As a

connection between the words "pornographic" and "X-rated," and once again it seems clear that common usage would apply the term "pornography" to a class of films that overlaps with but is not identical to the class encompassed by the "X" rating. result, we avoid the term "X-rated," except insofar as we are discussing in particular the category of materials so rated in the context of the purposes behind the MPAA rating system.

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Descriptions of sex are as old as sex itself. There can be little doubt that talking about sex has been around as long as talking, that writing about sex has been around as long as writing, and that pictures of sex have been around as long as pictures. In this sense it is odd that historical treatments of pornography turn out to be historical treatments of the regulation, governmental or otherwise, of pornography. understand the phenomenon of pornography it is necessary to look at the history of the phenomenon itself, prior to or at least distinct from the investigation of the practice of restricting it. Some works on the history of sexual behavior, eroticism, or erotic art help to serve this goal, but the history of pornography still remains to be written. Commissioning independent historical research was far beyond our mandate, our budget, and our time constraints, yet we do not wish to ignore history entirely. We feel it appropriate to offer the briefest overview here, but we urge as well that more comprehensive historical study be undertaken.

The use of comparatively explicit sexual references for the purposes of entertainment or arousal is hardly a recent phenomenon. Greek and Roman drama and poetry was frequently highly specific, and the works of Aristophanes, Catullus, Horace, and Ovid, to name just a few, contain references to sexual

activity that, by the standards of the time, are highly explicit. Scenes of intercourse have been found on the walls of the brothel at Pompeii, and the Roman sculptural representations of the god Priapus are as bawdy as Aubrey Beardsley's most explicit drawings.

Obviously the explicitness of the past must be viewed in light of the times, and there is no question but that the works of Aristophanes are less shocking to our contemporary vision than are some of the materials currently shown in adult theaters. Yet to ask what the Romans would have thought about "Deep Throat" is akin to asking what the Romans would have thought about helicopters. The more useful historical question

is whether highly explicit sexuality for the times was a part of the literature and discourse of the times, and the answer to that question is plainly "yes."

Similar observations can be made about later historical periods and about other cultures. The Thousand and One Nights and the Kamasutra are but examples of the fact that numerous eastern cultures also have a long history of comparatively explicit depictions and descriptions of sexuality. In western cultures the explicit treatment of sex continued through modern history. Whether in the form of the medieval bawdy ballads and poems of Chaucer, Dunbar, and others, or in the form of the French farces of the fourteenth and fifteenth centuries, or in the form of the art and poetry of Renaissance Florence, or in the form of Elizabethan ballads and poetry, sexuality, and quite explicit sexuality at that, was a recurrent theme in drama, in

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poetry, in song, and in art.

We can be fairly certain that sexually explicit descriptions and depictions have been around in one form or another almost since the beginning of recorded history, and we can also be fairly certain that its regulation by law in a form resembling contemporary regulation of sexually explicit materials is a comparatively recent phenomenon. It is difficult, however, to draw useful conclusions from this aspect of the history. For one thing, until the last several hundred years, almost all written, drawn, or printed material was restricted largely to a small segment of the population that undoubtedly constituted the social elite. The drama of the classical age was frequently highly sexually explicit, or at least suggestive, but its audience tended to be limited to the wealthiest, best educated, and most powerful members of society. And of course the historical or universal presence of a phenomenon need not justify permitting its continuation. Slavery was a central fixture of much of the past, and warfare and ethnocentricity are as nearly universal as sexually explicit depictions, but the sensitivities of most cultures demand that such practices be discouraged.

In addition, it is a mistake to draw too many conclusions about social tolerance and social control from the presence or absence of laws or law enforcement practices.

There is little

indication that sexual conduct was part of classical drama, and the very fact that many sexual references were veiled (however thinly) rather than explicit indicates that some sense of taboo

or social stigma has always been in most societies attached to public discussion of sexuality. Yet although some degree of inhibition obviously attached to public descriptions and depictions of sexual acts, it is equally clear that the extent of these inhibitions has oscillated throughout history. In somewhat cyclical fashion, social tolerance of various practices has been at times limited and at times extensive. To conclude that inhibition, in some form or another, of public discussion and representations of sexual practices is a totally modern phenomenon is to overstate the case and to misinterpret the evidence from earlier times.

But to assume that public discussions and descriptions of sexuality were, prior to 1850, always as inhibited as they were in English speaking countries from 1850 to 1950 is equally mistaken.

We have mentioned here the early history of pornography in large part to encourage thinking about sexually explicit material as social phenomenon as well as object of governmental regulation. Although our task is largely to think about laws and law enforcement, we know that thinking about law requires thinking as well about the social foundations of the practice involved. Most historical study to date has not been about the social practice of pornography, but largely about control of that social practice by government. If the use of sexually explicit material is to be understood fully, the scope of thinking about the issue should be broadened substantially.

2.2 Regulation and the Role of Religion