I’m back again! For a while I might be down to an episode every few weeks as I complete my road to recovery. So I am especially thankful that you are accompanying me on that journey. I’ll try to stay as relevant and current as ever.
But to begin our story today, we have to go back in time a little.
In 1868 there was an English court case, Regina v. Hicklin, which set the course for the way we view appropriate public discourse for about a century. This case established the Hicklin test, which said that all material tending “to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall,” was obscene, regardless of its artistic or literary merit.
At the outset, that may seem rather innocuous. But we have to consider what this is saying. “Those whose minds are open to such immoral influences.” Who is that? Well, in that day and time it meant those who were simple or innocent – servants, women, and children. And “into whose hands a publication of this sort may fall.” So whoever might accidentally pick it up.
Think about that for a minute. If it is inappropriate for a child who might accidentally pick it up, it is obscene. That’s a pretty strict definition. I don’t know about you, but I have a different understanding of what is appropriate for me than my 13-year-old. And I’m pretty liberal with my 13-year-old. But just because I won’t let my kid see it, does that mean I wouldn’t let any adult see it? No, that’s ridiculous. Adults have different standards than kids. But the Hicklin test didn’t acknowledge that. But it wasn’t until 1957, with Roth v. United States, that that changed.
This whole “protect” the children mentality is used as an excuse for a lot of unsettling behavior. QAnon survived on a platform of “Save the Children” for months at a time.
According to Amanda Seitz,
The “Save the Children” effort emerged earlier this year  as a splinter movement from QAnon, the group of internet conspiracy theorists who believe without evidence that President Donald Trump is secretly fighting a supposed network of celebrities and government officials who are running a child trafficking ring.
The movement’s rise has complicated the efforts of the humanitarian organization called Save the Children and other nonprofits that work to help the world’s needy children.
Some social media users have been introduced to QAnon through posts about child sex trafficking that use #SavetheChildren. Facebook and Instagram tried to squelch those QAnon recruitment efforts (last month) by directing people who search for #SavetheChildren to the official website for the humanitarian organization.
But the connections among “Save the Children,” QAnon, and Trump still permeate social media.
Instagram, Facebook and Twitter accounts regularly use #SavetheChildren to promote memes and conspiracy theories about Democrats.
But this “Save our Children” rhetoric isn’t new to this decade.
Jillian Eugenios recounts this episode from 1977.
At a public hearing in Dade County, Florida, parents were enraged. The nation, they said, was in peril and children were at risk. A recent ordinance had granted gay people housing and employment protections, and that meant teachers couldn’t be fired because of their sexuality. Florida classrooms quickly became a battleground, and opponents of the ordinance said the state’s support of civil rights for homosexuals was infringing on their rights as parents.
Action had to be taken, and a campaign to limit the legal rights of LGBTQ people — all in the name of protecting children — was enacted. A woman who spoke at this hearing said it was her right to control “the moral atmosphere in which my children grow up.” That woman was Anita Bryant, formerly Miss Oklahoma and a white, telegenic, Top 40 singer who was well known for her Florida orange juice commercials …. Bryant spearheaded an anti-LGBTQ campaign of such impact that its echoes can be heard in today’s rhetoric.
In recent years this has been weaponized by the right against LGBTQ+ community members and activists by the accusation of “grooming.”
Melissa Block spoke to Mallory McMorrow about the current activism against the LGBTQ community. McMorrow is a Michigan senator who became known after she took a stand against laws persecuting her LGBTQ brothers and sisters. McMorrow is a fantastic ally, and is everything the opposition is supposedly fighting for. McMorrow is a devout Christian, a parent, and a woman. In 2022 Republican State Senator Lana Theis accused her of trying to “groom and sexualize kindergartners.” McMorrow took the floor to defend herself and the LGBTQ community.
“You know, grooming is the act of befriending a child for the purpose of molesting them,” she says. “Just the most horrific, disgusting, vile accusation that can be thrown at you.”
Lately, that accusation has been thrown at those who support LGBTQ rights —teachers, companies, politicians — in addition to McMorrow: “Grooming” has become an incendiary buzzword of right-wing rhetoric, weaponized in the fight over anti-LGBTQ legislation.
