US and Japan pornography regulation traditions and trends
(2002/3 revision)
 

 
    All industrialized societies today have a pornography industry.  But not all the societies deal with sexually explicit material in the same manner.  The US and Japan both boast large and expansive sex entertainment industries that meet the demand of it’s citizens.  The legal framework in both countries regarding the regulation of obscene and pornographic material is overall rather similar.  In both countries laws prohibit the sale and distribution of obscene material, while their respective constitution protects free speech.  Both countries have liberalized it’s restrictions on sexually explicit material during this century, and but in practical terms the two nations treat pornography very differently.  In Japan, the material is abundantly available, it’s content diverse in taste and quality, all mass produced at a breath taking rate.  At the same time the government regulators have wide latitude over censoring the material and are continuously in contact with the industry to guide it’s activities.  In America, the regulators rarely come in contact with the producers of sexually explicit material except in court and when making arrests, but their powers have been curtailed continuously by the courts.  While size of the industry may be comparable as with Japan’s, it’s distribution network is severely limited and it’s content tends be polarized between the well developed sexually explicit literature (erotica) and the analogous and mostly mediocre pictorials and videos.  The historical paths of the role and function of moral guardianship had profound impact on contemporary landscape of sexually explicit material in Japan and America.  This paper examines the historical progression of the nature of regulation of sexually explicit material in both countries to try to understand how these very different contemporary genre landscapes of sexually explicit material have come into being.
    There is no question that cultural attitudes and traditions do indeed profoundly influence how different societies deal with sex, sexuality, and sexually explicit material, but that alone is not a satisfactory explanation for the variance in social arrangements regarding the regulation of pornography and obscenity.  Regulation directly influences what the sexually explicit genre produces and how it’s content is disseminated into the culture.  Those who control and negotiate the functions of the regulatory mechanism has profound influence in creating, maintaining, altering, or destroying sexual taboos in society.  This power is not shared by all members in society, and furthermore, who controls this power and by what means they maintain this power also appear to have an impact on the landscape of sexually explicit material in a given country.
    Note that the definitions of pornography, sexually explicit material, and obscenity are socially constructed terms.  Even in US society, the definition of pornography had changed drastically over the last 100 years, and yet people are prone to believe that pornography is an easily identifiable item, i.e. “I’ll know it when I see it.”  But this problem becomes even more magnified when trying to conduct intercultural comparisons as this paper attempts.  In other words, when there is a moderate degree of discrepancy in the definition of pornography and obscene material, text perfectly acceptable in one nation can quickly become material that invites controversy.  For example, numerous comic books for young children in Japan sometimes feature nudity of grade school children; the odd shower scene or skinny dipping in a secluded pool.  Numerous authors have made a career out of comic that revolve around jokes and references regarding fecal matter, but the public, by in large, does not object to said matter.  Such material is unthinkable by US standards. By the same token, American photographs of men and women posing in artistic postures need to be censored before they enter into Japan because the uninhibited exposure of sexual genitals of grown men and women are considered obscene.  Sexual explicitness and obscenity are self-contained “truths” that are continually re-defined within the given society.
    However, if one were to approach pornography, obscenity, and sexually explicit material as concepts that are continuously redefined and articulated by regulatory bodies, a more concise picture can be drawn.  This paper concentrates more on the nature and need on the part of the regulators to control what they feel is material that might be “injurious to public morals.”

