A hundred years of over-baring censors

By R.L.

WHEN does nudity on film become porn? It’s a blush-inducing question that has lacked a clear answer for a century now: On November 18th it will be 100 years since a naked woman first appeared on American screens, in the film "Inspiration", but censors still grapple with the nuances, vague rules of thumb and subjectivity.

The bare breasts and buttocks of Audrey Munson, the actress in "Inspiration", seemed to enter the public consciousness only obliquely. One contemporary critic wrote that the film was "both inspiring and intellectual", with Munson giving a performance of "innocence, modesty, and simplicity"; others noted that it was "daring" and a "triumph of Film Art". One, the Daily Capital Journal, scoffed at the idea of anyone being offended by it. After all, it pointed out, this is a work of "extreme artistic and educational value", not a titillating striptease.

The authors of the Motion Picture Production Code, which came into effect in 1930, were rather more categorical about the bare human body. Nudity, they argued, is never justified; it "may be beautiful [but that] does not make its use in the films moral". All actors, directors, and producers were strictly warned against showing the naked body. The 1954 film "The Garden of Eden", about a nudist camp, inevitably fell afoul of the code, despite the best efforts of the film’s cinematographers to avoid showing any offending organs. The Board of Regents of the State of New York refused a license unless all shots of naked bodies were excised from the final reel—impossible in a film exploring the joys of nudism. The Board stood firm: who knew what the sight of naked adults and children could do to "morons of all types, sex deviates, and even teenagers of little moral stamina"? Walter Bibo, one of the film’s producers, appealed: "Mere nudity", he argued, "is neither indecent nor obscene." New York’s Supreme Court agreed. Nudity is utterly repulsive to some and oddly appealing to others, the judges argued, but that does not make it obscene. The ban was lifted.

What followed was a series of vague attempts to legally separate the merely lewd wheat from the pornographic chaff. The 1957 Roth test states that a film is obscene if, according to the average person applying community standards, the work is found to have an excessive, prurient interest in sex. The work must be judged in its entirety, and found to be "utterly without redeeming social importance". Given that the "community" refers to all 50 American states, each with its own tolerance thresholds and qualms, this was not particularly workable. Subjectivity creeps in again when deciding whether a work has "social importance". When in 1964 Potter Stewart, a Supreme Court justice, tried to apply Roth to the out-of-shot adulterous romping in Louis Malle’s romance "Les Amants", his description of pornography became a byword for woolly subjectivity: "I know it when I see it."

Nothing much having been cleared up by that (Justice Stewart being unavailable to watch all of the country's smut in order to give case-by-case rulings), in 1973 the Roth test was scrapped in favour of the Miller Test. It kept the part about community standards and prurient interest, but added that to be considered pornographic a work must also show sexual acts such as masturbation, excretory activities, and exhibition of the genitals "in a patently offensive way". Such a film could still be saved from the censor’s wrath if it offered "serious literary, artistic, political, or scientific value". This was just another way of begging the question, though. Serious artistic value is a moving target too.

In 1974, the Supreme Court overturned an obscenity ruling from Georgia, where a cinema owner had been prosecuted for showing "Carnal Knowledge" by Mike Nichols, the Oscar-winning director of "The Graduate". The Court felt that there was nothing "patently offensive" shown in the film. Although at one point the viewer understands (via shots of an empty apartment overlaid with loud noises of sexual enjoyment) that sexual congress is taking place, all the action, so to speak, takes place off-screen. There are small bursts of nudity—figures on a bed obscured by shadows, a glimpse of Art Garfunkel’s pubic hair as he changes after swimming—but no exhibition of genitals, and no "hard-core sexual conduct". Viewers today might wonder what all the fuss was about.

In the hundred years since "Inspiration" there has been a seismic shift in society’s reactions to sex on screen. The nudity that was once "bold" and "daring" is now commonplace: hardly a rom-com goes by without a sex scene. Sexually explicit films are released without the batting of a censorial eyelid. Lars Von Trier’s "Nymphomaniac", a film complete with a triumvirate of fellatio, sadomasochism and threesomes, is considered his magnum opus (to say nothing of the on-screen clitoridectomy in his "Antichrist"). Critics assume that sex on screen is not just sex but a comment on society’s values, human desire, or artistic expression. More often than not it passes the Miller test, which is still in use today.

The future of obscenity law is murky and uncertain. Modern moralists worry about the ubiquity of porn—stuff that nobody even bothers to argue has artistic merit. But some brave teachers are trying to make a virtue of it. Sexually explicit material can also be used to spark classroom discussion on topics such as safe sex and gender equality, as some teachers in Denmark are already doing. The hope is that talking frankly will mean that when it comes to issues like sexual consent, the next generation will know it when they see it.