Actual grooming occurs when adults take advantage of a child’s vulnerability to manipulate and coerce the child into sexual abuse. Now that meaning has been warped and corrupted to broadly smear the motives of LGBTQ people and those who oppose anti-LGBTQ legislation.
A few recent examples:
- On his Fox News program, Tucker Carlson claimed that California teachers are trying to “indoctrinate schoolchildren” about sexual and gender identity. “They’re grooming 7-year-olds and talking to 7-year-olds about their sex lives,” he said.
- On her Fox News show, Laura Ingraham accused the Walt Disney Co. of “pushing a sexual agenda” on children. “This isn’t programming. This is propaganda for grooming,” she said.
This handwringing and pearl-clutching about our children is disingenuous at best, and malicious at worst. This is not concern for our kids. This is using children as a prop – an excuse for a hateful political agenda. There’s no real attempt to protect children here – just an excuse to deny already marginalized people of their rights.
But let’s go back to where we started. The law has plenty to say on what is and isn’t appropriate for the public.
The Hicklin test eventually fell by the wayside. It was replaced by the Roth test.
Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth’s case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.
The Court held that obscenity was not “within the area of constitutionally protected speech or press.” In Roth v. US, the Court determined that test to determine obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” This was a huge departure from Hicklin in a number of ways. First, it was about the average person – not a child or the most vulnerable, but the average person. And it required that you apply contemporary community standards. That means you have to think about the here and now. What is appropriate in your current time? You have to have a current context. You also have to think about what is appropriate for your community. What is appropriate for London might not be the same as what is appropriate for Cleveland which might not be the same as what is appropriate for Abilene. The context matters. You have to judge things based on the community standards. Finally, the dominant them has to appeal to prurient interests. That means the whole thing has to be sexual in nature. One dirty bit doesn’t make it obscene. The whole thing has to be about sex for it to be considered obscene.
This is obviously a far cry from Hicklin. We’d moved from “protect the children” to “what’s okay for the average person.”
This discourse continued in Memoirs v. Massachusetts in 1966.
A special provision of Massachusetts law allowed the Attorney General to initiate legal proceedings against an “obscene” book, Memoirs of a Woman of Pleasure. The book, also known as Fanny Hill, was written by John Cleland in about 1750. Massachusetts courts, despite the defenses put forward by the book’s publisher and copyright holder, judged the work to be obscene.
According to Oyez.org,
The Supreme Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not “utterly without redeeming social value.” The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were “patently offensive.”
This was further clarified just a few years later in 1973 by Miller v California.
Miller, after conducting a mass mailing campaign to advertise the sale of “adult” material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller’s brochures complained to the police, initiating the legal proceedings.
The Court decided that, “”[t]he basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” They rejected the “utterly without redeeming social value” test of Memoirs.
The SLAPS test, as this came to be known, is kind of a double-edged sword. On the one hand, it is very easy to say that a thing has artistic or literary value in some way. Oh, my porn has a plot! That’s literary and artistic! Oh, we focused on lighting and camera angles! That’s artistic! We had Hilary Clinton impersonators. That’s political! So it would seem that anything goes. But the “serious” part could pose a problem. Can you show that your work has serious value in any of these ways? It’s a conundrum.
But what is really notable here, is that this is not about protecting kids – this is about what’s best for a community. And a community is made up of “average” people.
Now, there are certainly some difficulties with assigning the descriptor “average” to anyone. Who is the average citizen? That’s somewhat addressed in the decision – an average person is from the community in question. New Yorkers don’t have to live by Texas standards, and vice versa. But average is NOT a 7-year-old. Average is an adult. So the question isn’t, “what is appropriate for kids?” The question is “what is appropriate for a normal adult?” Those are two very different questions. When we make laws outlawing drag shows we’re not answering the right question. Outlawing that kind of thing is supposed to protect kids. But adults are who the audience is. And the law asks us to make that differentiation.
These cases deal specifically with obscenity, but they really are about what kind of speech we accept.
