Almost all countries have some form of obscenity law, some regulation of sexually explicit material. This indicates that there is a strong body of feeling either that certain material should not be permitted by society, or that its availability should be restricted. The stance taken on obscenity law depends to a large extent on the interpretation of the harm principle. All sides to the debate, liberal and otherwise, would agree that people should have maximum freedom to do as they please as long as the rights of others, or of society generally, are not adversely affected.
The disagreement is over when it can be said that these rights have been so affected. A liberal might contend that one of the prices to be paid for a free democracy is that one may, from time to time, be exposed to some speech or other expression which one finds offensive, even deeply so. Eloquently espoused by John Stuart Mill17, this argument goes that if the state removes controls on speech and allows a free market of ideas, that truthful, good ideas will prevail over bad or ill-founded ones.
Because nobody is in a position to predict the direction of future development of the human race, nobody is a position to censor the expression of ideas. Mill could scarcely have imagined a free market of ideas on the scale of the internet, and this school of thought would have it that the law should allow completely free speech and expression of all kinds, except where this has a direct consequential effect on the rights of another.
Thus to hold a demonstration for any political or other cause would be allowed, but to hold it in the front garden of a member of the public who had not consented to this would not. The counter to this would be that there are some harms which may be slightly less obvious than the demonstration in the front garden, but which nonetheless necessitate legal intervention. There are several lines of argument to support this view. Laws to counter these harms would have one or more of three basic objectives: to suppress such material, to restrict its circulation or to regulate its contents.
These ends can be achieved through proactive or reactive measures, or a combination of both. What lies behind such widespread restrictions must be a commonly held feeling that some material is either not fit for the public domain or not fit for society at all. These beliefs were vigorously held at the end of the nineteenth century, and at that time, in Britain and elsewhere, there was a far lower level of tolerance for sexual expression and explicitness than there is today.
The laws at this time, when, among other factors, the influence of the church was much stronger, assumed that pornography was inherently wrong, was the preserve of those not of sound mind and moral fibre, and that it was to be suppressed by society. An analogous approach underpins the censorship system in the Republic of Ireland, which extends not only over what is indecent or obscene, but also covers material which encourages abortion or miscarriage or focuses unduly on crime.
The fundamental presumption in any democratic society must be freedom of expression and this is certainly the case in the countries whose obscenity laws I considered, guaranteed either by domestic law or international agreement. One of the downfalls of the current system is the huge difficulty in attempting to reconcile the demands of a pluralist liberal democracy with an antiquated and paternalistic concept of the law. Excessive state control of expression would render impossible the ideal of a democratic society.
This guarantee should not extend only to political speech, or for communication of great literary ideas, but to all speech; the presumption should always be for freedom of expression and only where clear reasons to restrict expression exist should it be qualified. This will show through in my ideas for a reformed law of obscenity, and is a fundamentally different approach from that adopted in case law in the U. S. A. , where first amendment free speech does not extend to obscene material because it is not seen as communicating ideas18.
I would argue that it is not for the courts to decide what merits free expression and what does not, or where the doctrine applies and where it does not, for that is no freedom of expression at all. This is not, however, an infallible presumption: freedom of expression is one of a catalogue of civil rights and may legitimately be restricted in so far as it impinges upon those other rights. There are a variety of reasons that people are opposed to pornography.
One form of communitarian view would be that society has some list of core values which are offended by pornography, and, by undermining these core values, the bonds which hold society together are undermined19. Another, less extreme point would be that the religious and moral sensibilities of members of society are offended by pornography and this is to be borne in mind when considering obscenity law. It may be argued that presenting people with forms of behaviour which, if imitated, could be socially harmful, for example combining sex with violence, makes those watching more likely to carry out those actions.
