Obscenity is out, criminalization is in: what today’s moral panics about LGBTQ+ people have in common with post-identity resilience discourse
When I was growing up, my hometown was the epicenter of three moral panics about obscene sex that snowballed to the national stage: two grew so big they went to trial and became national media spectacles and one led to Congressional hearings. In 1977, Hamilton County, Ohio district attorney Simon Leis brought Hustler publisher Larry Flynt up on obsecenity charges for distributing sexually explicit material that was supposedly harmful to minors; a technical matter from this case about attorney representation eventually made its way to the Supreme Court. In 1983 Chris and Mitzi Alley’s objection to the lyrics in Prince’s “Let’s Pretend We’re Married” filtered up from a complaint to his local Delshire Elementary PTA, to the National PTA, and eventually to the Parents Music Resource Center (PMRC) and their infamous Congressional hearings about pop music lyrics. And finally, in 1990, the City of Cincinnati charged the Contemporary Arts Center with obscenity for displaying the Robert Mapplethorpe retrospective The Perfect Moment, which included photos depicting naked children and gay sex.
As these examples demonstrate, late 20th century moral panics about sex and sexuality framed the problem as one of obscenity, i.e., of sex that transgressed community norms. Today’s moral panics about LGBTQ+ people frame the issue differently: in 21st century moral panics about queer people as “groomers” or trans people using the bathroom, the purported violation isn’t of a norm, but laws against sexual assault. Comparing the way these obscenity moral panics from the late 20th century frame deviant sexuality to the way the current moral panics frame illegitimate sexual and gender identities helps to clarify what these moral panics have in common with both the hyperconservative jurisprudence informing the US Supreme Court’s recent rulings on abortion, gun rights, and public school funding, on the one hand, and with neoliberal ideologies of austerity. Whereas US obscenity law protects a public’s commonly-held (if hegemonic and cisheterosexist) sensibility, today’s anti-LGBTQ+ moral panics leverage laws that protect the boundaries of the white patriarchal nuclear family. Historically, the state governed and enforced civic norms, but today the state governs and enforces the rules of the white patriarchal private sphere.
Norms
In U.S. law, obscenity is a violation of community norms. The 1973 Supreme Court case Miller vs. California lays out a three-part test for juries to use when determining if something is obscene or not: “(1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The first part indexes jurors’ judgment to “community standards,” i.e., the norms within a given social context, and uses that as the standard to determine if something is normal or “purient”/deviant. The third part also appeals to norms, this time about what counts as “serious” cultural or scientific value. Further, jurors are instructed to adopt the perspective of “average persons,” i.e., normies. And in this framework, norms are located in the public sphere, the “community,” or the averaged population.
You can see this reference to a public of some sort quite clearly in these late 20th century obscenity moral panics. First, in the case of obscene song lyrics, everyone from Rick Alley to the retail associations responding to the moral panic framed the issue with song lyrics in terms of consumer choice regarding social taboos. Originally, Alley’s original demand was for lyrics to be accurately printed on album covers so consumers could make informed choices about the age-appropriateness of a record’s musical content, much like the MPAA rating system does with films. As he told VH1 in 2000, “I’m a First Amendment Guy. I think people who write songs shouldn’t be hindered in any way. But I do want to know what’s in the lyrics”. Beginning with a gesture toward the civil right of free speech, Alley ends with the idea of something like informed consent: he just wanted full disclosure of what he was getting into. Specifically, he wanted to know if the lyrics discussed things inappropriate for an audience of the general public. Or, as he put it in that same VH1 interview, “If it’s something you wouldn’t want to play in front of your mother, it’s probably something that needs a label on it.” Other evidence makes it clear that the mother here is a figure who enforces social norms, not a representative of the domestic family sphere. First, Alley told the Cincinnati Enquirer in 1984 that “‘the thing that really scares me…is that they’ll make this into some kind of bible-thumping, record-burning thing.” This suggests that Alley’s objections are rooted less in any Moral Majority-style belief that religious law superceded civil law and more in a small-c conservative approach to matters of social propriety. Though Jerry Fallwell did eventually jump on this cause and bend it in his direction, industry people continued to understand the problem as one of community norms. For example, the LA Times reports in 1985 that “James Bonk, executive vice president of Ohio-based Camelot Music, told his fellow retailers in a speech before the National Assn. of Recording Merchandisers last month in San Diego that shopping mall owners have begun including a clause in their leases that gives them the right to ask record shops to pull out merchandise that is “morally objectionable.””” Whereas ethics are rule- and principle-based value systems, morals are conventions. Something is “morally objectionable” if it transgresses the boundaries of what is customarily acceptable in a given context. So it is clear that despite some attempts by the far right to hijack this into a religious issue, at its core the “porn rock” moral panic of the early 1980s was an issue of community norms.
