Let’s have a quick re-cap of the legal-linguistic heritage:
In 1934 US v. Ulysses gave us “the intent to arouse” as legal doctrine, which continues to echo loudly in the popular and commercial conception of what serious treatment of sex in cinema can and should be.
In 1954 US v. Roth gave us “socially redeeming value/artistic merit”, which even today is applied as a quasi-legal standard in the US, and a standard backed by force of law in other countries.
In 1964 Jacobellis v. Ohio conflates obscenity with pornography, and adds the tremendously unhelpful phrase “I know it when I see it.” to the popular conception of what is a legitimate cinematic exploration of sexuality and what is pornography.
And to cap it off, in 1973 Miller v California sets as the law of the land an inscrutable, capricious, and geographically fractured standard for what is constitutionally protect speech.
So where does that leave us the day after the court announces the Miller decision?
After the 1973 Miller decision, it is legal to screen sexually explicit films, except when and where it isn’t. Like Hollywood producers in the 1920, producers of sexually explicit films in the post-Miller era are faced with a highly idiosyncratic market. In the 1970s the same film that might play in Peoria might be banned in Boston. Cities like San Francisco and New York are wide open, with people lining up in the streets to see films like Deep Throat. But playing the same film in more socially conservative areas could land you in jail.
Unlike Loving v. Virginia (the 1967 Supreme court case that established constitutional protection for the right to heterosexual marriage, regardless of the race(s) of the persons involved,) or Lawrence v. Texas (the 2005 case that established constitutional protection for non-penile/vaginal intercourse between consenting adults, regardless of their genders) Miller v. California does not represent some great clarifying moment in law and custom. The Miller case fails to settle the question of the legality of screening sexually explicit films with any surety, and moreover it’s not even clear whether or not even making film that depicts actual sexual activity is legal. In addition to risk of obscenity charges for the distribution of films, there is also the risk of pandering and prostitution charges being leveled at the producers and cast.
The majority of sexually explicit offerings (before and after Miller) are more akin “actualities” than cinema, made primarily (some might say exclusively) for the masturbatory pleasure of the audience (see the “Overcoat?” scene in the 1970 film The Owl and the Pussycat,) with other elements interposed primarily as defense against prosecution.
But even as the X-rating (with all it’s masturbatory connotations) are already being lampooned, the possibilities of “adults only” cinema is still being given serious consideration, by Hollywood and independent “adult” producers both.
In 1973, three years after United Artists petitions to have Midnight Cowboy’s rating lower to an R, (and three years after the X-rating is lampooned in The Owl and the Pussycat,) United Artists is willing to roll the the dice one more time on the X-rating with Bernardo Bertolucci’s Last Tango in Paris, featuring Marlon Brando. ( Last Tango will prove to be the last time a star of this magnitude will appear in an Adults Only feature.)
At the same time, exploitation filmmakers were undertaking more ambitious productions. The box office receipts from playing in mainstream theaters fuels (relatively speaking) bigger budgets and bigger ideas,
And while Miller provides no real guidance on how to avoid the charge of obscenity, there are markets that are relatively low risk, and productions can hide from or pay off local law enforcement to avoid pandering and prostitution charges.
In fact, this legally constricted post Miller/pre Freeman era will later be looked back on as The Golden Age of Adult Films. If you look at the best efforts from this time, you can see (if you’ll forgive my peering around the edge of the frame) the filmmakers aspirations and ambitions. I would go as far as saying that some of these films compare favorably with today’s celebrated indie/film festival circuit fare.
(Like most film fest efforts, a lot of what makes these films exciting is the promise of what a future, better funded, better crafted effort might yield than the film itself, and for an enthusiast that’s often enough. But like The Blair Witch Project, when viewed in light of how it all turned out, the films from “the Golden Age” aren’t quite so thrilling. No Kevin Smith would emerge from the 70s ‘porno chic” era.)
Last Tango would be the last time a “mainstream” film would push the limits of explicit sexuality until the NC-17 rating in 1990, but even then those efforts would be obscure arthouse pictures without marque stars (Henry & June, The Cook, the Thief, His Wife, and Her Lover.)
So why did it all come tumbling down? In less than a decade Hollywood had gone from Elizebeth Taylor bellowing “Hump the hostess!” to Marlon Brando muttering “Get thuh buttah.” and the landscape of legal censorship had gone from a film like The Lovers being charged with obscenity to enthusiastic reviews of The Devil in Miss Jones appearing in Newsweek and Variety.
I’ve taken my own stab at explaining it in the previous post, “How X-rated became synomymous with porn and the death of movie making for grownups” and if I had to sum it up I say it was three things: HIV, Reagan, and the VCR.
As I posted a couple of weeks ago over at The Art & Business of Making Erotic Films, my 12 year-old recollection of New York City in 1978 was that it “was a shit hole.” My recollection is confirmed by my uncle, who had lived in New York since the 50s, and chimed in with:
“New York [in the 70s] was a scary, dangerous, sexually overheated place back then. I remember always looking far ahead on the sidewalk where I was walking, ready to cross over to the other side of the street in a flash if I saw something or someone menacing up ahead.”
To get a sense of you can watch Taxi Driver, Summer of Sam, Gay Sex in the 70s and reruns of The Equalizer.
And the mood wasn’t so different in the rest of the country. There was a sense that the sexual revolution of the 60s had gone too far, and the backlash started to build.
Seeing the handwriting on the wall, and (ever) risk averse, Hollywood began offering films like Looking for Mr. Goodbar, Dressed to Kill, and Cruising; fully-funded R-rated cautionary tales about sexual excess. With the benefit of hindsight The Opening of Misty Beethoven in 1976 would end up being regard as the high water mark of the Golden Age of Adult Cinema, and nothing after it had the creative or financial clout to stand against the forces that rallied together and began the great push back. X-rated films were driven out of the theaters and away from the box office receipts that had fueled their (short lived) golden age.
If things had remained this way, I don’t think it’s unreasonable to suggest that sexually explicit films would have reverted to the “Elk’s Lodge basement smokers” of the 50s and early 60s; clandestine screenings of actualities for small groups. But instead, changes in law and technology would arrive that ultimately would mean no one would ever have to sit next to a stranger (or rent a raincoat!) to see sexual explicit imagery ever again.
In section II)C we’ll look at:
- Why Betamax vs VHS was the wrong question, and is still giving us wrong answers.
- California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.
- Buttman and The Sony VX1000: The rise of “Gonzo.”
- The Internet: The barriers to entry fall to zero.