ONLINE PORNOGRAPHY IN AUSTRALIA:
LESSONS FROM THE FIRST AMENDMENT
Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.1
Censorship of online pornography raises extremely complex and contentious issues of morality and the role of government – there is no definitive answer about the wisdom of such censorship. Nor is there any definitive ‘feminist’ perspective on online pornography, or pornography more generally. In fact, two feminist camps,2 led by Nadine Strossen defending pornography on the one hand,3 and Catharine MacKinnon and Andrea Dworkin vehemently opposing it on the other,4 have forcefully disputed the impact of pornography and its censorship on women’s rights. The dearth of reliable evidence about the prevalence and effects of pornography exacerbates the difficulties in resolving this dispute.
In Australia, while the Australian Constitution affords limited rights of speech and communication,5 it contains no express guarantee of free speech equivalent to the First Amendment to the Constitution of the United States of America (‘US Constitution’) to protect the chaos of the Internet. This may make it harder to define the values of Australian society and the interests to be balanced in dealing with online pornography.
The Federal Government has enacted restrictive legislation in an attempt to limit access to online pornography by Australians in the form of the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) (‘Online Services Act’). Rather than focusing on the technical operation or workability of the legislation, this article examines the rationales for freedom of speech and censorship as a basis for assessing the Australian approach. At the outset (in Part II), I outline a workable definition of pornography. I then go on to consider freedom of speech in Part III and the underlying reasons for accepting this as an important value. Against this background, I then examine the specific conflict between pornography and freedom of speech, with particular emphasis on the potential harms associated with pornography (in Part IV), pornography on the Internet (in Part V), and the treatment of the conflict by US courts (in Part VI). In the concluding section I consider Australia’s recognition of rights such as the freedom of speech and briefly evaluate the Australian legislation in the context of that recognition.
It is extremely difficult to define pornography with precision in the abstract. Many proposed definitions use ambiguous terms and rely on subjective determinations.6 The Supreme Court of the United States of America (‘US’) has drawn a distinction between ‘obscene’ speech, which is unprotected by the First Amendment to the US Constitution (and can therefore be prohibited based on its content), and merely ‘indecent’ speech, which is protected. In Miller v California (‘Miller’),7 the Court held that obscene speech arises where a work:
taken as a whole, and judged by the average person, applying contemporary community standards,8 appeals to the prurient interest in sex;
portrays sexual conduct in a patently offensive way; and
taken as a whole, does not have serious literary, artistic, political, or scientific value.
In contrast to obscene speech, indecent speech ‘merely refers to non-conformance with accepted standards of morality’.9 Indecent speech may include patently offensive words dealing with sex or excretion, which may have serious literary, artistic, political, or scientific value.10 Prurient appeal is not necessarily an element of indecent speech.11
Various people have challenged the distinction between obscene and indecent speech and proposed alternative definitions. Dworkin notes that ‘prurient’ means burning, sexually arousing, and (empirically) causing erection.12 It is thus defined by a male physiological response. MacKinnon criticises the definition of obscenity on several levels. She queries why the work should be taken as a whole and why its value needs to be considered at all if a woman is being subordinated:13
Obscenity, in this light, is a moral idea; an idea about judgements of good and bad. Pornography, by contrast, is a political practice, a practice of power and powerlessness. Obscenity is ideational and abstract; pornography is concrete and substantive.14
In mid-1980, MacKinnon and Dworkin developed an ordinance intended to provide women with civil rights against producers of pornography where the women could show that they suffered harm because of it.15 The ordinance recognised harms including assault due to pornography and subordination of women through trafficking in pornography.16 Although the Minneapolis City Council passed the ordinance, the Mayor of Minneapolis twice vetoed the ordinance. It later passed into law in Indianapolis, but the US Federal Court of Appeal struck it down.17
The ordinance uses the term ‘pornography’, which is defined as ‘the graphic sexually explicit subordination of women through pictures and/or words that also includes’ one or more specified factors, such as women being presented as dehumanised sexual objects, enjoying pain or rape, cut up or mutilated, or in positions of sexual submission, servility, or display.18 The definition extends to the use of men, children or transsexuals in the same way.19
Strossen, the President of the American Civil Liberties Union, suggests that the ‘MacDworkinites’ deliberately use the term ‘pornography’ because of its pejorative connotations.20 She, too, criticises the Supreme Court’s definition of ‘obscenity’ because of its ambiguity and subjectivity,21 but prefers the terms ‘sexually explicit’ and ‘sexually oriented’ speech.22
In this article, I use the term ‘pornography’ not to capitalise on its negative connotations but because it is a term that most individuals understand. Although this term is difficult to define,23 most people have their own views as to what it means. In judicial terms, this may not be a particularly helpful formulation, but for the purpose of understanding the arguments on both sides of the pornography/free speech debate, it serves well enough. Pornography is generally intended to sexually arouse and may in fact do so, depending on the audience. It often includes full or partial nudity, but nudity alone is neither necessary nor sufficient to create pornography. It also typically includes a depiction or suggestion of sexual activity, but interpretation of this differs depending on the audience. I have focused on this type of material precisely because it is hard to defend. There is a much easier case for defending sex education or nude sculptures. At the same time, my description is weighted towards neither the most innocent material (as Strossen’s references to sexually explicit speech often are) nor the most violent and vile material (as the MacKinnon-Dworkin definition of pornography is). It is likely to encompass obscene speech as well as much indecent speech as defined by the US Supreme Court.