Almost like they were following the 20-year cycle at which old fashion trends seem to come back in style, Southwest Ohio law enforcement officials brought Flynt up on obscenity charges both in 1977 and in 1999, and in both cases Flynt’s transgression was framed as a violation of community norms. As The New York Times explains in 1999, Flynt attempted take an activist approach to his second trial that would use it as an opportunity to prove that public sentiment had evolved to a more progressive place in the past two decades:
Mr. Flynt had predicted that the trial would demonstrate the changing mores of society. He had said contemporary community standards, a cornerstone of the Constitutional definition on obscenity, had changed sharply since he was convicted of pandering obscenity in Cincinnati in 1977. But in making his plea agreement on the third day of jury selection, Mr. Flynt chose not to test his theory.
Though Flynt ultimately decided not to test his hypothesis in court, its framing demonstrates that in both the eyes of the law and the eyes of the public, the issue was one of community norms.
Community norms were also at the center of the moral panic and ensuing charges against the Contemporary Arts Center’s exhibition of photos by then recently deceased queer photographer Robert Mapplethorpe. The museum was charged with one count of pandering obscenity for its display of two photos of naked minors, and one count of obscenity for displaying photos depicting sexual intercourse. Given the nature of today’s moral panics over purported child sexual abuse (Pizzagate, “groomers,” etc.), the first count is especially revealing of the differences between that moment and the present one. In that first count, photos of nude children weren’t treated as cases of sexual abuse, but of obscenity.
From the 70s through the 90s, moral panics about queer people and queer sex were framed in terms of the violation of community norms. In other words, the authority to which these objections appeal is a community, a public. And the form this public’s authority takes is that of a norm, either as a universal standard to which all must conform, or as a mathematical average across a group. I wrote more about norms here. Even though these three decades were the precise moment when neoliberalization swept the US from “Ford to New York: Drop Dead” to Reaganism to Clinton’s welfare reforms, these moral panics make it clear that at least at the level of popular culture, the policing of sexuality seemed to be lagging behind evolving policies about things like the AIDS crisis and mothers on welfare that policed sexuality as a matter of private individual and family responsibility, not public standards. Even though, as Melinda Cooper has shown in Life as Surplus and Family Values, policies were focused less on a normative biopolitics of the population and more on a legitimating biopolitics of private responsibility, even through the 1990s popular imagiaries remained focused around norms. (I am reminded of The Goo Goo Dolls’ 1993 single “We Are The Normal.”)
