Obscenity and marginality: the problem of the complicit censor

Abstract

Obscenity is a register of marginal speech, that which is to be kept off the public stage. This paper explores a paradox in the adjudication of obscenity — what I call the problem of the complicit censor. The quandary, in brief: in order to justify an opinion, a judge has to show its evidentiary basis. Given that obscene material is thought to harm readers, by quoting the putatively baleful passages, the judge will be complicit in the dissemination or broadcasting of obscenity and therefore defeat the purpose of the proscription. But if he chooses not to pinpoint what is obscene, he then risks compromising the legitimacy of the decision. How can a public discourse address what is by definition to be kept at the margins? Is it possible to quote obscene speech without being guilty of the same offence? These questions are central to the pivotal Hicklin case and challenge judicial self-presentation in subsequent considerations of indecent material. Judges have found several ways to cope with this paradox, including relegating the supposedly obscene material to the margins of the court record. In the course of the discussion, I will adumbrate the rhetorical devices of avoidance — aposiopesis, euphemism, circumlocution, and barbarismus (foreign words) — in Anglophone obscenity decisions. Contrastingly, from at least as far back as the early modern period, literary authors have argued that obscene speech may be justifiably quoted or reproduced in order to be properly denounced. As well, I examine humanistic reflections (e.g., in Milton’s invectives) on the value of reproducing, quoting, or explicitly exposing obscenity in order to repudiate it. The debate, in effect, is whether decorum — in legal and literary genres — may be breached for a higher good.