There is controversy over what is and is not acceptable speech or even what counts as speech at all. Excising speech from public discourse, discouraging it, or marking it as unacceptable in certain forums, are some ways in which a society enforces norms and standards. Censorship is speech about speech – it defines the norms and boundaries of public discourse. In this way, it is a constitutive effort to marginalize and even remove particular discursive practices, thereby codifying that certain elements of speech are outside the bounds of who we are. It becomes an instrumental rhetoric unto itself, creating an argument for what speech is acceptable and, by extension, what speakers can partake in discourse. That is, in creating marginalized speech, it marginalizes speakers as well. Censorship is an attempt to strike certain speech from available discourse or remove speech from the public topoi. This is a kind of silencing – while a rhetor is not totally silenced, choices of speech are removed. This act of marginalizing some speech while affirming some elevates some speakers and audiences over others.
Philip Wander described the theoretical process of creating silenced audiences in his piece, “The Third Persona: an Ideological Turn in Rhetorical Theory.” Wander describes ways in which speech silences or negates audiences, creating a “rejected” audience. Censorship does this in the most literal and straightforward way. The law is speech to a national audience, and censorship law speaks to audiences who, in turn, may be speaking. It is a discursive relationship. Censorship articulates the Third Persona in an effort to excise certain speech from public discourse, in a constitutive move that signifies not only what is and is not acceptable speech but also establishes who are acceptable speakers. Those who are censored are identified as silenced members of the audience.
In the case of censorship, the Third Persona’s action of silencing members of the audience is multi-layered. I argue that censorship acts to silence those who would speak unacceptable speech, but it also marginalizes anyone who would willingly take part in that discourse. It not only labels speech as unacceptable, but it also labels speakers, and those who would accept that speech, as deviant. So it is not just those who have engaged in inappropriate speech that are identified by censorship laws as being unacceptable audience members: those audience members who do not condemn, or who accept the offending speech, are “guilty”, just as the speakers are, of offending community norms. In short, censorship itself is an instrumental, constitutive, ideological argument. It is a rhetoric in and of itself that makes use of the Third Persona. Censorship is constitutive rhetoric which creates identity by means of articulating the audience that would be silenced.
And let’s make no mistake – state attempts to ban books, conversations about Black or LGBTQ people, or outlaw drag shows are censorship. Pure and simple.
While in many ways the results of Miller v. California led to an expansion of what is acceptable free speech, it still established the censorial powers of the state by creating a test for what could be considered obscene speech. The Miller decision outlines that speech which is outside of the bounds of normative American speech, thereby articulating what speech can be silenced. In doing so, the Miller decision is also specifically about who can be silenced. The three-pronged Miller test may not immediately seem like censorship, but its purpose is to outline what states can proscribe from public discourse. The Miller decision is more than just a plumb line for acceptable discourse. The Miller decision is a constitutive piece of rhetoric that makes an argument for what a state may put at the heart of its speech about speech. It operates to demarcate who is and is not a part of the ideal audience, focusing on the differences between average and aberrant, and valuable and valueless speech. The Miller decision constitutes a silenced audience, clearly identifying the Third Persona and working as a piece of constitutive rhetoric.
The Miller case specificallyinvolved Marvin Miller, who, as I said, was convicted of mailing unsolicited, sexually explicit material, in violation of a California statute that incorporated the Memoirs v. Massachusetts obscenity test and re-defined the obscenity test that Roth v. US had established in 1957. In the course of Miller the test from the Memoirs case of “utterly without redeeming social value” was rejected as a means by which to assess whether speech was obscene, and thereby not protected by the First Amendment. It also re-defined the test from the Roth case, which was whether material had a “dominant theme taken as a whole” which appealed “to the prurient interest,” to the “average person, applying contemporary community standards.” The Court decided that if a state obscenity law conformed to these standards, then the First Amendment was adequately protected.
The first prong of the test immediately establishes an insider/outsider status. It creates a category of unacceptable, marginalized members of the audience who do not understand what lies within the bounds of acceptable public discourse. In some ways the test begs the question. One must know the result of the case before one can understand the way the prongs of the test differentiate between members of the audience, but at the same time, the words of the test put pressure on those who would judge the speech to conform to norms of the community. The language of the test discourages those who would judge the speech to test the boundaries, lest they be seen as something other than “average.” The results of this test, then, tell us as much about the audience as it does about the speech. If the speech is judged to be obscene, a person who does not find the speech obscene is not average. A person who does not judge this speech as something that appeals to prurient interests and is patently offensive is in some way deviant. They are outside of the scope of the normal member of the audience. The test puts pressure on those who would judge the speech, as well, to stay within the bounds of what is “average” in that community.