After norms
As I’ve suggested elsewhere, American popular imaginaries began to question the previously taken-for-granted connection between sexuality and norms in 2013. That year marked the publication of K-Hole’s essay on “normcore,” or adopting a basic style to rebel against demands for ever-more-unique personal branding. 2031 is also the year Beyonce released her first explicitly feminist song, “Flawless,” kicking off the popular feminist pop music bubble. The year before that, philosopher Ladelle McWhorter published a paper arguing that queer theory’s traditional commitments to anti-normativty were ill-equipped to address contemporary extranormative forms of power. As she explains, “Practices of queering identities emerged near the end of the twentieth century as ways of resisting normalizing networks of power/knowledge. But how effective are queer practices at resisting networks of power/knowledge (including disciplines) that are not primarily normalizing in their functioning?” In other words, though queer theory and activitism traditionally focused on antinormative resistance to normative sexual regimes, antinormativity isn’t the right tool to fight a 21st century cisheteropatriarchy which de-centers norms in favor of other methods of policing sexuality. By 2022, there was wide uptake among the extremely online that a “vibe shift” had occurred sometime in the new decade and now there was no single dominant pop culture trend or style, just a proliferation of niche online subcultures. As ex-K-Hole trend forecaster Sean Monahan put it, “People [are] going off in a lot of different directions because it doesn’t feel like there’s a coherent, singular vision for music or fashion.” For example, we were once able to point to overall trends in the pop music market: hair metal in the late 80s, alternative in the early 90s, slick idol and boy-band pop in the late 90s, dance-punk in the aughts, and the EDM bubble of the 2010s. But today in 2022 it’s difficult, beyond an abrupt swerve toward house by two superstars (Beyonce & Drake), to point to a single style or trend driving the mainstream music industry at any given moment. That’s because in the era of personalized audio streaming driven by recommendation algorithms targeting individual users, there is no listening public to speak of.
Instead of appealing to the authority of the community or the public, today’s moral panics about LGBTQ+ people use logics of criminalization and what political theologian Adam Kotsko calls “demonization” to appeal to the authority of the private patriarchal family. With their focus on people supposedly always-already guilty of child sexual abuse, today’s moral panics have more in common with the Satanic Panic of the 80s than they do the obscenity moral panics I discussed above. As Melissa Gira Grant reported in June 2022,
From protests at drag queen story hours to laws prohibiting trans teens from receiving affirming health care, today’s moral panics criminalize LGBTQ+ people and their allies as child sexual abusers. In this framework, LGBTQ+ people’s offense is not of community or public norms, but of the boundaries the state has drawn around legitimate sexual and gender identities, which strictly reflect the order of the white cisheteropatriarchal family.
As Lisa Cacho explains it, criminalization is a form of oppression that targets people for who they are, not for what they do. “Targeted populations do not need to break laws to be criminalized” because, as Cacho puts it, “US law targets their being and bodies, not their behavior” (6). For example, it is now pretty well known and accepted on the left that police target Black people mainly because they are Black, not because they have broken any laws. Similarly, Cacho’s opening anecdote in her book Social Death: Racialized Rightlessness and the Criminalization of the Unprotected shows how media described Katrina victims scavenging for food as “looters” if they were Black but in non-criminal terms if they were white. Criminalized people don’t need to do anything to be excluded from personhood; that exclusion is contingent upon their identity, not their behavior. In this way, criminalization is a logic used to maintain formal equality before the law in theory while eliminating it in practice: “As targets of regulation and containment, they are deemed deserving of discipline and punishment but not worthy of protection…criminalized as always already objects or targets of law, never its authors or addressees” (5). To be criminalized is, as Cacho argues, to be “always already” entitled to the law’s obligations while being denied its protections.
In Cacho’s analysis, criminalization is primarily something applied to and experienced by people of color. What we are seeing today with the far right anti-LGBTQ moral panics is an attempt to extend criminalization to white queer people and, with the recent overtunging of Roe v. Wade, to white cis women as well. Some laws criminalize providing affirming health care to trans minors as a form of child abuse. Now that Roe is overturned, other laws criminalize health care for pregnancy complications, and some states that ban aboriton are trying to bring back fugitive slave laws in the form of fugitive uterus-haver laws that effectively criminalize people who look like cis women for crossing state lines. “Don’t Say Gay” and other anti “CRT” laws criminalize talking about the existence of queer people, racism, and the like in public school classrooms. Instead of appealing to a public or community, today’s moral panics about sex and sexuality appeal to the authority of the state to enforce the boundaries of the cisheteropatriarchal family.
