Sex -- The Great Exception

This piece was originally published on the Blowfish Blog.

Why should sex always be the exception?

From laws about free speech to social rules about polite conversation... why is sex the exception?

Yesterday, in a piece about censorship and the controversial Robert Mapplethorpe art exhibit, I talked about how William F. Buckley was offended by sadomasochistic sex: so offended that he equated it with the Holocaust. I talked about how intensely offensive I found this comparison. And I argued that, if people like Buckley are allowed to ban forms of expression that offend them -- such as the Mapplethorpe exhibit -- then people like me will be able to do the same with forms of expression that offend us... such as Buckley's repulsive opinions.

And then I pointed out that, of course, the main difference between Mapplethorpe's photos and Buckley's words was that Mapplethorpe's photos were sexually explicit, and Buckley's words were not. So therefore, in any court of law, my "If he can ban my offensive expression, I should be able to ban his" argument would be laughed out of the room. Sexual speech does have some First Amendment protection -- but not nearly as much as it should. Obscenity laws exist, and have been both applied and upheld. Recently, even. When it comes to the principle of free speech and free expression, sexually explicit content is an exception.

Which leads me to today's question:

Why is sex an exception?

The principle of free speech is interpreted pretty darned broadly in the U.S. But there are exceptions. There are exceptions for false advertising. For violating copyright. For slander and libel. For revealing state secrets. And for talking about sex.

In other words: Sex is seen as being in a category with fraud, theft, character defamation, and treason.

Why?

What -- if you'll excuse my language -- the fuck?

The whole idea of "community standards" for obscenity is another perfect example of this principle. Think about it. We don't allow communities to set standards for any other area of expression. We don't allow communities to set standards for expression of political opinions or religious beliefs; for musical genres or styles of poetry. But the idea that a community should be able to set its own standards for sexual expression: this, for some reason, is seen as totally normal and entirely reasonable.

Thus creating a legal situation that, if my understanding of the law is correct, would otherwise be considered untenable: a situation in which a reasonable person cannot tell ahead of time whether or not they are breaking the law. A porn producer in Los Angeles, whose product may be shipped all over the country, has no way of knowing whether the possession and sale of their video will violate the law in Bumblefuck, Tennessee. They have no way of knowing ahead of time what the legal limits are, so they can stay within them. They won't know until after the trial. They won't know what the crime is until after they've been convicted of it.

And the "I know it when I see it" obscenity principle is yet another example. Can you imagine a Supreme Court Justice saying, "I don't know what treason is, but I know it when I see it?" "I don't know what establishment of religion is, but I know it when I see it?" The whole point of courts is that they're supposed to tell us what the law means. They're not supposed to punt the question to "community standards" and to vague intuitions that we all supposedly agree on... except that we don't.

But it isn't just to obscenity laws that this exceptionalism applies. Heck, it isn't even just laws. We have, for instance, a basic (if sometimes grudging) respect for the idea that different people have different tastes: in music and movies, food and clothing, places to live and home decor and almost every other aspect of life. But not in sex. Differing tastes in sex are still seen as a moral issue, even when they affect nobody but the people having the sex.

And we don't even feel comfortable talking about sex, the way that -- in this chatty, opinionated, "couldn't shut us up with an industrial vice grip" country -- we feel comfortable talking about almost every other aspect of our lives. Even though better information about sex broadens our sexual perspective, making for both better sex lives and greater tolerance of sexual diversity, we are still reluctant to discuss our sex lives with anyone but the people we're having them with. We'll talk about deeply personal, powerful things -- jobs, family, food, music, drugs, travel, childhood, art, even politics and religion -- but not sex. Not in any detailed way. That's just... different.

Why?

I don't actually have a good answer to this question. I do think I may have a glimmer of one: Sex makes us feel irrational, and it's probably asking too much to expect us to behave rationally about it. Sex is a powerful force in our lives, a fundamental animal drive, and we tend to be irrational about those, to set up essentially random taboos around them to give us a feeling of control. People have a lot of fears about sex... and those fears can be exploited by powerful people trying to make headlines and win elections. And of course, the United States is a country founded in Puritanism, a country in which conservative religion is a powerful force... with both the irrationality and the fear of sex that comes with that territory.

But I don't really have an answer.

I just want us to pay attention to the question.