 
    There are numerous similarities between the contemporary market for sexually explicit material of American and Japan.  For many in both countries, the material is conceptualized as being sub-standard; The industry may not be criminal but certainly is not thought as being respectable, the production is believed to be cheap and shoddily put together, the content unsophisticated and vulgar. While many are employed in the industry, many attempt to hide their employment from public view.  Many respectable and accomplished artists and writers participate in the industry, but many are led to adopt pseudonyms for fear of the stigma that might be attached to their names and careers.
    Protecting children from the “harmful” effects of sexually explicit material is a common feature in both countries.  Terms like “hazardous,” “corrupting,” and “dangerous” are used often in debates over the accessibility of pornography to minors.  Furthermore, pornography is commonly argued to be material that corrupts not the mind of those who read it, but poses a threat to the society at large.  It is commonly argued in both countries that people exposed to pornographic and other obscene material will be compelled to act out behaviors depicted or that their actions and thoughts will be unwittingly influenced by pornography.
 And yet how the two countries deal with pornography on a practical level is surprisingly different.
    To be blunt, sexually explicit material is everywhere in Japan.  In local bookstores, in the train station news stands, inside vending machines, and in many other places, sexually explicit material is readily available in Japan.  While the relatively “hard core” material are delegated to retailed in larger book stores, nevertheless, for many American who have travels to Japan, it’s as if “smut is everywhere,” in newspapers, in magazines, in comic books, on video, and on television.
    In the United States, sexually explicit material is usually hidden away behind a closed door or a secluded area in large stores.  Many small stores and chain retailers shy away from carrying material that might be construed as being “pornographic.”  Regular bookstores rarely go beyond selling “erotic” text literature and sex education books.  While numerous stores will sell Playboy and other sexually explicit publications, they are carefully guarded, placed in locations where minors cannot reach at or placed in bags that hid the contents of the publication except for the title.
    While there is an increasingly trend in Japanese book stores that specialized in sexually explicit material to declare their stores “minors free,” the  access to sexually explicit material is typically not in check in most bookstores in Japan.  In numerous local and regular book stores, many “hard core” titles are available, and yet these publications are not hidden away behind a special partitions nor placed high in the book rakes.  Some stores indeed shrink wrap them, but it’s unclear if this is mandated or simply carried out as a no-nonsense measure to stop customers, regardless of underage or not, from reading the books and avoid buying them.  Many books stores in Japan now shrink wrap comic books they sell, regardless of whether or not they are sexually explicit.
    Back in America, if you desire more graphic and hard core material, you many need to travel long distances before you find a retailer willing to sell such material.  Unlike Japan, sexually explicit material tend to be coupled together with adult entertainment stores, usually located in large metropolitan areas.  Large stores that specialize in magazines will also carry a wide selection of sexually graphic material, but not too many rural townships sport such lavishly stocked stores.  Traditionally, “pornography” had been thought to be a feature of city life in America.
    Publishing material that could be deemed “pornographic” is a high risk venture in the US.  Most major publishing houses will avoid this risk by either refraining from publishing the material completely or establish subsidiaries to publish the material, thereby making it easy to distance themselves if the need to arise.  This contrasts strongly with Japan.  Granted, the most “hard core” and sexually graphic material tend to be published by smaller publishers, but this does not mean bid publishing houses in Japan are not involved in printing sexually explicit material.  Indeed, most, if not all, major Japanese publishing houses publish sexually explicit material in the form of magazines and books.  The magazines are most interesting as the same publishing house will sport numerous magazines catering to different tastes, some of which conflict in interests on some level.  The same publishing house will cater to the tastes of older conservative adults, mothers with infants, college kids who want to know how to satisfy their partners, and salary men (primarily consisting of white collar corporate employees) who want to know where the best stores are what are the recent trends in the sex service industry.
    While both nations are deeply involved in the regulation of pornography, the tone and approaches toward pornography are radically different.  Ask anyone in America, they will more than likely have a strong opinion in the matter.  But in Japan, such issues tended to be avoided by most or only the most vaguest of answers will come back.  To be sure these are generalizations, and yet these same trends also carry into realm of political debate.  In the last thirty years, the regulation of pornography has become an increasingly political issue instead of an issue of morality.  Each group wishing to further their agenda regarding sexuality will take up pornography as part of the political activities, be that of the gays and lesbian community, conservative religious groups, libertarians, or radical feminists.  To stake out a position on pornography is the first step toward articulating policy goals and political agendas.
    In Japan, specifics regarding pornography and the standards that must be kept are only discussed in the vaguest of terms and abstract goals.  The penal code 175, the obscenity law in Japan, is worded in surprisingly vague terms, and the courts have done little to clarify the definitions.  To debate regulation of pornography, subjects of what is appropriate and what is not must come out.  The problem is, too many politicians are afraid to ruffle feathers on this issue.  The fear is any clear standard articulated by the politician may in fact not be shared by the public.  Some may criticize as it being to extreme, and some will criticize it as being modest.  Therefore a politician can avoid this issue by not diving into the details of the standards.  The regulatory bureaucracy will handle the rest.  Only the justification for regulation need be brought up.  The actual dirt work can be left in the technocracy.

 
    Historically speaking, the history of sexually explicit material dates back quite far in both the US and Japan.  While America is not Europe, nevertheless America inherited much of the literal and artistic traditions that date back to the ancient Greek and Roman civilizations.  While Christianity certainly did it’s harm in nearly obliterating the “obscene” traditions of the “heathen Greeks and Romans,” the production of sexually explicit material never was completely erased.  Hidden away from the watchful eyes of the church, sexually explicit material did survive; Away from public view, in the private libraries of the rich and well to do, in the secret museums accessed only by the elite, in the palaces of the powerful as exotic objects that act as conversation pieces.  As publishing came into age after the renaissance, “obscene” publications quickly followed suit, acting as a political tool as well as material for personal enjoyment.
    In Japan, some of the oldest written records include love songs and romantic poetry.  Some of the oldest wood structures of the world featured obscene graffiti drawn when the structures were first build.  Scrolls drawn by monks in the classical Heian period feature low-brow humor involving farting and other bodily functions.  In some cases, it becomes difficult to differentiate amusing sexual depictions from objects of worship.  Many folk religions in Japan feature fertility and sexual prowess as objects and/or subject of worship and reverence.  As we enter into the long peace era of the Tokugawa, a rich and vibrant tradition of sexually graphic art books and instruction guides, as well as novels and depictions come in to age.  The same publishing industry that produced the breath taking ukiyoe prints also produced sex manuals and erotic art prints.
    In the West, previous to the industrialization and total integration of a nation’s culture, there was a clear distinction between the cultures of the upper classes and the lower classes.  This was not looked up as elitism, it was considered to be “natural and proper.”  While they may have not articulated this in as many words as I have done here, different classes of people were expected to have different customs and cultures.  This distinction of culture also contributed in the distinct views and attitudes regarding sexuality between the classes.
This similar cultural divide was a feature in pre-modern Japan as well.  The ruling samurai class had it’s own “refined” culture while the townsmen and peasants had their own.  Sometimes the “vulgar” culture of the townsmen became so attractive that laws had to be drawn up to prevent samurais from frequenting the kabuki plays and other attractions.
    While this divide existed in both societies, the fundamental reasoning behind the existence of this divide was different between the two societies.  In the West, Christianity played a powerful role in shaping and guiding the views and values of all the class.  While there are few times in the pre-industrial age when this theological hegemony was absolute and the church had  power uniformly over all people, there was the clear assumption that all are equal before God.  The discrepancy in treatment of people by the Church could be explained away as “some are better Christians than others.”  The relationship between the rulers and the ruled could be explained as a recreation of the vertical relationship between people and God.  Kings and bishops were the custodians placed in power by God.
    It seems no single ideology or theology played such a wide power over the Japanese as did Christianity did.  Shinto, Buddhism, Confucianism, and other ideology were all employed by the ruling samurai class to justify their rule in pre-modern times.  Theoretically, the samurai bakufu government was entrusted by the emperor to administer his lands and his people, but in reality the emperor had little power.  While the samurai ruling class did in fact have dominion over the masses, they largely stayed out of their way.  As long as taxes were paid and no political unrest came up, the bakufu was perfectly content to let the people live on their own.  The samurai was the culture of administrators and warriors, with the former overshadowing the latter increasingly over the time of the pax-Tokugawa period.  Furthermore, there was a conscious effort to compartmentalize the classes.  Under the shinoukoushou systems, the samurai were at the top, then came the farmers, then came the craftsmen, then came the merchants at the bottom.  No person born in one class could be allowed to enter into another and intermarriage between the two classes were forbidden.  While this systems did not always function, we do see a clear desire to compartmentalize the cultures.  To be sure, the samurai and the peasants lived in different cultures, moral codes and values unique to each groups, and this was considered to be proper and natural.

