Online pornography in australia: lessons from the first amendment

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Harm Through Presentation – Acts of Subordination

In the preceding sections I have examined how pornography may impose harm in three ways: by allowing abuse of women involved in pornography; by corrupting viewers’ morals; and by causing viewers to abuse women. These are all ‘perlocutionary’ effects of pornography – its causal consequences. Pornography may impose a fourth harm: the harm committed by the mere performance or presentation of the pornographic material, ie, the harm that results simply from the ‘illocutionary’ act of pornographic speech. For example, making a pornographic statement can be likened to other speech-acts such as saying ‘I do’ (an act of marriage),70 ordering someone to ‘drink this poison’ (an act of murder)71 or saying ‘Hispanics need not apply’ (an act of unequal treatment).72 Where the person saying ‘Hispanics need not apply’ has authority to enforce that rule (ie, authority to exclude Hispanics from a particular job), Hispanics are subordinated. Advocates like MacKinnon argue that pornographic images subordinate women in a similar way in and of themselves.73

This argument assumes that pornographers have the requisite authority to direct, through their pornography, the way in which women should be treated or sex should occur in society. If they lack such authority, their pornography cannot, of itself, subordinate women. Sadurski identifies the two elements of authority as ‘a normative ingredient of “legitimacy” and an empirical ingredient of “control”’.74 Although pornographers may influence people’s thinking on sex, they do not have this kind of authority. Even assuming that the relevant audience consists of men and boys who watch pornography for entertainment and to determine what is sexually legitimate,75 it is difficult to imagine that such an audience considers that the producers of pornography have the right to determine what is right and wrong in matters of sex, or that they have the capacity to enforce any such determinations.76 Accordingly, it is difficult to substantiate the harm of actual subordination through the presentation of pornography alone.

Even if pornographers possessed the requisite authority, the assumption that pornographic images encourage abuse of women ignores the fact that different people may interpret such images in different ways and from a number of different viewpoints.77 Strossen emphasises that ‘ambiguous and positive interpretations apply to the full range of sexual speech, including violent imagery and imagery that might well be labelled “subordinating” or “degrading”, such as rape scenes and scenes dramatizing the so-called rape myth – namely, that women want to be raped’.78 Women may fantasise about rape because this avoids any feelings of guilt that might otherwise be associated with the sex involved,79 or to add change to their experience when real change in their life may be impossible or unwanted.80 The key is that in the fantasy the fantasiser is in control. Actual rape – unwanted sex – plays no part.81

Minimising the Harm

In May 2000, the General Assembly of the United Nations adopted two optional protocols to the Convention on the Rights of the Child, reflecting the universal desire to protect children.82 These protocols requires states that are parties to criminalise, inter alia, the offering, delivering or accepting of a child for the purposes of sexual exploitation, prostitution or pornography. The particular status of children requires that they be protected from pornography, not necessarily through banning the production of pornography or the sale of pornographic materials, but certainly through criminal laws preventing the abuse of children. Pornographic material may often provide evidence of such abuse. However, Strossen argues that women are distinguishable from children in this context because they can give real consent to perform in or produce pornography, and in many cases they do.83 Where other illegal activity (such as rape or murder) is associated with pornography, certainly that activity should be forcefully prosecuted under applicable laws. However, the mere existence of such activity in the pornography industry cannot justify the imposition of censorship in place of vigorous enforcement of existing criminal laws.

Ironically, a crucial argument against prohibition of pornography is that the best way to counter ‘bad’ speech is with more speech.84 Thus, speaking out against pornography (as Dworkin does so powerfully) may be a more effective means of limiting its popularity and increasing consumer awareness than simply banning it.85 It is true that many marginalised people may be unable to speak out,86 for example because of poverty, race or poor education. For them, the freedom to speak holds little comfort. Restricting the speech of others may thus be justified on the basis that it will provide further opportunities for members of minorities or marginalised groups to speak.87 Specifically, MacKinnon maintains that pornography silences women – not only those participating in pornography88 but all women:89 ‘[t]here is a connection between the silence enforced on women … and the noise of pornography that surrounds us’.90 She is particularly concerned about the silencing effect of pornography on speech against sexual abuse.91 Yet it is arguable that victims of sexual abuse are more likely to be reluctant to speak out because their abusers have threatened them with retaliation or because of their feelings of shame and fear of being disbelieved than because of pornography. Their abusers might use or refer to pornography in abusing them, but pornography is more likely to play an incidental role rather than to constitute the root of the abuse or the aftermath of silence. This suggests that prohibiting pornography will not necessarily enable victims of sexual abuse to speak freely.

