In defense of offensive content

Months ago, I wrote a post about obscenity law in the US and how anime, game, and similar material that some people would consider offensive or objectionable fit into that framework. However, there was a key question I left hanging back then that I’d like to address now: why protect art that many might find offensive? And in particular, why protect the creation and marketing of erotic and pornographic content?

I might also be writing this because Evenicle was one of the games I got during the lunar new year Steam sale

As I wrote before, this isn’t merely an academic question, because some people seem to believe they should be allowed to enforce their personal views about art by effectively regulating the expression of people they disagree with. You’d think that socially conservative fervor of the 80s and 90s had made a comeback for some of the puritanical screeds you’ll find on Twitter, Reddit, Facebook, and all the other big social media platforms. This attitude seems to be thriving now more than ever, in fact. See Sony’s changes to their content policies over the last year and self-censorship now on the part of even Japanese developers and publishers. I certainly can’t say how much, but at least some of this is likely a reaction to these agitators. Even honest, hardworking NSFW artists on Twitter have had to bear insults and attempts at shaming online, and for what? For exercising their rights to free expression. I know I’m a complete nobody who should probably be saying these ideas while standing on top of an actual soapbox in a public park, but I’ll be goddamned if I’m going to stop talking about these issues while things remain as they are. Hence this post, in which I’ll probably once again be preaching to the choir. But I welcome anyone who disagrees with me to read through my arguments and post a comment challenging them.

As before, I’ll be looking at this question partly from the legal perspective, with all the same disclaimers contained in my last post on the subject: none of this constitutes legal advice, it’s all probably nonsense, etc. etc. If you haven’t read that post, I’d recommend it anyway — you don’t have to read that one to understand this one, but it does provide some background to what I’m writing about here. Again, I’ll be addressing the situation here in the United States because that’s where I live and hold my license, though I do think a lot of the following arguments apply universally. And finally, if you’re tired of reading my broken record bullshit ranting and raving about art and censorship, you should probably skip this post. Drop in some other time.

First of all, what constitutes offensive art? There are probably as least as many answers to this question as there are people on Earth, so I don’t want to say I have an exact definition of the term. And I can’t refer back to the Supreme Court’s Miller v. California test here, because while it uses the term “patently offensive” in its second prong, it doesn’t define it other than to say that something patently offensive might be considered obscene. Moreover, different works of art offend different sets of people, and they offend for different reasons.

Yes, the First Amendment generally protects art from government prohibition, even if the author’s intent is mainly to offend. However, there are plenty out there who want to regulate art on the basis of its content, whether they perceive it to be too violent, or too sexual, or expressing an unacceptable political or social opinion. While these people aren’t anywhere near a majority of the consumer base, they’re fanatical and vocal enough to have their views taken into account by developers and publishers who will sometimes practice self-censorship simply to try to avoid a controversy.

I still don’t know if that’s why Nintendo censored Tharja’s butt in the Fire Emblem: Awakening DLC. I guess a tame bikini shot was just too much for American 3DS owners to handle.

I suppose it’s very obvious by now how I feel about these self-appointed guardians of purity and their efforts to strictly define the boundaries of what’s acceptable in art. I believe that people should have the right to enjoy any kind of art they like as long as that art doesn’t involve causing harm to others.1 My belief in protecting the integrity (and even the sanctity if you want to get really lofty about it) of art and its free enjoyment has a simple basis: that none of us chose to be born on Earth, into whatever society we happen to live in, so why shouldn’t we be able to escape from our daily lives however we wish? It doesn’t seem right that anyone should be prevented from getting their escapism in whatever way works best for them, and I’ll defend this position until I’m cold and dead in the ground.