 
    Both America and Japan moved toward a totally integrated national culture in modern times.  In America, cultural integration was a gradual process.  In Japan, the opening of Japan marked the beginning of rapid and deliberate change.
    In the case of the United States, the gradual urbanization, the rapid industrialization, and the advances in technology that increasingly made interaction over long distances less problematic, contributed toward a unified mainstream culture to be formed.  Furthermore, increasing literacy and mandatory education, coupled with the rise of the middle class, contributed toward a standardization of political, economic, and religious values.  One crucial aspect in the US was the rise of science.  By the end of 19th century, the lives of almost every American was touched by the marvels of science, be that through better medicine, electricity, or industry.  This also signified science gained a higher profile.  Never before did scientific researcher and academics enjoy such high status.  Science was increasingly relied upon as a compass to guide society.  Since only the better educated could understand and contribute to science .  A new rationalization was born for the control of the masses by a minority.  Science was knowledge, and part of that knowledge consisted of “improving the welfare of society.”  Under this justification, the subjective values of the elite could be authenticated as being “scientific” and prescribed to the other classes as well.
    The Meiji Restoration of 1868 marks one of the most dramatic conversion of a isolated relatively feudal society to a modern, rapidly industrializing world power.*1  The transition of Japan from the “backward Tokugawa era” to the world power that rivaling the West did not happen over night, but in less then 50 years, Japan when from a small isolated nation succumbing to Western gunboat diplomacy to open itself up to the world and sign unequal treaties with the Western, to an industrialized nation who won a war against Russia, owned colonies in the Far East, and was rapidly modernizing it’s infrastructure.
    The threat of Western domination of Japan contributed to the downfall of the Tokugawa bakufu and rise of the ishin samurai, who later laid the ground work for the Meiji government that followed.  Those who advocated for the modernization of Japan looked to China as an example of just how things could go wrong, and they used to argument to overthrow the Tokugawa regime  in a transition of power that was relatively peaceful.*2   Imperialism managed to humble one of the most powerful and respected nations for the Japanese.  It was believed by the leaders of the Meiji government that if Japan was to avoid colonization, it must learn from the West and modernize quickly, and become an equal power in the imperialist age.  To this end, Japanese society was to be remolded from the top down.  The shinoukoushou class system was thrown out and replaced with a new system, modeled after the British and German aristocracy system.  The Meiji leaders actively debated on how the Japanese peasants need to be reformed.  Not only was Japan’s economy and military to be modernized, so will her people, her society and her culture.  No longer would the ruling class be satisfied with allowing independent, class specific cultures to exist.  Cultural integration and guidance was a new responsibility that the government was willing to take up.
    Most of the cultural reformist and modernizers in the Meiji government were members of the samurai class.  The debates that raged regarding how and towards what end should the new Japanese public need be modernized was dominated by the belief that the peasants were lazy and needed to have samurai work ethics instilled into them.  While the leaders of the government did not expect for the all the Japanese people to become samurai, there was a clear understanding that the Japanese masses needed to be remolded and guided.

 
? 1860’s ? 1880’s, the age of liberalism
    The first 20 years of the Meiji era is marked by overall liberal tendencies.  It would be an exaggeration to say that the Japanese government considered anything from the modern West as being good, but nevertheless, publications and ideas flowed into Japan relatively unhindered and western ideology as well as literature was embraced as important teaching aids.
New technology imported from the West helped make books even more economical and cheaper than before.  Also, the government took steps to encourage the printing of newspapers.  Overall, the only material that was censored and regulated was political.  Numerous political groups used the new medium of newspapers and publishing to further their agenda, and those publications that acted as propaganda for groups that the government felt threatened were shut down and/or closely monitored.  The Tokugawa tradition of sexually explicit material continued to flourish through the form of serialized novels included in the newspapers market toward the masses.
This was a time when Victorian morals and sexuality was starting to have a impact on the daily lives of the Japanese citizen as well.  Repulsed that the Japanese people did not consider nudity, mixed bathing, various sexually explicit material, and the worship of sexual icons shameful and inappropriate, the Western governments and individuals advisors from the West made a point of strongly encouraging the Japanese government to ban such practices as they may be used to justify the unequal treatment of Japan as personified in the unequal treaties.  To this day, foreign opinions on Japanese sexuality have a profound impact on regulation of and attitudes regarding sexuality.