Prohibiting pornography is a protective measure which casts women in the role of victims in need of such protection and unable to fight back or protect themselves. In addition, a ban on pornography, far from preventing subordination of women throughout society, is likely to drive pornography underground in all its forms. Pornography will still exist, and any associated negative effects will continue. Moreover, the women involved may suffer even greater harms. Without pornographic films being legally available in public, officials will not easily witness or scrutinize what happens on the screen, whether for the purposes of classification or otherwise. The police will find it harder to locate and monitor producers of pornography, and the state will be unable to regulate the working conditions of women involved.92 The demand for pornography will remain, and may even increase.93 Dworkin herself, while condemning pornography, recognises the importance of pornography being exposed and dealt with in the open:

If pornography is hidden, it is still accessible to men as a male right of access to women; its injuries to the status of women are safe and secure in those hidden rooms, behind those opaque covers; the abuses of women are sustained as a private right supported by public policy.94

Strossen points out that a law prohibiting pornography is also likely to be disproportionately used against the expression of disempowered people with minority interests, such as homosexuals and feminists.95 Thus, history shows that censorship has been used to prevent the spread of information about birth control,96 safe sex97 and abortion.98 The First Amendment has allowed disabled people, homosexuals and women to learn about and celebrate their sexuality.99 Not all pornography will consist of such ‘good speech’. However, as suggested above, where pornography incorporates extremes of behaviour that seem to go beyond the value of freedom of speech, I believe the key to successful regulation lies not in restricting the pornography itself but in vigorously enforcing other criminal laws that may be broken in its production or sale.

Pornography on the Internet

  1. Zoning Technology

Pornography raises essentially the same concerns and interests in any medium. However, the Internet has a number of unusual features that affect the regulation of online pornography. The technology of the Internet is constantly and rapidly developing, and well targeted regulation clearly has the potential to succeed in restricting access by particular classes of people to particular Internet sites. This could be done, for example, by requiring first time users to ‘adult’ sites to pay a fee by credit card to ensure that they are adults, and thereafter to access the sites using a password.100 While such a system would contain some flaws (for example, where children learn their parents’ passwords), on the whole it would be more accurate in differentially restricting children’s access to Internet pornography than, say, channelling adult television broadcasts into late night timeslots is in restricting children’s access to television pornography. In the latter case, the regulation may be at once too narrow and too broad. That is, some children will stay up to watch the broadcasts, while some adults will be unable or unwilling to do so such that their viewing choices are effectively restricted. The Internet offers the potential to overcome some of these problems.

Lawrence Lessig compares this kind of ‘zoning’ in cyberspace to that which occurs in real space. Like anything else, pornography is subject to zoning in real space by a combination of laws and regulations, contractual relationships, and social norms and rules. Thus, pornography is sold only in certain outlets and in certain areas, and typically only to people above a certain age.101 If technologies are implemented to restrict children’s access to pornography on the Internet, the zoning in real space will be imitated in cyberspace, only it will be even more precise.102 Taken at face value, this form of transplanting real space zoning into cyberspace may seem innocent. As Lessig puts it, ‘if zoning is a perfectly permissible activity in real space, what possible argument would there be that this zoning is impermissible in cyberspace?’.103 Lessig recognizes that the answer may depend less on whether we are satisfied with the way zoning operates to restrict access to pornography in real space than on whether we are prepared to sacrifice the opportunities the Internet has to offer on a broader scale, without knowing the full extent of those opportunities, in order to replicate the zoning we have created in real space. If we are not prepared to sacrifice those opportunities, there is every reason to resist zoning in cyberspace.

Open Forum

While the Internet may enable near perfect regulation, it also potentially enables regulation-free communication and interaction. This is another feature that distinguishes it from real space. A person can relatively easily gain access to the Internet, whether to view material already there or establish a new site.104 Once accessed, individual users and content providers have a significant degree of control over what they see and what they provide for others to see.105 Originally at least, according to Lessig,

cyberspace was a place where this ideal of zoning was rejected. Here was one place where borders were not to be boundaries; access was to be open and free; people could enter and engage without revealing who they were; massive search engines would collect, in the most democratic way possible, everything that cyberspace had to offer.106

Lessig’s reference to borders is interesting. If the Internet can be used to replicate zoning in real space by restricting access to pornography, arguably it could also be used to replicate national and geographic borders. Some commentators contend that regulation of the Internet in this manner is impossible because of its nature and technological limitations.107 However, because we write the code that is the architecture of the Internet, the borderless world of the Internet could theoretically become a segregated one in which citizens of one country could only access sites hosted in their own country. The segregation could even extend to e-mail. From a censorship perspective, this is another example of a sweeping and (too) easy solution for regulators. In Australia, for example, an international effort to nationalise the Internet would eliminate the difficulties of restricting access to X-rated material when so much of it is hosted offshore.108 It would minimise the difficulties of enforcing laws against persons outside the jurisdiction. However, at the same time, it would involve throwing away the benefits of unrestricted international e-commerce and electronic communication, and curbing the development of the Internet and related technologies.