Okay, so maybe I’m getting a little dramatic. But I feel just that strongly that people should be able to create and enjoy art freely. To that end, I’ve made a very incomplete roadmap of arguments to defend that position. I also have to admit that I feel this strongly in part because the above-mentioned fanatics like to go after some of the developers I like for their inclusion of erotic or even just plain pornographic content into their games. I’m not talking about criticism here, to be clear: I have no problem with someone saying they think a game or anime series I like is lousy for reasons I disagree with. Reasonable people can and do disagree about the quality of art — that in itself is completely normal. No, my arguments are directed against those who pressure developers and publishers to self-censor and who support restricting the sales of these kinds of works, banning them from online platforms, or taking similar action.

These are also purposely written as defenses, not as attacks. I’m not really interested in attacking anyone else’s personal views, just as long as said views aren’t put into practice with the effect of restricting the legitimate freedoms enjoyed by all the rest of us. Again, if you disagree with anything I’ve written below, please feel free to post a comment. Same if you’ve found a hole in any of my counterarguments.

So let’s begin. I’ll throw out some of the most common attacks I’ve heard along with my responses to them.

The distribution of socially harmful works should be restricted for the public good.

This is probably the most common argument I’ve seen in favor of censorship or heavy regulation, and probably because it’s one of the more convincing arguments its proponents have. While I don’t see much of a problem with pornography in itself, it’s true that its excessive use can hurt a relationship if it’s diverting attention from one or both of the partners. The same might even go for milder forms of erotic art, though it seems a lot less likely to be the case the tamer the content gets.

However, this is not a valid argument to restrict such content, much less to ban it from certain platforms. There are plenty of perfectly legal habits and practices that do more demonstrable harm to the people involved in them. Gambling, drinking, and tobacco use each arguably take a far greater toll on mental and physical health, relationships, and the public good as a result. Yet they’re not banned, and nobody outside of a few on the political fringes seriously suggest they should be. They’re regulated to some extent, but beyond that people are free to enjoy such potentially destructive habits. So unless the person making this argument is also advocating for the banning of all potentially socially harmful vices, it comes off as disingenuous. Even if some people may find a way to use such material irresponsibly, it doesn’t follow that it should be banned or strictly regulated.2

Not unless something like this ends up happening, and even then I’m probably okay with it.

That’s not even mentioning the fact that some works containing erotic content deliver what most people would consider positive social messages. Interspecies Reviewers, for example, has stirred up controversy for its sexual content, but from what I’ve seen of it, the manga and anime both express ideas of acceptance and diversity in a natural, non-stilted way. The content is certainly sexual, but the message is a good one. The same is true of many other works that take hits for being “fanservice garbage” or “basically porn” without regard for their context. In fact, a lot of the proponents of censorship don’t seem very interested in considering context. But context is everything. It’s what gives content its meaning. How can it be ignored if the argument is based on the supposed harm an artistic work might do to society? It’s also worth mentioning that there’s a difference between erotic and pornographic material, and also between non-sexual nudity and sexual content — differences that rely upon context. Context that, again, all too often goes ignored.

But nobody’s talking about a government ban.  Calls for the artists and the game industry to self-regulate have nothing to do with First Amendment rights.

It’s true that this isn’t a First Amendment issue, at least in the way these arguments are normally made. Groups that pressure artists to self-censor can claim that much. However, self-censorship can create the same kind of chilled environment for art that government censorship can, to the point that there may be no real difference between the two.

This isn’t just a hypothetical situation. It’s occurred throughout our modern history, both before and after the landmark Miller case. Looking back to the 1950s, we can find the Comics Code Authority, a private organization created by the comic book industry to regulate its own product. See also the Hays Code, which from the 1930s to the 1960s strictly regulated content in American films that the MPAA perceived as carrying immoral messages. And as recently as the 1980s, the Parents Music Resource Center, headed up by the wives of several prominent DC politicians, pushed for the heavy regulation of rock, rap, and pop albums for their perceived violent and sexual content. Senate hearings took place in which musicians as varied as Frank Zappa and John Denver warned about the dangers of censorship of music and of art in general. These proceedings resulted in a compromise, the infamous Parental Advisory sticker, which ended up becoming a kind of badge of honor for musicians whose albums received it — presumably not the effect the PMRC had intended.

