles Ordinance, the Obscene Articles Tribunal’s power to classify articles effectively provides society with an effective means of interpreting in practice the notions of obscenity and indecency. Indecency is here deemed to include violence, depravity and repulsiveness.

In arriving at the determination and classification of an article, the Tribunal is called upon by law to take account of:

• the standards of morality, decency and propriety that are generally accepted by reasonable members of the community;

• the dominant overall effect of an article or matter;

• the persons, classes of persons, or age groups intended or likely to be targeted by an article’s publication;

• in the case of matter publicly displayed, the location of such display and the persons, classes of persons, or age groups likely to view it; and

• whether the article or matter has an honest purpose or whether instead it seeks to disguise unacceptable material.

The Tribunal can classify an article as follows:

• Class I—neither obscene nor indecent;

• Class II—indecent; or

• Class III—obscene.

The Tribunal may impose conditions or restrictions relating to the publication of a Class II article. Class III articles are prohibited from being published.

For the purposes of this Ordinance:

• (a) a thing is obscene if by reason of obscenity it is not suitable to be published to any person; and

• (b) a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile.

1.1 Penalties

Anyone who publishes, possesses or imports for the purpose of publication a Class III article is liable to a fine of $1 million and to imprisonment for 3 years. Anyone who publishes an indecent article to a juvenile is liable to a fine of $400,000 and to imprisonment for 12 months on first conviction and $800,000 and imprisonment for 12 months for a second or subsequent conviction.

Anyone who fails to observe conditions or restrictions on publishing Class II articles is liable to a fine of $400,000 and imprisonment for 12 months on first conviction and to a fine of $800,000 and imprisonment for 12 months on a second or subsequent conviction.