Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective

This Article surveys the development of constitutional obscenity jurisprudence in the United States, Canada, India, and Japan. In the late nineteenth and early twentieth centuries, each of these jurisdictions imposed restrictive Victorian standards of sexual morality on literature and the arts. In the second half of the twentieth century, their constitutional courts began seriously considering free expression claims brought by artists and writers prosecuted for obscenity. These courts have all struggled with a central paradox. Obscenity law criminalizes speech because it is offensive, but freedom of speech is an empty concept if it does not include the freedom to offend. The United States Supreme Court repudiated Victorian standards after the middle of the twentieth century, but the current community standards test remains vague, doctrinally incoherent, and potentially repressive. The Supreme Court of Canada adopted a variant of the community standards test, purportedly based on harm rather than morality, whichproved to be scarcely more coherent or less repressive. Courts in India and Japan have been especially slow to extend protection to sexual speech. Paradoxically, in both India and Japan, nationalist prosecutors and judges have embraced imported Victorian standards of propriety as an expression of national identity, deploying them to suppress not just foreign but also indigenous works. Their narrow nationalist ideology depends on a sanitized and incomplete version of history, so some defendants have prevailed by appealing to more tolerant indigenous traditions. This Article concludes that while obscenity law evidently does little to protect public morality or prevent harm, it can be a
dangerous weapon in the hands of groups seeking to enforce political, social, and cultural conformity. 

56 Colum. J. Transnat'l L. 681