This label should have just said “BUY ME TO LISTEN TO SWEARING AND WORDS ABOUT SEX”

This is the pattern of censorship of art in America: not direct government prohibition, which would in almost every case violate the First Amendment, but rather interest groups urging politicians to “encourage” industry associations to regulate themselves (fill in the blank implied by “encourage” however you like, but money is certainly involved, at least indirectly.) Sure, that doesn’t create a First Amendment issue, but the end result is nearly identical. So why should things proceed any differently now with video games? Starting in the 1990s, interest groups of various stripes have pushed for the regulation of games. This again resulted in a compromise with the creation of the ESRB and its rating system. Which I think is a perfectly reasonable, sensible approach to the issue. Mark games with content that might be objectionable on the box and let the consumer decide what to play on that basis. Or let parents decide what games are suitable for their kids to play. The creation of this framework should have ended the controversy about objectionable video and PC game content, but naturally it hasn’t, because games make for a convenient scapegoat when bad things happen. Easier to blame this weird new popular entertainment medium than to admit that there are underlying problems in society that need fixing and trying to actually fix them.

I suppose all this boils down to the following: while it isn’t, strictly speaking, a First Amendment issue, it doesn’t really matter if the end result is effectively the same as placing a direct ban on or restriction of erotic or otherwise off-color content. That’s assuming that the various interest groups in question don’t try to have such material banned outright, which is not something we can take as a given. As I wrote in my first post on the subject, there’s no reason to believe socially conservative groups that want to tear down the wall of separation between church and state would have any love for the free speech clause of the First Amendment. And I highly doubt the group of fanatics attacking artistic integrity from the political left would care either. Extremists and fanatics in general seem to think in the same way, even if their end goals are diametrically opposed. As far as they’re concerned, freedom of expression is a right that belongs to their camp and a privilege that may or may not be extended to others depending upon what they want to express.

However, that wasn’t exactly what our founders had in mind when they signed off on the Bill of Rights. It certainly doesn’t fit with the current understanding of the First Amendment, at least not since the old English legal precedent Regina v. Hicklin was overturned by the Supreme Court back in 1957.3 The Hicklin standard that governed until the mid-20th century defined obscene and therefore bannable art by testing “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of [the] sort may fall.” Though it’s usually not stated outright, this seems to be the standard that some of those on the extreme but very vocal fringes want to return to. The trouble with Hicklin, aside from being far too broadly worded, is that it requires a moral arbiter to decide what counts as an immoral influence. I know many of our friends on the far right and left would be happy to take that role, but good luck finding any consensus on the matter. This is the sort of thing that might work in a very small community where everyone goes to the same church, but the point is the standard wouldn’t extend beyond the bounds of that community. The alternative, again, is to impose the values of one of the lunatic fringe upon the entire population.

If there’s one thing the members of ResetEra and Focus on the Family can agree on, it’s that short shorts and thick thighs in video games are a terrible and corrupting influence on their players

So you’re that willing to defend your anime boobs and all that stupid nonsense? There are far greater problems to deal with than this, so you should just drop the issue.

I certainly agree that the human race faces greater problems than an outfit in a game being censored when it crosses the Pacific. I don’t need to look beyond the borders of my own country to see that. Our infrastructure is crumbling, our access to health care is still inadequate, many of our public schools lack funding, and our political system is currently being put through a stress test that it might not pass.

However, this argument is still worthless. Because we aren’t the ones creating the controversy: it’s rather those self-appointed guardians of purity on Twitter, Reddit, and elsewhere calling for developers and creators to practice self-censorship and attempting to use public shaming tactics to get their way. This is an attempted intrusion upon what I see as the artist’s right to create and the consumer’s right to enjoy art. If they want to blame anyone for manufacturing a controversy that might distract from more important issues, they should blame themselves.

You should get a life/get out of your parents’ basement/etc.