This, if proven, would certainly constitute a harm, and justify a ban on material which had this effect. Because of the nature of the topic however, studies have been ambivalent, contradictory and inconclusive, and there exists no concrete evidence either to prove or disprove such a claim. Some, including the Report of the Williams Committee20, have argued that because of the seriousness of the consequences of such behaviour, which could include sexual attacks, it was right to exercise caution and ban the material anyway.
This does not seem to constitute a concrete basis for a restriction on freedom of speech, nor a rational basis for legal intervention. By way of analogy, nobody can say with certainty that the glorification of gangster life has no effect upon crime figures and yet films are constantly released into high street cinemas which do precisely that. A point advanced by many feminists is that women are portrayed in pornography as subordinate to men, creatures for the sexual gratification of males and with no other purpose.
This, it has been argued by some feminists and others, is one of the factors that re-enforces the inferior position of women in society today21. Women are, it is contended, paid less than men, are subject to sexual attacks and are generally not treated on an equal basis. Among factors cited for this social climate are the attitudes created and maintained by pornography. It is true that some pornography does portray women as subservient to men, but this is neither pre-requisite nor universally true.
Much of what lies behind the above arguments is sociological, subjective or based on moral opposition to pornography. While there is truth in what is said and there may be reasons to choose not to consume pornography, in my view they do not constitute valid reasons for the intervention of the law. Such an extreme measure should be reserved for more dispassionate arguments based on actual harms, as set out below. Some limits to freedom of expression in the context of obscenity can be derived from the general law.
Where production of material involves the infringement of the rights of the participants, it is the right and indeed duty of the law to intervene, not just to restrict the material, but to suppress it. This seems, in one form or another, to be a widely held trait of national obscenity laws in pursuit of the protection of minors. It is a well established principle of British and most other legal systems that there should be an age of sexual consent, and that sex below that age is wrong.
It is clear that there exists a demand for material involving or depicting girls under the age of sixteen and, in light of the huge sums of money which stand to be made from the trade in pornography, both legally and otherwise, there will be a supply22. The law must therefore step in against what is effectively, regardless of any purported consent, exploitation of children. Even where the participants are all above the age of sexual consent, there may still be a role for the law.
Under British law consent is not a defence to an assault charge: in effect there are some acts that simply cannot be consented to23. Material that involves or depicts infliction of real and substantial injury upon the participants is the legitimate target of the law. It should be noted that the inclusion or depiction of an illegal act will not necessarily render the material illegal, as extrapolation of this would lead to absurd results. Only illegal acts where a substantial and real harm is caused to a person are to be suppressed.
Delineation of whether certain injuries meet the test of substantial would be left to the courts, but it would certainly require more than trivial physical injury. It must also be noticed that these restrictions are not on the basis of taste and decency or moral opinion, they are objective applications of established legal principles. No sufficiently rational and convincing reasons exist to legislate against material that does not fall foul of these criteria, however abhorrent to some or most of the population.
So, for example, material depicting bondage or torture which did not appear to be, and could not be shown to be, simulated, and in which it appeared serious injuries were inflicted, would be illegal in any circumstances. Material involving faeces would probably not merit suppression. As well as these direct breaches of the rights of particular individuals, there must exist a general, societal right to choose to avoid sexually explicit material. It would, after all, be a warped concept of freedom that would forcibly expose people to such material against their will.
People should, as far as possible, be allowed to go about their daily lives without being confronted with such material if this is their wish, and despite the gradual loosening of attitudes towards sex, there remains a significant proportion of the population for whom this is the case. Their objections may stem from taste, morals, religion or some other source, but they undoubtedly have rights that must be respected, whether this is framed as a right to privacy, or a right not to be affronted or offended, or in some other terms.
Here, the tool of choice is not suppression but restriction. It is not contended that the very existence of this class of material is harmful to society, although there are many who would claim that it is, but that it should be restricted to those adults who desire and take steps to procure it. The steps which would be necessary to access this restricted material should be no more stringent than is necessary to remove the material from the lives of those who do not wish to see it, or are classed by the law as too young to see it.