? 1880’s ? 1920’s, chaos of mass culture
    In the late 1880’s the Japanese government made a conscious effort to curtail some of the most liberal ideologies that were flowing into Japan.  There was some rethinking regarding the impact Western influences was having on Japanese culture and the political process.  Some leaders of the Meiji Government were worried that Japan was losing her “essence” and tradition in midst the sea of change and modernization.  The 1880’s featured civil unrest as different political groups mobilized in attempt to influence the recent drafting of the Japanese Imperial Constitution.  Education policy was clarified so the achievements of students and the moral character of the students was tied to the goals of the state, and now the Ministry of Education held tremendous power over specifying the curriculum.  Penal code 175, a law that forbid the distribution of any “obscene” material that might be construed as being “hazardous to public morals” was passed into law at this time as well.  The Home Ministry was given far reaching powers to enforce the provisions in these laws.  The culture of the masses was getting unruly, and it was time this was scaled back.
    While the state was strengthening it’s powers, artists and writers had blossomed.  Novels had started to become regarded as a serious form of artist expression, and thereby received closer attention from both the regulators and the public.  By 1910, the impact of serious literature was assumed to be powerful enough to influence the behavior of the new rising class of Japanese university students.  While the Home Ministry was already censoring literature at his time, it was argued that some as important as literature should not be censored after publishing, and in fact the government should step in to actively influence the type of material written and guide the writers.   To this end the Ministry of Education established the 1911 Committee on Literature.  Guarding the moral character of the people was on the agenda.
    While the government attempted to re-enforce “traditional values”*3 , the writers were busy deconstructing the state of Japan culture.  Some of those who were educated through the education system while the liberal tradition was still alive were disappointed at the current state of affairs, both regarding the government and the culture of the people, and they made this clear by writing in a pessimistic tone common in the 1910’s.  Furthermore, numerous authors pursued the course of writing in a “realistic” style with a heavy emphasis on introspection.  Sexual sentiments were only one part brought into attention as being part of the psychological kaleidoscope of modern Japanese men.
    Serious literature aside, the explosion of publishing caught the Home Ministry off guard.  Since it was their business to be the moral custodians of society, anything between children’s books and magazines to graphic sexually explicit material fell under their domain.  By this time the limits of retroactive censorship was coming up and subsequent laws adopted regarding the regulation of the media became increasingly restrictive.  Sexuality was only one aspect of the Japanese lives that Home Ministry felt it had jurisdiction over, but it would be something that received more and more attention.  It could be argued that the shizenshugi (“naturalist”) literature of this era set the stage for increasingly attention to sexuality.  Since literature was throught to have profound influence on young people, and issues regarding sexually was featured in this literature, it was increasing argued with conviction that sexual material has a profound impact on the moral character of Japanese people, especially the young.

? 1930’s ? 1945 general mobilization of culture
    With the Manchurian Incident of 1931, Japan plunged head first into a wartime mentality.  While this was not overnight and not everyone shared the aspirations for war, by the late 1930’s major Japanese institutions entered into a wartime mobilization footing.
    Censorship was being increasingly taken up by the Army and Navy.  The Army was much more insistent on preventative censorship, the process of prescribing what material was not suitable for publishing, and on sponsorship, the encouraging of writing on certain affairs.  The Army enthusiastically went through the Japanese culture, encouraging patriotic and pro-military material.
    While it is hard to believe that all sexually explicit material disappeared in this era, (indeed the Home Ministry could ban songs on the reasoning that the lyrics contained suggestive sighs and moans) the mobilization seriously restricted the publishing of material unrelated to the war effort.  As war with the West erupted and dragged on, shortage of resources would further contribute to the increasing power of the Home Ministry.  By controlling the rationing of paper and film, the Home Ministry was able to effectively control both the content and the partied involved in publishing and film.

? 1945 ? 1952, the US occupation
    While Japan left behind militarism and extreme authoritarianism with the end of WW2, there was an important interim period before Japan’s post war era could begin.  Between 1945 and 1952, Japan was occupied by United States Armed Forces, during which time important reforms were carried out.  Not only was the Japanese constitution heavily re-written to include provisions that US felt would contribute toward Japan become more peaceful, liberal, and democratic, major educational and institutional reforms were carried out in an attempt to solidify the changes that the US felt was needing.  The right for peaceful assembly, the right to free speech, the freedom of the press, and many other rights were enshrined in the new constitution.  The US also repealed numerous laws during this time, but one law that was not repealed was penal code 175.
    While new freedoms were granted, the US Occupation Forces also conducted what might be coined “progressive” censorship.  Certain subjects that were deemed to contribute the militarism of the Japanese people, i.e. revenge, “distortion of historical facts,” approval of suicide, anti-democratic themes, criticism of Supreme Commander of Allied Powers in Japan, and etc.  At the same time, certain subjects were encouraged, i.e. democratic values, equal treatment of women, individuality, and etc.
    While this policy may have been originally planned to be a temporary measure, in the end, the censoring of material deemed not be in the public interest of society would continue on after the end of US occupation.