Pursuing Freedom of Speech
Formal Recognition of the Freedom
Freedom of speech has long been a cherished human value, and several different nations, regions and international conventions recognise it as an individual right that deserves and requires protection. Perhaps the most well known protection given to freedom of speech is in the First Amendment to the US Constitution, which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Canadian Charter of Rights and Freedoms also specifically protects freedom of speech. The relevant sections came into force in 1982. Section 2 provides that:
Everyone has the following fundamental freedoms: …
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
Unlike the First Amendment, which contains no express limitation on freedom of speech, the Canadian protection is subject to the overarching limitation in s 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
At an international level, art 19 of the International Covenant on Civil and Political Rights (‘ICCPR’)24 protects freedom of speech in the following terms:
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article [may] be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
In addition to the restrictions on the right of free speech contained in art 19(3) of the ICCPR, art 20 contains express prohibitions on certain types of speech: ‘propaganda for war’, and what would ordinarily be termed ‘hate speech’ (for example, advocacy of racial hatred that constitutes incitement to violence). Article 20 is somewhat ambiguous, and it is unclear whether it is intended to prohibit hate speech in the absence of violence.25 It is also the subject of a reservation by the US, since it requires prohibition of at least some material that would otherwise be protected by the First Amendment.26
Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms27 protects freedom of expression in a manner broadly similar to that of the ICCPR, although it specifically states that this is not to ‘prevent States from requiring the licensing of broadcasting, television or cinema enterprises’. The European protection is also subject to a greater number of conditions than is art 19 of the ICCPR. Under art 10, the exercise of freedom of expression may be subject to prohibitions ‘as are prescribed by law and are necessary in a democratic society’ in the interests of a range of factors, including for the prevention of disorder or crime, or for the protection of health or morals.
Foundations of the Freedom
The right to freedom of speech may be based on several different principles. The following is a non-exhaustive list of some of the most commonly cited goals or justifications of the right.28
Advancement of Knowledge and Discovery of Truth
This is John Stuart Mill’s argument – that free speech is required to enable the ascertainment of truth and advancement of knowledge.29 This is also known as the ‘marketplace of ideas’ rationale, since it suggests that in a free market the exchange of ideas will enable the truth to be established.30 Thus the more viewpoints expressed, the better.31 Baker suggests that this theory dominates US Supreme Court discussions of free speech.32 However, free speech does not always produce truth, and protecting Nazi messages or pornography demands some justification other than truth discovery. Similarly, by itself, this justification does not explain why statements of mere opinion that are neither true nor false should be protected.33
Effective Participation in Decision-making by All Members of Society
This is the goal of democracy, typically aligned with Alexander Meiklejohn.34 If democracy is to work properly, all members of society must have access to all relevant information. Information that concerns public affairs or the political process therefore deserves particular protection. The core of this goal is democratic rather than libertarian, and social rather than individualistic.35 The link between democracy and freedom of speech is somewhat paradoxical. If the members of a society, acting democratically and with proper information, decide to prohibit or restrict particular kinds of speech, the goal of democracy alone cannot explain why this should not be allowed.36 Few would suggest that pornography is political in the sense that denial of the right to make, distribute or view pornography will infringe one’s ability to participate in the democratic process.37 This principle therefore does little to show why pornography should be unregulated.