The “average” is also based on the specific community. The Court explains that there are not, nor should there be “fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’” The nation is too big and diverse for there to be a single standard, so the “average” person is meant to be an average person of that particular community. As the Court notes, “people in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.” This creates an even starker divide between what is “average” and what is not. There is even more of an opportunity to create insider/outsider categories. A person who judges the speech to be obscene is an average member of this particular community. To misjudge the speech indicates an inability to understand the specific community. Judging what is acceptable speech means being able to judge from the perspective of a particular locale or community understanding. This creates even more of an opportunity to have insider/outsider statuses in terms of “average” person. An “average person” in one place may not be an “average person” in another. If a person is not “average” they are in some way outside of the normative standards of the community. They exist in the margins. The Miller test does not just judge speech, but demarcates the identities of the audience of that speech.
The Court is even specific and articulate in marginalizing a portion of the audience. It argues that the purpose of applying “‘contemporary community standards’” is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person – or indeed a totally insensitive one.” Those who understand the nature of the speech are acceptable members of the community, while those who misjudge the speech are aberrant. The Court labels them “deviant” as opposed to “average.” Misunderstanding the appropriateness of speech indicates a truly problematic position within the audience.
The third prong of the Miller test has come to be known as the SLAPS test. Speech that lacks serious literary, artistic, political, or scientific value is devalued. In some ways, the SLAPS test opened up the possibilities for allowable speech. It is easy to make the argument that any body of work meets one or more of the qualifications of the SLAPS test. Even the most graphic pornography, if it has any kind of plot, can be said to have some kind of literary or artistic merit. But the constitutive effect of the SLAPS test is to demarcate the limits of acceptable speech, and in doing so the limits of the audience. In many ways, the SLAPS test is the most powerful and immediate constitutive element of the Miller test. The SLAPS test does not imply that one must know how the speech has been judged before one can assess the audience. The SLAPS test sets up a test for the audience member immediately – prior to any judgment on the questionable speech needs be made. An acceptable audience will demand that a work have some kind of “serious literary, artistic, political, or scientific value.” Those who do not have such expectations should be silenced. The ideal, which in this case is “average,” audience member will look for the attributes designated by the SLAPS test. A member of the audience who is willing to forego those things that fulfill these requirements is not a part of an acceptable audience. They are deviant from the normative community standards.
Some people might think this gives credence to conservative arguments that “deviants,” as they claim people to be, should be silenced. But what is inappropriate for a kid is not the same as what is inappropriate for an adult. And the question is, what does the average person think? That’s tough. There are lawmakers, and some of their constituents who believe that “average” automatically excludes our gay and trans family.
But such a claim is tautological. They are trying to silence them because they are outside the norm. But the only thing that really makes them outside the norm is conservative scrutiny. Gay and trans people aren’t a problem unless you think they are a problem. And if you think so, you are most likely basing your conviction on gender role beliefs that the average American left behind years ago. You don’t persecute the LGBTQ community for being groomers – you persecute them because they are different than you. And difference is terrifying to some people.
Our thinking on obscenity has changed drastically over the decades. But the foundation of “protecting the kids” has been a steady line throughout conservative politics. But it’s never about the kids. It’s always about something else.
It’s about control. Controlling people we don’t like, controlling those on the margins. We use kids as an excuse to exact control on those things that scare, bother, or offend us. They are just pawns in adult games.
The “save the children” rhetoric is old, and to be honest, kind of tired. Nobody is buying it except the people who want to see the populations that this rhetoric seeks to control kept in check. It’s not about the kids. It’s never been about the kids. If we were so concerned about kids, we’d work on social safety nets and welfare programs. But we know that the people who use this rhetoric aren’t interested in that. They are just interested in control. And they are using our fears about children to get it.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.