? 1955 ? now, convenient gradual liberalization
    The democratic reforms and new rights granted to the Japanese people did not result in an overnight transformation of Japan.  While there was an explosion in Marxist, socialist, feminist, and other literature associated with ideologies previously banned, this did not materialize overnight.  It might be more apt to term these developments as extension of political discource that flowered briefly during the pre-militarist era of (relatively) democratic Japan.  But neither was the conservative elements silenced.  The regulator mechanism may have been curtailed and it’s goals more narrowly defined, and yet their powers to regulate still remained powerful.  Political ideology became sacred ground but pornographic and obscene material was still deemed to be suitable areas of regulation.  The focus of debate had shifted, but the relationship between the players and the mechanism at work had survived more or less intact.
    Even during the most authoritarian of times, the government regulators could not cope with the sheer volume of material that as published.  High-profile prosecutions and forced magazine shutdowns helped act as deterrent, but self-regulatory bodies and self-censorship also were integral in the overall landscape of censorship as well.  Self-regulatory bodies are industry organizations that police their own industry to insure a smooth working relationship with the police and other regulatory bodies, and help guarantee the survival of their industry.  The bodies continued to exist even after the war and some new ones came into being as the call for more regulation grew louder.  In addition, the near monopoly of the publications distribution systems insured that no black listed publication could go into wide public circulation.  The concentration of the publishing industry in Tokyo played an interesting role.  Tokyo remained relatively liberal through out the post war years, acting like a protective buffer zone for the publishing industry to reside inside.  At the same time, ordinances passed in Tokyo could have a detrimental impact on the entire industry, which means that the industry listens carefully to what the Tokyo metropolitan regulators have to say.
    While the laws themselves had changed little, and no court has overturned nor limited the regulative power of the government over pornographic and obscene material, the standards have significantly relaxed.  The key was the wide latitude the government was given over the enforcement of the laws.  Unlike American, where courts have a profound impact on the standards of acceptability, the courts in Japan rarely overturn convictions regarding material that the government prosecutes.  And yet it is not unheard of for the same material that was deemed obscene not 5 years ago to go into public circulation 5 years later.  By choosing to either warn or prosecute the material, the government effectively sends out the message that the said material is acceptable to be in public circulation.  At the same time, much of the material is never specifically sanctioned as being legal, thereby creating a gray zone, a zone in which most pornographic material readily available in Japan today are situated inside.
    The gradual liberalization that has followed since 1952 could be characterized as enforcement by non-enforcement.  Publishers, eager to cater to varying tastes of the readers, continually stretch the envelop of what is deemed to be acceptable by the authorities.  Sometimes the regulatory institutions will respond by issuing a warning, at which time the publisher or magazine will more than likely “tone down” their material until the heat eases off, and then resume publishing the material again.  If the authorities do not reiterate their concern over the material, then it will be assumed that the envelop has stretched a little further.  Public controversy or a politician’s crusade will build to produce flare-ups of increased regulation and stronger self-censorship.  These outbursts are prone to breakout after the discovery of particularly brutal crimes with high saturation media coverage and where the public and the news media assume that the crime was perpetuated in part as a consequence to exposure to some particularly offensive material.*4   This has happened a number of times since the end of WW2 in Japan, and yet the these flare-ups of increased policing of morality seem to produce little if any lasting impact on the overall trend of liberalization.  Comic books, photo magazines, novels, films, and software and the Internet have all come under the scrutiny of the regulators, and yet in all of these fields the trend has been that of steady liberalization over the long term.  Sexually explicit fictional literature rarely comes up a subject of official sanction.  The self censoring of comic books has become increasingly lax and unregulated.  Video and games can portray even more graphic material than ever before.
    Censorship still exists and government still pours over material released to the public, but the central regulatory mechanism has become a reluctant partner in outright banning pornography for the moment.  Private organizations, local and prefecture governments are a lot more active in attempts to limit the distribution of sexually explicit material.  However, the legal basis for government has not lessened in the last 50 years in Japan.  In fact, in same respects, legally speaking, the government has more power now than before when the US left Japan.  Regulators continually influence the industry through issuing warnings, advising them regarding undesirable contenct, asking for the industry to jishuku (“scale back”) producing material that raises public concern, and so on.
    This is a far contrast to America where the history of pornography regulation has been that of steady erosion of legal powers to conduct censorship.
 

 
? The pre-Comstock era
    As stated previously, US inherited much from the English and European traditions regarding the regulation of morality and sexually explicit material.  As long as the material was hidden away in the private residents of the rich, the material posed no real threat.  The regulation of obscene and lewd material was considered to be a given by the overall public by in large.  The concept of the Young Person played an important part in the debate over the regulation of pornography America.  The Young Person is defined by Walter Kendrick in his book, The Secret Museum, as a fictitious individual that was believed to be influenced by pornography and other obscene material.  The Young Person become a common and powerful tool to be invoked as justification for the regulation of any material that might do harm to those that came into contact with the material.
    In 1868, following the English court case of Regina v. Hicklin, the presiding judge deemed that any material can be banned if it might bring about harmful influences on those that view it’s contents.  It didn’t matter if the book was academic.  The burden rested on insuring the metal hygiene of the impressionable Young Person.*5   America’s era of indiscriminate sexual repression relied heavily on the judicial logic of the “Hicklin Test.”