I want us notice the phenomenon. Whenever we treat sex as a side of human experience that is set apart, different from all other aspects of human experience and with special rules all its own -- or when we see other people treating it that way -- I want us to start asking: Why?

And if we don't have a good answer -- if we can't really come up with a good reason for why sex should be made an exception -- I would like us to seriously consider knocking it off.

Comments

[Buffy]

People are idiots when it comes to sex. It dates back to the beginning of time. Sadly it doesn't seem things will change any time soon.

[Piff]

I think it's partly that, with the exception of some exhibitionists, most people tend to want privacy when it comes to sex. We're generally uncomfortable with doing it in public, and we're embarrassed if we stumble upon someone else doing it. I think you've said yourself in this blog, for instance, that you don't like to do sexual stuff in public places because it involves making other people unconsenting participants, and a lot of people feel the same way.

Talking about sex is not the same thing as having it, of course. But we can be turned on by talk, and we're definitely turned on by images and movies. A picture of a naked girl may be expression, but it's also a prop in the sexual activity of whoever's going to jerk off to it.

So you could argue that the reason people don't like too much sexual stuff in public is that they feel like they're non-consensually stumbling on part of something that's best kept private.

If you went with that, then there's still no reason to rule out discussion of sex, of course. And I don't know how much weight I'd give this when it comes to interpreting the law. But I think that the desire for people to stay out of each others' sexual business may be part of the issue.

[Bruce Gorton]

On sex being a primal force, let me just say:

Roast beef with a green pepper sauce, flamed in brandy, served with potatoes done around the meat.

A salad made using baby leaf lettuce, fresh off the vine halved cherry tomatoes, segments of naartjie, grilled and skinned sweet pepper, yellow for the colour, olives that have been pickled in red wine, thinly sliced pink lady apples, topped with cream cheese and drizzled with a honey-mustard dressing.

When's the court date?

[Jon Berger]

@Bruce -- a long time ago, possibly even in a galaxy far far away, I read a science fiction story about a society where sex was completely out in the open but eating was something kind of shameful that was only done in private. About the only specific thing I remember about the story was that the nastiest thing you could say to someone was "go suck a mango." I also remember thinking that it was a really good trick to write a story like that in a way where it could still get published in a society that was the other way around.

Anyone else ever read this, or did I hallucinate it?

[Leum]

I've seen references to it out there. The line "Mommy, Bobby's masticating!" comes to mind. I'd love to actually read the story.

[nina hartley]

Jon,
During one scene in the classic Brunel film, "The Discreet Charm of the Bourgeoisie," people were at a communal table, each sitting on a commode but when someone wanted to eat, he or she had to leave the table and go to a special, little room, to eat in private.

Great observations, Greta!

[arensb]

Out of curiosity, Greta, are you including yourself in the "we" who "don't even feel comfortable talking about sex" and "are still reluctant to discuss our sex lives"?

Obviously, you write about sex a lot, and include a standard disclaimer to posts that talk about your sex life, so you're at least somewhat comfortable with it. What I'm asking is, does it feel weird to you to write about sex the way you'd write about food (perhaps just a shriveled remnant of "this is naughty"), or are you commenting about behavior that you see in others and just don't get?

The level of taboo-ness of sex is obviously affected by education and culture: people can learn to be more open about sex. But is there a deeper core of taboo-ness that remains? Are we humans mentally wired to put sex in a category separate from food and politics and books?

[John B Hodges]

Part of it may be that during sex we are unusually vulnerable to attack by any enemies we may have, so therefore (by natural selection) instinctively we prefer to do it in some private place. This would be why we are more private about sex, excretion, and sleeping than about eating. Furthermore the information about WHO we are having sex with may MAKE enemies for us, even the fact of us having sex at all may make enemies for us. We usually want our partner to be monogamous with us, we fear being de-partnered and/or cuckolded, but humans are much less monogamous in practice than in theory. (I recently watched the first five seasons of "The L Word" on DVD, and it struck me that the endless round of heartache and pain came almost entirely from people wanting monogamy from their partners but failing to stick to it themselves.) This would not be true with our eating companions; infidelity in table-mates would not carry such dire consequences.

[arensb]

John Hodges:
Those are interesting thoughts, but I don't think they're the whole picture. For instance, I think everything you've listed about humans also applies to bonobos, and I understand they have sex all the time with all sorts of partners. So there must be something missing.

