Until about fifty years ago, modesty and chastity constituted the standard of decency among Christian denominations throughout the world. For many centuries, these principles also determined the legal definition of pornography. Then two landmark Supreme Court cases redefined United States obscenity law. They are Roth v. United States, 354 U.S. 476 (1957), and Miller v. California, 413 U.S. 15 (1973).

In a 1981 article entitled “Miller v. California Revisited: An Empirical Note,” BYU Law Professor Robert E. Riggs explained that the United States Supreme Court, in Roth,

“adopted a definition of obscenity far less restrictive than the test then being applied in many jurisdictions throughout the country.” (BYU Law Review, vol. 1981, no. 2, p. 248.)

Not only did the new legal definition jettison modesty and chastity, but I have observed that after the U.S. Supreme Court’s 1957 legal definition was introduced, the dictionaries themselves began to define obscenity without regard to modesty or chastity.

Professor Riggs further states that

“the effect of Roth,… far from spearheading a new movement for the suppression of obscenity, was to open the legal floodgates to a great wave of sexually oriented expression…. Its impact was not to suppress but to stimulate the production and distribution of sexually oriented material.” (Ibid., p. 261; emphasis added.)

In support of this he points first to tremendous increases in the volume of sexually oriented materials available nationwide, citing empirical data on the number of appeals related to obscenity issues following Roth.

Secondly, he points to Roth’s effect on explicitness. He quotes the authors of a technical report prepared in August 1970 for the President’s Commission on Obscenity and Pornography:

“The 1960s witness[ed] ‘a shift of such major proportions that the degree of explicitness at the frontier in 1960 is now found in mass media widely distributed to the general buying public. During this period, the most explicit materials available on the market became more and more graphic. By August 1970, the most explicit materials available “above the counter” were approximately equivalent to the most explicit materials ever produced [prior to 1960].” (Ibid.)

I believe this same shift has happened several times since 1960 and it is happening again today. I believe one could say again today that the most explicit materials available “above the counter” are approximately equivalent to the most explicit materials ever produced prior to ten or twenty years ago.

Therefore, I don’t believe that the sex-entertainment business is shrinking. Rather, I believe it is just moving out “above the counter” where it is no longer being counted with the “under the counter” stuff.