? 1870’s ? 1910’s, Comstock’s era
    The Civil War accelerated the trend in industrialization and improved interstate trade in the United States.  While sexually explicit material had been in existence, the distribution and sales of this material was relatively limited to the major metropolitan areas.  But with the advent of better technology and improved distribution, it became easier to produce and market sexually explicit material in America.  But one man started a personal crusade to cure America of, in his eyes, the endemic plague of smut that was about to corrupt the minds of the American youth and destroy civilization.  The man was Anthony Comstock, a common clerk of a unremarkable dry-good store in New York.
    Comstock was not a politician nor a police officer, yet he would gain powers that most officers and politicians only dream of acquiring.  Originally he was a private citizen who went about investigating the pornography industry and reported this information to the police so that  arrests could follow.  Buoyed by some high profile arrests he was able to make with the financial help of the YMCA, Comstock and the YMCA lobbied the federal government to pass stronger legislation against the sale and distribution of the obscene material.  Following the signing of “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use” (more commonly known as the Comstock Law) into law in 1872, Comstock became a special agent for the US Post Office.  For the next forty years, Comstock’s power was virtually unchecked as he went about the continental United States chasing after the moral menace he felt threatened America’s survival.
    The tactics he employed were considered crude and possibly illegal even by his contemporaries.  And yet, as an agent of the post office, possibly the branch of the federal government that the most direct contact with ordinary Americans, he was able to dictate the moral standards of the nation.
    His target was wide and varied.  He would go after catalogs of classical art, modern European prints, slides of famous ancient statues, along with the common smut.  He was not concerned over the context of the material as much as he was concerned how Young Persons would interpret this material.   Comstock saw the Young Persons as health young men who are sucked dry of his vitality by the corrupting influences of obscene material.  He saw a world around him surrounded by material that seduces young men to conduct sin, either in privacy or in public.  It did not matter to him if the material had important artistic and/or academic importance.  If it met the “Hicklin Test” (in Comstock’s mind,) then it had to be restricted from the public and/or destroyed.
    To be sure, Comstock’s “reign of terror” was not absolute.  He was a single man, assisted by a few other men.  His efforts were greeted with apathy and ridicule by the public, and the government did little to expand Comstock’s operation.  He could not raid every private and public library in America, but in the process of his crusade, he also managed to slow the dissemination of information regarding birth control and sexual hygiene, as well as help reinforce this nation’s tendency to be squeamish about nudity and sex.  During the late 1800’s, the need to maintain public morality was not questioned.  What was at issue was the excessiveness of Comstock’s alarm.  But it was only after the 1900’s when the public, public activists, writers, and artists started to seriously questioned the criteria that Comstock employed.

? 1900’s ? 1970’s, Emergence of modern pornography.
    Towards the end of his lifetime, Anthony Comstock saw the moral ideal he was dedicated on having America adopt face increasing resistance from a number of fronts.  Judges started to allow more and more previously banned classical literature to be widely circulated.  Activists sought to educate the public regarding birth control and sexual hygiene.  Artists were more adamant in depicting life in a realistic and un-beautified manner.  And the public was general responding positively to these changes.  Had Comstock led and established an institution instead of being an institution, his struggle may have survived a little longer.  But he was one man in country that seems to be less and less concerned over the wolves he warned would destroy America.
    By this time a new debate had emerged; how could serious material pertaining to sex be set apart from material that is obscene?  The tastes of the public was changing, and certain forms of sexually explicit material was deemed to be acceptable.  For artists, activists, and the public, the intentions, context, and value of the material started to become important issues when trying to distinguish between the profane and the exotic.  These three factors will dominate the debate concerning pornography in America during this time period.
    Pornography first entered into the judicial language in America in 1898 in a court ruling regarding the liquidation of classical literature that might be construed as being obscene by some.  The court ruled that since these expensive hardcover publications are unlikely to fall into the hands of people who would find such material to sexually exciting, it need not worry about the impact the contents of these books might have.  This was also the beginning of the downfall of the “Hicklin Test.”  Pornography was defined in this ruling as cheap literature with no artistic merit that’s designed to excite vulgar minds.*6
    The focus shifted increasingly from classics to more modern fiction.  The Comstock Law was not concerned over whether or not the material could be considered a historical classic, but a series of court rulings insured that classical literature would largely left alone in the future.  As the 1930’s came around, modern fiction was about to make it’s most sensational steps toward liberation.
    In 1922, the New York State Court of Appeals introduced the “whole book concept” with it’s ruling regarding Th?ophile Gautier’s Mademoiselle de Maupin.  Justice William S. Andrews made it clear in his comments that, while individual passages from the publication might be construed as being indecent, to judge the quality of a publication, the entirety of the book needed to be considered.*7
    One interesting feature over the debate concerning the regulation of obscenity was that the middle ground was deemed to be the most important field of battle.  Walter Kendrick deliberates on this point very clearly in his book, The Secret Museum.
 