Criminalization is analogous to the phenomenon Adam Kotsko calls “demonization,” or the use of so-called “personal responsibility” to scapegoat people for who they are under the guise of blaming them for what they purportedly do. Understanding the current criminalization of LGBTQ+ people as demonization highlights the connection between the right’s explicit oppression of LGBTQ+ people with the more implicit but no less severe ways neoliberal states and institutions also oppress them.
Kotsko shows how neoliberalism from the 1970s to today use an updated version of the philosophical gymnastics scholastic Christian philosophers used to try to explain how and why an all-good, all-powerful God could allow for the existence of evil to mark the racialized break between persons and non-persons. If you remember your Descartes, you know that the idea of free will is the thing scholastics invented in order to explain how an all-good and all-powerful God could allow for the existence of evil: for example, in the fourth Meditation, Descartes says that evil exists because of the gap between humans’ finite knowledge and infinite free will.
Though Descartes was a secular thinker, he’s working from a Christian tradition wherein free choice is a similar scapegoat. As Kotsko explains, “for the fallen angels–better known as demons–the free choice to rebel against God is permanent and irrevocable” (82). The figure of the demon is someone who has always already chosen to rebel against God’s demand for obedience and subordination, much like the criminalized person is, in Cacho’s language, “always already” guilty. The idea is that because God can use God’s infinite power and wisdom to resiliently transform evil into capital-G Good, “the first thing God does is induce some of his creatures to ‘rebel’ against a meaningless imperious demand, to ensure that there will be a reservoir of evil for him to turn toward the greater good” (84). From this perspective, God is the OG creative destroyer–and here’s another parallel between neoliberalism and pre-modern Christian philosophy. God supposedly creates some people as inherently evil so that there are opportunities for God to demonstrate God’s omnipotent goodness.
Kotsko abstracts a logic of demonization from the Christian account of demons: “to demonize,” Kotsko explains, “is to set someone up to fall, providing them with just the barest sliver of agency necessary to render them blameworthy” (84). In the original Christian context, demons were created in a state of basically preexisting disobedience–much in the same way that we’re all supposed to have consented to the social contract yet oddly nobody’s ever actually asked me to sign anything so it is assumed I’ve always-already consented, demons were presumed to basically have always-already consented or decided to rebel against God’s demand for obedience. So, demons were given free choice in theory, but yet never in actual practice or experience.
In other words, demonization says it’s about what you do–your free choices–but it’s not–it’s about who you are. In this way, it perhaps parallels contemporary logics of criminalization, which similarly purport to be determinations based on people’s actions (like ‘looting’) but which are actually about people’s racial identities. Kotsko’s claim is that neoliberalism uses the same logic to re-make classical liberalism’s distinction between persons and non-persons, which were explicitly and directly identity-based, into nominally performance-based distinctions that actually just recreate the old identity-based distinctions. Stop-and-frisk policing is an example of this: supposedly it identifies people who act suspiciously, but really it just targeted black and Latino men for who they were.
Kotsko’s discussion of the distinction between demons and sinful humans echoes Lester Spence’s description of the way neoliberalism divides people into three degrees of in/exclusion. According to Spence, the top group are those who are seen as already having successfully adapted to neoliberal market logics. The second group are those who are seen as capable of successfully adapting to neoliberal market logics–this group includes things like girls who can learn to code or be interested in STEM, white women who can Lean In, and so on. The third and bottom group are those who are seen as unwilling or incapable of adapting to neoliberal market logics. Spence emphasizes that African Americans are almost always put in the third group.
Kotsko’s description of the difference between demons and sinful humans echoes the difference between Spence’s second and third groups:
Demonization in the strictest sense occurs only in the fall of the devil and his demons: an instantaneous and irreversible descent into evil, for which no redemption is possible. Yet what happens to human beings under the sway of original sin is not different in kind so much as in degree. Sinful humans start out, like the demons, in a state of moral dereliction from the very first moment of their existence, but unlike the demons, they have the opportunity to benefit from the divine economy of salvation. We can say, then, that original sin imposes on human beings a conditional demonization, in contrast to the absolute demonization experienced by fallen angels” (85).
