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II)B)1) US vs. Ulysses: The origin of  ”intent to arouse” as legal doctrine.

 In the chapter, “Seeing Around the Edge of the Frame” from his book IN THE BLINK OF A EYE film editor Walter Murch writes the following:

The film editor is one of the few people working on the production of a film who does not know the exact conditions under which it was shot (or has the ability not to know) and who at the same time has a tremendous influence on the film.

If you have been on and around the set most of the time…you can get caught up in the bloody practicalities of the gestation and delivery. And when you see the dailies, you can’t help, in your mind’s eye, seeing around the edges of the frame–you can imagine everything that was there, physically and emotionally, just beyond what was actually photographed.

“We worked like hell to get that shot, it has to be in the film.” You (the director in this case) are convinced that what you got was what you wanted but there’s a possibilities that you may be forcing yourself to see things that way because it cost so much–in money, time, angst–to get it.

By the same token, there are occasions when you shoot something that you dislike, when everyone is in a bad mood, and you say under protest, “all right, I’ll do this, we’ll get this close-up and then it’s a wrap.” Later on, when you look at the take, all you can remember was the hateful moment it was shot, and so you may be blind to the potentials it might have in a different context.

The editor, on the other hand, should try to see only what’s on the screen, as the audience will. Only in this way can the images be freed from the context of their creation…

I guess I’m urging the preservation of a certain kind of virginity. Don’t unnecessarily allow yourself to be impregnated by the conditions of shooting…the audience knows nothing about any of this–and you are the ombudsman for the audience.

I’m a big fan of Murch’s ideas about art. Although I enjoyed and value my university art department education very much, one of my frustrations was that we spent an awful lot of time talking about “out of the frame information,” and it sometimes seemed to me as if the fine arts world was more concerned with everything outside of the frame than with the artwork itself, and perhaps it was because of this frustration that after graduation I gravitated toward commercial work.

In commercial work there are no artist’s statements, no quizzical listings of materials, no academic pedigrees; everything has to be inside the frame. Art directors don’t care why you made the photograph, or what your motives and intentions were, they only care about what the photo looks like. This perfect “inside the frame world” was a comfortable place for me.

But to start making and marketing my own films, I had to leave this wonderfully Murchian world and begin to think about how I would manage and shape the “out of the frame information” that surrounded my films.  

It’s a simple fact that an audience rarely comes to a film with their “virginity” intact. “Based on a true story,” “Filmed on location,” “Did all of his own stunts,” “Real People, Real Life, Real Sex,” all of these are framing devices producers use to market our films, and to guide audiences toward seeing our films the way we want them to be seen. So is “By women, for women,” or “feminist”. So is “documentary.” As producers we purposely let people “see outside the frame” to try to influence the way they respond to our work.

But when working with sexuality, a producer faces an added burden. Not only must you manage and shape the out of the frame information that helps sell your film to your audience, you must also shape the out of the frame information in a way that satisfies the state that the ideas you are expressing are not a criminal offense. You must create a narrative for your intentions in order to place the outcome of those intentions inside the boundaries of what the law permits.

For me, an artist whose highest aspiration is to make work that can be enjoyed as it stands, the obligation to explain myself sticks in my craw.

When I get questions at director’s Q&A’s like, “What did you want us to get out of your movie?” I find myself at a loss for words.  (Answer: If you have to ask, I feel like a failure.) But on top of that, I’ve got to have the right intentions when I make my films, otherwise my films aren’t art. If I don’t make my films with the right intentions, then me and my work aren’t entitled to the same basic protections and courtesies afforded anyone else tackling any other subject matter.

And the one intention I must not have under any circumstances is the intention to arouse my audience. All other human emotions I might hope to provoke are fair game, but the intent to arouse is, at best, the realm of the pornographer, and at worst, a criminal undertaking. As an artist hoping to explore sex as a fundamental and joyful part of  the human experience with honesty and compassion, this puts me in an untenable position.

So where does this idea come from? Where  is it written that the intent to arouse is the dividing line between art – expression that enjoys the full protection the First Amendment and a place in decent society, and obscenity – ideas about sex so beyond the pale that the mere expression of these ideas constitutes a crime? 

Again, I’m not a legal scholar, but I am a filmmaker for whom this question is something more than an amusing academic diversion. This question drives the the heart of whether or not I can make my films, and so I’ve put more than a little effort into finding an answer, and that effort leads me to the 1934 court case US vs. One Book Called Ulysses.

James Joyce Ulysses was first published in 1922, and US vs. One Book Called Ulysses was a test case orchestrated by Random House to challenge prohibitions on the publication of Joyce’s novel on the grounds that it was obscene; passages of the novel contained “four letter words” and described character’s interior thoughts about sex with a candor that seemed to run afoul of the black letter of the law.

At the time Joyce was already a highly regarded author, and Justice John Woolsey was faced with the prospect of declaring a masterwork of the English language as unfit for publication in the United States. Caught between a rock and a hard place, Woolsey found his way out by divining the effect of Ulysses on its readers:

“[W]hilst in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac.”

In other words, Ulysses was not arousing, and therefore it was not obscene. It is reported that within 10 minutes of hearing Justice Woolsey’s Random House began typesetting the US edition.

The government appealed Woolsey’s decision, and lost. But again the court’s decision rested on whether or not Ulysses was arousing to its readers. Justice Augustus Hand writes the court’s opinion:

“Art certainly cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with a new technique. The foolish judgments of Lord Eldon about one hundred years ago, proscribing the works of Byron and Southey, and the finding by the jury under a charge by Lord Denman that the publication of Shelley’s “Queen Mab” was an indictable offense are a warning to all who have to determine the limits of the field within which authors may exercise themselves. We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly it does not fall within the statute, even though it justly may offend many.”