“The prevailing assumption was that there existed a sort of spectrum of moral acceptability in books, ranging from the pristine at one end to the “frankly pornographic” at the other.  It was also believed… …that both extremes were equally obvious.  If the morally unacceptable was to be banned---again, everyone agreed that it should be---controversy could occur nowhere but in the middle range, where doubt was possible.”*8


This is far cry from Japan where the excess was always targeted to act as an example to deter others from treading that path, but the line of acceptability was never drawn on a straightforward manner.  But here in America, there was a deliberate attempt to clarify the ambiguity of what was acceptable and what was not, and furthermore, this mentality persists to this day.
    James Joyce’s Ulysses was the perfect example for the battle in the middle.  An epic concerned over the nature of men and women in all it’s entirety, the book was too sophisticated and well respected in the literary circles for it to be disregarded as simple smut, but at the same time, parts of the book was a lot more sexually graphic than what people were used to being included in “literature.”  The 1933 ruling that vindicated Ulysses as being real literature set the tone for debate for the next decade.  The subject and content of the material need not matter if the material is not pornographic, i.e. “dirt of dirt’s sake.”  The intent of the author and artistic quality of the material overrode concerns regarding the “Hicklin Test.”  The middle ground was irrevocably redrawn after the Ulysses ruling, and a new polarity emerged in its aftermath.  Now the polarity was between art and pornography, not between sex and lack of sex.
    One of the most important implications that was established following the Ulysses decision was the clear division between the obscene and the artistic.  Previous to this era, it mattered little whether something was artistic or not.  Certain subject matters were deemed to be inappropriate for public circulation no matter what the circumstances.  But now, if something was deemed to be of historical value, of literary value, or of artistic value, then the material was no longer considered to be pornographic.  The Young Person was assumed to be uninterested in material of artistic and academic quality as a source of sexual excitement, and so, the “Hicklin Test” was effectively dead.
    1957 saw a flurry of activity regarding the regulation so pornography.  It marked the end of the “Hicklin Test,” the acceptability of erotic material pertaining to “normal” sexual relations was established, and the new standard of pornography as material “utterly without redeeming social importance” came into being.  The case delivered the nail to the Hicklin Test’s coffin is the famous 1957 Roth case.  While Samuel Roth lost his case regarding the material that he was publishing, Judge Jeroeme Frank added commentary regarding the acceptability of publishing material regarding “normal sexuality.”  Roth’s case, along another, went to the US Supreme Court, where again he lost and the constitutionality of regulation of obscenity was  upheld, but in the commentary, Justice William Brennan added “…implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”*9   The key word in the phrase was “utterly,” for that implied that something could be deemed acceptable if there was something, anything, that was socially redeeming about it.  The phrase would be refined and made more specific over the years by the courts, and yet, this also made it clear that it would be harder to brand something as being pornographic if it had some redeeming quality to it.
    So what would something have to contain for it to be unquestionably pornographic?  For here on, efforts to define pornography would concentrate isolating the “hard core” of pornography, the element that divides material that can be tolerated by society versus material that threatens the society.  Some sexual material was deemed to be acceptable because it conforms to the (idealized) culture of US society, which means that material that deviates from the norm and threatens it must be contained and repressed.  Hard core pornography, defined by this logic, was pornography nonetheless, and it was assumed to be consumed for the purposed of fulfilling the desire for those to masturbate.  Kendrick is brilliant in The Secret Museum describing how Freud’s notions of the sexual consequences of arrested development feeds into America’s association of masturbation as an infantile activity.  Kendrick argues that since Freud identified “monogamous, genital heterosexuality as the universal goal of human development,” American popular culture reinterpreted this as to mean that masturbation “was a retarded activity, indicating mental enfeeblement on the part of the masturbator and those who catered to him.”*10   In the context of this reevaluation of the function of pornography, the Young Person was reborn, but not as the easily corrupted innocent youth.
 

“{The Young Person} was the more sinister figure of a mentally defective adult---probably male, probably also of lower-class origin---who wallowed in infantile idiocy and wished to make others do the same.  This mid-twentieth-century Young Person had no taste for art, literature, or anything of “social importance.”  …he preferred to swell in the never-never land that {Steven} Marcus dubbed “pornotopia.”  He was dangerous, however, even more dangerous than his predecessors, because he was inclined to bend reality to suit his dreams.  He had to be restrained, therefore---and the best way to restrain him was still, as it has always been, to control his access to presentations.”*11


Hence censorship was justified under the prerogative that is was to isolate and repress material that deviates from the norms of what is acceptable by society.  To this day, this logic is the most compelling justification for censorship in America today.
    However, soon the problem will arise of trying to identify which norms of sexuality should be protected?  This question most dominates the debate over pornography in America today.