Sinful humans, like Spence’s second group, are capable of redemption, whereas demons are not. The parallels between Spence’s and Kotsko’s accounts of exclusion are strong evidence in favor of Kotsko’s claim that the overarching conceptual architecture neoliberalism uses to distinguish persons from non-persons is really just centuries-old European Christian philosophy. The house has been gutted and flipped for today’s market, but the underlying structure is the same.
Kotsko argues that the main difference between neoliberals and neocons/neoreactionaries is that the former are more interested in growing the second, middle group capable of possible redemption, whereas the latter are more interested in growing the third, permanently and irrevocably excluded group. As he puts it, the two groups are invested in the same basic rhetoric and logics, with “neoconservatives favoring demonization and the neoliberals focusing on the possibility of redemption” (92). This makes a lot of sense if you think of the second group as a stockpile of resilience. As I’ve argued, resilience is a form of neoliberal creative destruction: it recycles damage or lack into profit. Spence’s second group–or Kotsko’s “sinful humans”–are ripe for neoliberal exploitation, their resilient overcoming of incapacity or sin a goldmine for markets. Perhaps the clearest recent example of neoliberal resilience discourse is the way the US government responded to the COVID-19 pandemic: after a year or so of extra protections, public health has been reduced to a matter of private individual responsibility. In such a context, those with more structural advantages will bounce back sooner and better than those without, say, the class privilege to work from home or the gender privilege of avoiding burdensome care work. Resilience discourse is a form of demonization in that it uses purported freedom–in this case, the freedom from public regulation or intervention–to condemn oppressed people to further oppression. Whereas resilience discourse might seem like a kinder, gentler variation on demonization as compared to its neoreactionary analog, in some ways it’s actually worse: both neoliberal and neoreactionary practices of demonization want you to suffer, but resilience discourse then makes you work on and through that suffering to transform it into some sort of property or profit. The contemporary hard right definitely wants lots of people to suffer severely, but neoliberal resilience discourse demands that we also recycle that suffering into profits enjoyed primarily by others.
Neocons and neoreactionaries, on the other hand, are interested in maximizing and expanding the third group, the demonized group. Whereas neoliberals are primarily interested in private property extraction and accumulation, neocons and neoreactionaries are primarily interested in whiteness and the white patriarchal family structure–different inflections on the same underlying thing, basically. For example, both resilience discourse and neoreactionary demonization disproportionately target anyone who isn’t a cis man; I talked about this extensively in Resilience & Melancholy, so no need to recap that discussion here. With respect to neoconservative demonizations, Kotsko incisively observes that the Tea Party’s first demons were women:
The Tea Party’s moral discourse as also a gendered discourse…The Tea Party movement represented an attempt to reassert the proper order of the household, in order to solve a moral crisis of which the economic crisis was only a symptom. The initial focus was on race and gender, but once their power solidified in individual states, they moved on to sexual norms in the bizarre controversy over transgender bathroom access” (105).
Like the OG neoliberals, who blamed the 70s crisis in inflation on single mothers receiving government assistance, the Tea Party framed an economic crisis as a moral crisis about the white patriarchal family. Whereas resilience discourse relies on private individual responsibility, neoconservative demonization relies on private family responsibility, and to do that, it has to criminalize all forms of existence that don’t fit into that box, lest they actually manage to resiliently overcome their individual obstacles.
Here’s the key takeaway: though it is tempting to see the increasing criminalization of LGBTQ+ people in the early 2020s as a pendulum swing from the previous decade’s post-identity politics, these two phenomena aren’t opposites but complements. The resilience discourse that characterized 2010s post-identity politics is the analog to and other side of 2022’s neo-fascist attempts at eliminating anyone outside the boundaries of the white patriarchal family. Both are rooted in logics of private responsibility designed to rework or reinforce patriarchal racial capitalist distributions of personhood. Resilience discourse emphasizes the private individual, contemporary moral panics about LGBTQ+ people emphasize the private family; both eliminate any reference to a public sphere, a community, or anything outside the private sphere as the locus of whiteness-as-property.