Kevin W. Saunders' "Degradation"

Kevin W. Saunders is Charles Clarke Chair in Constitutional Law at Michigan State University College of Law. He is the author of Violence as Obscenity: Limiting the Media's First Amendment Protection and Saving Our Children from the First Amendment.

He applied the “Page 99 Test” to his new book, Degradation: What the History of Obscenity Tells Us about Hate Speech, and reported the following:

Page 99 is the ideal locus for an explanation of the thesis and scope of this book. It is the first page of a chapter titled "What about Hate Speech?" and begins a transition between two very different parts of the work.

The first half of the book is an examination of pornography and obscenity. Pornography, which includes all sexual images, has been open and accepted in some cultures and eras. In others, it has been considered obscene; that is, it has been seen as sufficiently objectionable as to be subject to sanctions. The difference, from culture to culture and era to era, is found in whether or not sexual depiction is seen as degrading to human kind. In classical Greece and Rome and in pre-colonial India, sexual depiction, even rather explicit sexual depiction, was perfectly acceptable. I argue that this is because in polytheistic cultures, with gods and goddesses who engage in sexual activity, sex is not seen as separating humanity from the divine and placing us on the animal side of a divine/animal chasm. Sex is not degrading, and sexual depiction does not present a negative view of humanity.

With the advent of monotheistic religions, the situation changes dramatically. A monotheistic God is not a sexual creature. Human sexual activity may be seen as placing us on the animal side of that chasm and separating us from the divine. Sexual depiction of humans may therefore be seen as degrading. In the modern era, despite our monotheism, we seem to be more accepting of the animal side of human nature, and we have come to accept sexual depiction to the degree that we see very few obscenity prosecutions.

Here we reach page 99, which says:

Sexual depictions were seen as degrading in some eras and not in others. In the eras in which such depictions were seen as degrading, they were regulated. Society in the current era may not see sexual images as degrading, although that attitude is clearly not universal. Most people do currently recognize hate speech as being degrading, although again the attitude may not be universal. If hate speech is the current form of degrading speech, then past experience with the regulation of degrading speech would be valuable in examining how to regulate hate speech. The law of obscenity could then provide guidance to any efforts in that direction.

The remainder of the book then looks at how obscenity has been conceptualized and developed into a legal test. The concept and test are adapted to hate speech with for example, a change from an appeal to a prurient interest in sex to an appeal to a degraded image of those in the target group. Instead of placing all of humanity on a level below the divine, hate speech puts its target group on a level below that of the rest of humanity. With an adapted test in hand, I go on to analyze a variety of speech acts to determine whether or not they should be considered hate speech.

Learn more about Degradation at the publisher's website.

--Marshal Zeringue