As for eating, one could argue that if you share your meal with strangers, that leaves less food for you and your family. In hard times, this could mean the difference between your children living and dying. So again, something seems to be missing (personally, I suspect that the "something" is the fact that among our ancestors, the "stranger" was likely to be a cousin, i.e., someone who shares genes with you and your children).

[Greta Christina]

Out of curiosity, Greta, are you including yourself in the "we" who "don't even feel comfortable talking about sex" and "are still reluctant to discuss our sex lives"?

To some extent, yes. In writing, I'm comfortable discussing my sex life in a fair amount of detail; in person, I'm much less likely to do so. Probably more likely than the average person... but I do feel the taboo. Writing about it feels more or less normal at this point... but I've been doing it for 20 years now, so I'm used to it. And there's more distance with writing than there is with discussing it in person. And I still have debates with myself over where to draw the line: how much is okay to reveal, and how much is TMI.

Oh, and since food keeps coming up, I do feel a need to point out that we do have taboos about food, and strong ones. They're just different ones than the ones we have about sex.

[arensb]

Thanks.

we do have taboos about food, and strong ones.

Indeed. In fact, I've run into the hypothesis that many of the dietary rules in the Old Testament have nothing to do with health or anything like that, and more with being different from neighboring tribes. That is, some nice Jewish girl might want to go marry that nice guy from the neighboring tribe, but then she'd have to live with his family, and they eat pork and shrimp and stuff, and that's just gross!

[Rieux]

in this chatty, opinionated, "couldn't shut us up with an industrial vice grip" country...

"Industrial vice grip" sounds seriously kinky. Was that an intentional misspelling?

[Mark]

Piff:

I see what you mean, though the problem is that obscenity laws and other restrictions on sex often apply even if only viewed by those consenting to see it, and in some cases, to even private possession of material. Far from a "desire for people to stay out of each others' sexual business", I think the problem is that they have too much of a desire to dictate other people's sexual business, and I'd say it's those who oppose such laws who would rather they stay out of each others' sexual business.

Laws that are based on the idea of consent (both of the participants, and the consent to see the material) would be a far better way of doing it, but I don't know of any country that does this.

Admittedly, I think from their point of view they see it as "keeping things private", the problem is that their definition of private extends far beyond simply meaning that they don't see it. "It's okay with what you do, as long as I never see or hear about it" - but being only sold on a sex shop, or on a website with clear warnings, isn't good enough. Even a photo made in private can be criminalised, because they fear it may be distributed.

[ebh]

I touch people for a living. The intent is asexual but there are no physical limits to the touching.

The consequence, over years of touching strangers, is that touching another has no sexual charge. This is undesirable - and unavoidable.

A great deal of sexual tension is due to novelty, anticipation, taboo. I anticipate that the law of unintended consequences would be punishing: a sexually open society in the truest sense would be an asexual society - for the same reason that you cannot tickle yourself....

[Thom Blake]

Sex makes us feel irrational, and it's probably asking too much to expect us to behave rationally about it.

Henceforth referred to as the Pon Farr theory.

[Pointer]

re: ebh's comment
see Greta Christina's post on this blog "Sex, and the Difference between Jaded and Relaxed"
( http://gretachristina.typepad.com/greta_christinas_weblog/2009/01/jaded-and-relaxed.html )

[Crystal Williams]

I think the reluctance to talk about our personal sex lives goes beyond the irrationality that lies in the wake of sex. Personally, the inadequacy of words to describe sex combined with the need to preserve the intimacy and privacy of it makes it difficult even for me to talk about my personal experiences. Sure I can talk about any aspect of sex with clinical detachment (when I'm trying to convince my family that my interest in reading about sex isn't completely smutty) or passion (when I'm talking to like-minded people who believe sex is too fascinating and important to NOT study) but as soon as it comes to my
personal sex life, even I tend to get tongue-tied. Not only can it be weird telling people the sexual acts you've
performed when they either believe you aren't THAT type of person or just disapprove, it can be hard to effectively
convey how transcendental the experience can be and
how orgasming makes you shake harder than a baby with a rattle. There's also the issue of intimacy - having sex can be like joining an exclusive club of two (or one, three, four, etc...) that's great due, in part, to it's exclusivity. You have something to bond over and relish that no one else can completely replicate.

Maybe one day we will become more open about our sex lives. With that said, I think I will now sneak off to do
something that is best left unsaid