I only include these lines because they and others like them are thrown around so often in arguments about erotic and pornographic content in anime and games as if they had any bearing at all. In politics, irrelevant personal insults thrown around wildly can sometimes lead you to victory (just look at our current chief executive for proof of that.) However, when we’re trying to get to the truth of a matter, they’re merely a distraction. They’re also effectively an admission that your opponent in the argument has nothing left, so you may as well quit the conversation at that point.

Even supposing that people living in their parents’ basements who don’t get out much automatically lose the argument (which makes no sense whatsoever) it’s worth mentioning that fans of anime, manga, and games that may sometimes include some spicy content are all types of people living in all types of situations. But no, please keep ignoring that fact. Just keep throwing those bullshit insults around. We’re all antisocial unskilled basement-dwelling man-children. Oh yeah, and we’re all members of the alt-right too. Every one of us!

Just let me brush tails in peace. That’s all I want, is that so much to fucking ask

But how am I supposed to take you seriously when you’re placing a screenshot from a porn game in your serious post about law and art?

Okay, maybe you have a point, hypothetical opponent.

Then again, this is part of the point I’m trying to make. I will admit that certain expressions may be so extreme that the risk they pose to society outweighs the value of allowing them to be expressed. As an example, let’s say a group of people wants to stage public orgies, right out in the open. You could make a decent argument that this counts as an artistic expression depending upon how it’s staged, but aside from the fact that such an expression would violate existing public decency laws, I don’t believe it’s right to subject the general public to such an extreme display. However, many of the expressions people take issue with are nowhere near that extreme hypothetical. If your plan is to banish all depictions of nudity from society, you’d better start going around all the art galleries in the country loaded up with cans of spray paint. And in any case, to demand the regulation of what a person is allowed to enjoy in the privacy of his or her own home, no matter whether it counts as pornographic — that’s a different matter entirely.

Anyway, what do you think, reader? Am I insane? That’s entirely possible. I’m just tired of the unbearable smugness of these knights of purity, those guardians of propriety who think they can just enforce their views without any meaningful opposition. As long as people are too squeamish to talk about erotic and pornographic content, the pro-censorship and pro-restriction camp will have the advantage, and they will use it. So let’s not be shy about the matter. Our arguments can and should always be well-reasoned and civil, but we shouldn’t feel compelled to blunt them just because we think we’re on the less socially acceptable side. If I even possessed a few remaining fucks about what society thought of me anyway, being a lawyer for the last few years has taken them from me.

And now that I’ve given my big Braveheart speech, I’m done. I know there are plenty of people out there saying the same sorts of things I’ve written here, and many more thinking them, so it’s not exactly like we’re a lonely bunch. It can be easy to forget that sometimes, though. I also wanted to expand upon what I wrote in that first post and fill out the “why” part of it that I felt was lacking there. I hope I was able to do that without rambling too much. Next time, I’ll probably be both calmer and more coherent. Until then. 𒀭


1 I may as well throw intentional harm towards animals in this category to expand it to all sentient beings — I’m absolutely not a vegetarian, but I also don’t like the idea of harming animals for mere entertainment. It’s not an especially brave stance I’m taking here, I know.

2 This is the same argument proponents of cannabis legalization like to use, and I agree with it in that context too. I just don’t talk about it here because it’s not relevant to the subject matter of the site. Neither is politics in general, except when it intersects with art as it does in this case.

3 If you’re wondering why US courts were applying UK law in this case, it’s because US law was originally based on the old English common law system, and so the courts and even Congress would sometimes use an English precedent to base their rulings and bills upon when they couldn’t find an American one. Many of our own common law standards can still be traced back to the post-Norman conquest English legal framework, though you’ll hardly ever find anyone using an English or UK precedent anymore in practice. It’s also why we have so many old Norman French terms in legal jargon along with all the Latin. And no, we’re not letting go of any of it. It might be the 21st century now, but in some ways our profession is still stuck in the 13th.