Individual Autonomy and Self-fulfilment
This goal points to the value of speech, not in bringing about particular results (eg, by advocating a certain change in the law which results in that change being implemented), but in the act of speech itself. Through speech, we communicate to others aspects of ourselves, define better who we are, and are better able to achieve self-fulfilment.38 If our speech is suppressed, we are unable to exercise full autonomy. This goal also focuses on the autonomy of the listener. If we restrict the listener’s access to certain viewpoints, on the ground that they may harm the listener, we infringe the listener’s autonomy.39 The principle of moral autonomy is probably the most relevant and convincing reason for freedom in the context of pornography. Although different types and examples of speech clearly have different values, the importance of individual autonomy lies in deciding or choosing the hierarchy of values to assign to speech, rather than having that hierarchy determined by the government.
Balance Between Stability and Change
If a society restricts speech, or particular kinds of speech , it is more likely to suppress ideas of a radical or progressive nature than conventional or conservative ideas, thereby hindering its own development. In the context of pornography, it is quite clear that a majority of people at one time may consider as deeply offensive or immoral material that is later widely regarded as perfectly innocent.40 Similarly, the sensibilities of people of one country may be far more easily affected than those of another country. It is because of the progression of ideas that novels such as James Joyce’s Ulysses were once highly controversial and liable to be banned in the American ‘crusades’ led by the likes of Anthony Comstock,41 but are now mandatory texts in literature courses. Equally, while the Beatles singing ‘I get high with a little help from my friends’ causes little consternation today, censors have new targets in graphic songs about cop killing, non-consensual sex and anarchic violence.42
Moving away from the perspective of the speaker, freedom of speech is important because of its effect on the audience. If an audience is exposed to a range of different ideas expressed by different people, the community as a whole is more likely to develop a character of tolerance.43 Again, it is difficult to explain this rationale in the context of Nazi hate speech. Protecting a neo-Nazi march in Skokie, Illinois could hardly be justified on the basis that it will promote tolerance among Jews.44 On the other hand, tolerance is an important value when it comes to pornography. Much sexual conduct that would once have been deemed abnormal or deviant is now frequently accepted (although some communities have progressed further in this regard than others), demonstrating the need to think critically about the absolutism of what is right and good in any given time and place. Tolerance is therefore a relevant concern, but obviously not a sufficient justification on its own for allowing pornography to go unregulated.
Pornography and Harm
According to the ‘harm principle’, an individual’s freedom of speech (or indeed any other individual freedom or right) may be restricted only to the extent that its exercise would harm others.45 Put another way, ‘the government should not interfere with communication that has no potential for harm’.46 Pornography has the potential to harm various members of society in different ways, as discussed in the following section.
A key argument for censorship of pornography relates to its effects on the participants. Pornography involves more than ‘mere fantasy’ or ‘mere speech’ – it is real.47 For example, pornography is often said to involve acts of prostitution; if prostitution is simply the exchange of money for sex,48 pornography should arguably be regulated in the same manner as prostitution. If this argument is accepted, this suggests that a society that prohibits prostitution, or imposes time, place or manner restrictions on prostitution, should similarly prohibit or restrict pornography. Moreover, various commentators report acts of rape, assault49 and even murder occurring either in front of the camera or behind the scenes because of the typical environment in which pornography is produced.50 The producers, directors and consumers of pornography are largely men, monopolising information and media, with a tendency to characterise women as objects in their pornographic material.51 The harm suffered by children in pornography is of particular concern. Whereas a woman involved in pornography can consent to her involvement, a child, by definition, cannot. This means that ‘[e]very piece of child pornography … is a record of the sexual use/abuse of the children involved’.52 These children are typically poor, and often from third world countries.53 Our revulsion at child sexual abuse relates to the powerlessness of children, and the notion of childhood as an innocent and peaceful time when we are protected from the worst of the world.54
The real-life experiences of women and children involved in pornography constitute both an important motivator for anti-pornography feminists, as well as a significant part of their arguments. These feminists often rely on presenting graphic details of scenarios contained in pornographic materials,55 and of the experiences of women in those materials,56 to get their message across. In contrast, free speech advocates typically steer away from such vivid descriptions. Indeed, Strossen has been criticised for not facing the reality of pornography:
She approaches the pornography issue theoretically, never delving into the realities of pornography or the real injuries it creates. Strossen comments that antipornography feminists often include in their works detailed accounts of pornographic pictures or films, insinuating that this is so because they like pornography and need a reason to view or talk about it. This ludicrous insinuation demonstrates Strossen’s own discomfort with facing pornography.57
It is easy to channel the horror one feels at the experiences of women involved in pornography into a conviction that the state should prohibit pornography in its entirety. No one would dispute that women should not be subjected to physical or sexual abuse, whether from strangers, employers or family members. Yet these things really happen, and not only in the context of pornography or prostitution. Exposing these experiences to the public for the purpose of condemning pornography is akin to showing a jury, in a murder trial, photographs of the victim’s bludgeoned body: the prosecution intends to focus the jury’s minds on the bloody aftermath rather than on how the accused is actually linked to the crime. It is understandable, then, that Strossen chooses not to focus on the sordid details of pornography, while Dworkin constantly restates them, since the two advocates view the role of pornography in producing these outcomes very differently.