70 years later, the language of the Ulysses decision still permeates our attitudes about what constitutes serious treatment of sexuality in cinema, and sends producers and censors both into paroxysm of explanation and denial.

Michael Winterbottom on his film 9 Songs:

[I]t isn’t pornography, the truth is, you know, this was an attempt to show two people in a relationship, to show two people making love. It was not an attempt to excite the audience, or arouse the audience. You know, if you watch a porn movie, you watch a bunch of porn movies, and then watch ‘9 Songs‘ – however you define pornography, ‘9 Songs‘ just doesn’t look like the porn movies, doesn’t sound like them. It just doesn’t have the same effect as them. It’s just a completely different thing. That’s not to say it’s better than pornography, or worse, it’s just different. 

John Cameron Mitchell on his film Shortbus:

“[A]ll of the orgasms and all of the semen is real [but] no one got a hard-on watching this film… We have to keep reminding people it’s not pornographic – it’s not a film that’s meant to arouse. We tried to de-eroticize the sex to see what kind of emotions and ideas are left over when the haze of eroticism is waved away…by the end if you’re thinking only about the sex, then you have a problem.”

The BBFC and the Tate Museum on the film Destricted:

“After considerable agonising, the British Board of Film Classification granted an 18 rating for Destricted this week, to be released uncut on DVD. But it said that it must carry a warning that it “contains strong, real sex”.

“A source at the board described the film as “awful”. Unusually, it was not approved until it had been seen by the board’s president, Sir Quentin Thomas.

“The board had considered granting a Restricted 18 DVD classification, reserved for work intended to be arousing. That would have meant that a Destricted DVD could be sold only in sex shops and would have ruled out the possibility of its being put on sale in the shop at Tate Modern, where the film is to be given five screenings in September.

“Sir Quentin said that Destricted was so explicit that it would normally attract an R18 rating but he judged that it was a work of art not intended to arouse.

“He said: “In purpose and effect, this work is plainly a serious consideration of sex and pornography as aspects of the human experience.

“We think that there are no grounds for depriving adults of the ability to decide themselves whether they want to see it.”

“Tate Modern said the film was art not pornography.”

For myself, I feel hopelessly boxed in. I make films about couples who are in love with each other, enjoying that love in its most carnal and intimate expression. While I don’t believe that arousal is a necessary condition for enjoying my films (I’m pleased that at least sometimes, my films are able to cross boundaries of sexual proclivity and taste,) I’m not the least bit ashamed that for many people the erotic aspect of my films, being aroused by watching them, is an important and enjoyable part of their experience.

But my unwillingness to deny this aspect of my films comes at a price. In countries like the UK or Australia, my films have been denied the chance to screen in front of audiences of fully informed adults. Here in the US, retailers that carry Shortbus or 9 Songs refuse to carry my films because they don’t carry “pornography” or worse –because they fear prosecution. I have even had a university professor tell me that even though he would like to use my films in his classroom, he doesn’t for fear of prosecution.

This  conflations of “obscenity” (expression of ideas about sexuality that do not enjoy First Amendment protections) and “pornography” (a category with no legal meaning in the US) presents one of the greatest challenges to the serious exploration of sexuality in cinema.

To be regarded as a “serious effort” a director must forgo the depiction of sexual joy with any sort of candor. Under the tyrany of the “intent to arouse doctrine” trying to depict joyful adult sexual relations like like try depict war without having the option to show bullet wounds or broken bodies. It’s not impossible, but it is stifling, and leaves important truths about this fundamental human experience unseen and uncelebrated.

And more than that, the director must also proclaim that his depictions of sexuality, no matter how joyless,  are made without the intention to,  or even have the capacity to provoke an erotic response in his audience.  I can think of no other subject matter where a director would be so presumptuous as to dictate how the audience can and should respond to a film

In the next post we’ll look at Roth vs US, and again we’ll be looking at it, not for it’s legal legacy, but for language from the decision that continues to shape people’s attitudes towards the collision of sex and the moving image.

Tomorrow: Roth vs US: The question of “socially redeeming value.”

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3 Responses

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  1. Brendan said

    Thanks for the great post. Strange that “Ulysses” could have caused such a stir, given that its lack of arousal-causing seems so obvious to the modern reader (at least this one). Cultural mores shift rapidly, and even more rapidly than in past generations due to the pervasiveness of media. Hopefully your films will be filed along “Shortbus” in the near term.

  2. Tony Comstock said

    Hello Brendan, and thanks for coming by! But I’m not sure I understand your comment. Are you saying that if Ulysses were “intended to arouse” than it would be reasonable for the state to suppress its publication? For me this is the heart of the matter. Whether or not it is the proper function of the state to suppress the expression of unpopular, unusual or even repugnant ideas about sex, even when their is no criminal activity undertaken to create the expression of those ideas. Amongst various and sundry controversial and/or repellent ideas, ideas about sex are alone in this odd exclusion from First Amendment protection.

Continuing the Discussion

  1. II)2) “Do you want to be put in the same category as Alfred Kinsey, Max Hardcore, or  Catherine Briellat?”: The limits of sexual expression in an algorithmic world. – The Intent to Arouse linked to this post on August 24, 2009

    [...] Neither is the idea that “art” is also sufficient justification for what would otherwise not be protected speech new, with Justice Woolsey’s “intent to arouse” standing as a now nearly 80 year old dividing line between “art” and obscenity—observed with full legal force in some countries (UK, Australia) or with quasi-legal force in the the US (”Penetration is illegal in Utah.”) See the previous TITA post: US vs. Ulysses: The origin of  ”intent to arouse” as legal doctrine. [...]

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