? 1970’s ? now, the post-pornographic age
    The most recent stage in pornography in America marks at which time pornography, as a category of fit to be censored, imploded.  Over the course of recent court rulings and the profusion of different attitudes regarding sexuality, very little material can be censored without raising the ire of the courts.
    In 1966 the book that optimized pornography for over two centuries, John Cleland’s Fanny Hill, was made declared by the Supreme Court to not pornographic nor obscene.  The floodgates for erotic literature was open and numerous previously banned books were in print soon after the ruling.  The ruling effectively made all written fiction literature safe from being prosecuted as being obscenity in the United States.  Four years later, a Presidential Commission submitted it’s finding to Nixon with conclusions far more radical than the 1966 ruling.  It found little scientific causality to exist between criminal acts and expose to pornography, and furthermore could find little reason why.  It went on to point out morals are important to a nation and it’s people, nevertheless “government regulation of moral choice can deprive the individual of the responsibility for personal decision which is essential to the formation of genuine moral standards.  Such regulations would also tend to establish an official moral orthodoxy, contrary to our most fundamental constitutional traditions.”*12   The commission recommended the repeal of all local and federal obscenity and pornography laws.
    While these recommendations were never carried out, and in fact President Nixon lambasted the commissions findings, the regulation of pornography entered into a new era.  Pornography was equated with something without any social merit, devoid of creativity and artistic quality, and deprived of popular support.  The problem is nothing of real significance might fall into this category.  Pornography became analogous with trash, and as trash, little cultural significance could be attached to it’s regulation.
    The regulation of sexually explicit material still involves fierce debate, but the debate is not of morality but of power.  Who should dictate the boundaries of acceptable sexuality has become a central issue regarding the regulation of pornography.  This issue of power to regulate has become a vehicle for political advancement for numerous sexualities in the US.  Fundamentalist Christian groups, radicalist feminists, gays and lesbians, and other groups who preach the advancement of a particular form of sexuality have rallied around the regulation of sexual explicit material as a means of forwarding their agenda for social change.  Pornography is no longer a separate entity of American sexuality, something that the regulators need to keep at bay to protect the masses from it.  American society had become mirrored in pornography, implying that the two elements cannot be divided apart anymore.
 

 
    The last statement regarding American pornography raises interesting implications.  It explains why American pornography is hidden from public view---it is because sex and acts that connect to sex is hidden from public view in America.  It explains why American pornographic magazines and films are so similar to one another---it is because there exists in American the monolithic hegemony of sexuality of the white American heterosexual male.  It explains why there are such heated debates regarding the regulation of pornography in America today---it is because the regulation of pornography directly ties to the regulation of sexuality in real life.
    Then does this mean that Japanese sexuality is varied and public?  On the contrary, if anything the Japanese are just as private about sex in modern times and a hegemony exists there as well.  Instead, the discrepancy between the nature of pornography in Japan and the sexuality of the Japanese should be interpreted as a sign that something almost like the opposite of America is the norm in Japan.  Depicted sexuality is not equated with actual sexuality of society.
    Japan has been long been famous for the compartmentalized nature of the behavior of individuals. People will act very differently depending on the social circumstance of the situation. This also applied to the individual’s sexuality as well.  As long as sexuality remains compartmentalized in areas that does not influence work, school, or public duty, then it is permissible to be just as.  For many years before the end of WW2, all aspects of the individual was considered to be tied to the interests of the state, and therefore, the censorship of pornography reflected the authoritarian control of the state over the masses.  After WW2, the state’s power to police the morality of the people was curtailed but not eliminated, but more importantly, the private sphere of the Japanese individual was no longer considered a legitimate domain for public control.  It is believed that the Japanese state still needs to keep in check people’s sexuality to make sure that it does not spill out of it’s proper place.  In times when the public, the news media, and state perceives this compartmentalization to have been compromised, it will strengthen censorship in order to reinforce it.  Once this fear abates, the grip loosens as well.
    I do not wish to say that this the only mechanism that is at work in the United States and Japan, but I do want argue that these are the dominant mechanisms most evident from historical and contemporary evidence available.  Certainly, parts of the Japanese model are active in America and the parts of the American model are active in Japan as well.  Nevertheless the issues and debates that rage in Japan and America can be better understood with these models in mind.
    In America, the control over pornography has largely been reclaimed by the people.  This explains the degree of discrepancy in treatment of pornography depending on geographic location.  Some states and local governments are a lot more restrictive than other regarding pornography, just as they are concerning sexuality.  In Japan, control still remains primarily in the hands of the state.  Originally, the members of the samurai class took it upon themselves to be the moral guardians of society.  This was replaced by a permanent bureaucracy who maintained the elitist stance regarding moral paternalism.  The military used this bureaucracy and moral authority in their total mobilization.  After the war, the power was curtailed but the moral authority of “well educated” bureaucracy and “virtuous” police was no questioned.  But now, with the steady discrediting of the bureaucracy and the police force following a series of scandals, this authority is increasing under scrutiny.
    The American ambiguity over pornography might be argued to represent American identity crisis over sexuality.  As a society, we are not quite comfortable with the preponderance of alternative sexualities, and we have yet to work out how these sexualities should be accommodated.
    The Japanese ambiguity over pornography might be argued to represent the identity crisis that the Japanese censors are suffering from.  On one hand, the constitution and democratic principles make their justification for control flimsy at best, unconstitutional at worst.  But old habits die hard, especially when laws that justify the power of the censors are still active and upheld by the courts.  The “enlightened agent” must protect the moral integrity of Japan, but if they go too far, they’re authority might be fundamentally questioned, leading the courts to curtail the powers of the censors.  If they don’t curve something, then their existence and their budgets will be called into question.
    Both Japan and US can be seen as struggling in a moral and social flux.  Censorship reflects the desire for stability, security, and certainty in social arrangements.  The parties with power over altering or maintaining these social arrangements in their respective societies will largely determine what the boundaries of pornography are.

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