Putting to one side the question of child pornography, it is simplistic and paternalistic to suggest that adult women involved in making pornography are invariably forced into the industry (for example, through physical or financial coercion), or that no women enjoy making pornography. Depending on the woman’s individual perspective, she will not necessarily be harmed simply by participation in pornography. Moreover, the more pressing question is not whether women are ever mistreated in society or in pornography (as they undoubtedly are), but whether restricting or prohibiting the production of pornography will prevent or minimise that mistreatment. This question will be further discussed below in Part IV(E) of this article.
Another argument for censorship of pornography is that it harms viewers by corrupting their morals. This argument assumes that there is a singular reference point for morality, and that that reference point condemns pornography now and will continue to do so in the future. Such an assumption ignores the very different values in different parts of society and in different generations, as well as the right of individuals to decide for themselves what is acceptable to them and what they wish to view. If the state censors pornography in order to prevent moral corruption of a willing viewer,58 this departs from the principle that speech should be restricted only to the extent necessary to prevent harm to others.59 Moreover, liberal theory has typically shied away from characterising ‘offence’ as harm,60 positing instead that the law should not protect a person from accidentally viewing pornography to the extent that this would restrict others from deliberately viewing it.
Anti-pornography feminists are less likely today to rely on arguments about harm to ‘voluntary consumers’ and ‘involuntary consumers’ than on the other harms described in this article.61 The only exception to this tendency is in relation to children. Children are seen as needing additional protection because they lack the capacity to make informed decisions about what they are viewing, and because extreme material may ‘corrupt’ them or damage their development. Liberalists may share this concern and agree that regulation is needed to protect children from pornography, provided that protecting children does not require simultaneously protecting adults. The notion of shielding adults from viewing pornography under the guise of protecting children is particularly relevant to the Online Services Act, discussed further below.62
Harm Through Viewers
Pornography may also cause indirect harm, because viewers may be more likely to commit crimes against women after watching it. This may be because they become obsessed with particular pornographic situations they have watched, or simply because they are exposed to a culture of misogyny and the aggressive domination of women through pornography. There are few reliable statistics on the causative effects of pornography on crime. However, while it is difficult to prove a positive, causal relationship, anecdotal and experimental evidence suggests there may be some connection.63
In Dworkin’s view, pornography socialises men to rape – it is the cause of the inequality between men and women.64 Itzin agrees that pornography sexualises violence, legitimates the abuse of women, and educates men in the subordination of women.65 However, she considers that this is only one of a number of factors, such as economic subordination, that contribute to the oppression of women in society.66 MacKinnon similarly highlights the chain of causation between pornographic speech and sexual abuse.67 She refers to pornography ‘making’ rapists unaware of the absence of consent, ‘creating’ a person who sees no difference between violence and sex, and ‘producing’ sex murderers.68
This reasoning tends towards seeing men as predisposed to commit violence and sexual abuse. ‘To see men as naturally programmed for violence is to endorse the most conservative views on human nature, to see it as unchanging and essentially unchangeable.’69 This raises the dangerous proposition that men cannot change their ‘innate’ behaviour towards women any more than they can change their ‘innate’ responses to pornography. This goes against the history of the feminist movement, which has consistently sought to dispel stereotypes about men and women. Furthermore, if coupled with an argument for the prohibition of pornography, this analysis is also somewhat contradictory. If men are predisposed to rape, it is difficult to see why the prohibition of pornography (even if it were completely effective in limiting production of pornography) would prevent rape from occurring. Instead of blaming pornography or pornographers, viewers of pornography should be expected to have both the capacity to analyse the material, and responsibility for their subsequent actions.