Zoning, at least as created by social norms, may be inevitable to some extent even on the Internet. Thus, users that do not comply with ‘netiquette’ (for example, by sending unsolicited advertisements) may be sanctioned through electronic letter bombs.109 Nevertheless, the relatively low costs and ease of access, and the absence of bottlenecks or monopoly power on the Internet make it a unique forum for communicating with an enormous audience simultaneously. Further, even though limited zoning does exist on the Internet, this does not change the fact that it is much easier to look at pornography in the comfort and privacy of one’s own home than to go to an X-rated cinema. The Internet pornography consumer avoids even the social anxiety that may arise when hiring a pornographic video or buying a pornographic magazine. Indeed, this is one of the fears of pro-censorship advocates. The freedom of the Internet means pornography is around every corner, ‘just a click away’.

Just how much pornography is there on the Internet? Critics have widely discredited a major study into Internet usage,110 and little other research is available to establish the degree to which pornography has proliferated on the Internet. Moreover, the Internet is constantly growing and changing, so that any such research is likely to become rapidly out of date. This makes it difficult to measure with precision the amount of pornography on the Internet at any given time, but common experience suggests that pornography is readily available online, whether you want to see it or not.

Non-assaultive Nature?

Some judges and commentators have suggested that the Internet is not as ‘assaultive’ as broadcast media. Since one has to navigate deliberately by clicking through the Internet and giving passwords as required, it has been suggested that it is very unlikely that an unwanted pornographic image or file would appear on screen unbidden.111 In contrast, one might turn on the radio or television and be surprised by a graphic display of offensive words or pictures before having a chance to change the channel or decide not to watch or listen.112

This seems a rather dubious distinction. A cursory look at several websites demonstrates just how assaultive the Internet may be. First, not all pornographic sites require a password to enter, and those that do often include a ‘free tour’, accessible by anyone who clicks in the right place, accidentally or otherwise. Secondly, where an initial screen requests a password before entry, there will often be vivid pornographic images on the initial screen to entice the user to continue. Thirdly, it is not true that Internet users only reach pornographic sites intentionally. Users may come across pornographic sites unexpectedly when doing Internet searches, or when typing seemingly innocent addresses. Finally, these sites have developed an alarming use of technology and strategy to obtain ‘hits’ (presumably to raise advertising revenue and sale value) and encourage new memberships. Often, clicking the ‘Back’ button on your browser will take you not to the last screen you were looking at, but to other pornographic sites, and closing the pornographic window will take you to still more such sites. Thus, the characterisation of the Internet as ‘non-assaultive’ may ultimately prove an inappropriate basis for regulating the Internet any more or less strictly than broadcast media.
The United States’ Approach to Pornography

  1. Regulating Indecent Speech Generally

In the US, the First Amendment protects indecent speech as described in Federal Communications Commission v Pacifica Foundation (‘Pacifica’).113 However, according to the test set out in Sable Communications of California, Inc v Federal Communications Commission (‘Sable’),114 the state may nevertheless regulate indecent speech, based on its content, in order to promote a compelling state interest, provided that the regulation is ‘narrowly tailored’ to that interest. In other words, the least restrictive means of regulation must be used. For example, the Supreme Court has held unconstitutional a statutory provision that effectively required certain cable television operators to ‘channel’ their material into the hours between 10pm and 6am.115 The provision applied only to channels primarily dedicated to sexually-oriented programming, and was aimed at preventing children from viewing these channels, without the knowledge or permission of their parents, as a result of ‘signal bleed’. Signal bleed occurs where images from unordered channels flash onto other channels – the images often appear only for a moment and are difficult to make out. According to the Court, a less restrictive means of protecting children from viewing such material would have been to require the cable operator to fully block any channel on request by a household that did not wish to receive that channel.

US courts have tended to draw a distinction between different types of media in determining indecency cases, so that the Sable test does not always apply. Radio and television broadcasting are typically regarded as less deserving of First Amendment protection than other media, such as newspapers, cable television and film.116 Courts are therefore more likely to uphold regulations governing the time and manner in which indecent programming may be aired on broadcast radio or television, for example, by requiring channelling of indecent programs into late hours of the night.117 This distinction is largely attributable to the perceived ‘assaultive’ nature of broadcast radio and television. Broadcast media ‘have established a uniquely pervasive presence in the lives of all Americans’ and confront individuals not only in public but also at home.118 In addition, as mentioned above, because one does not necessarily know what is on before turning on the television or radio, there is a risk that viewers or listeners will be unwillingly exposed to offensive material. It is no answer that the viewer can change the channel or turn the television off, as this does not help if the exposure has already occurred – the damage is done.119 Nor are introductory warnings about the content of a program always effective, since one may turn on in the middle of the program without having heard or seen the warning.120

US courts typically view indecent material distributed via the broadcast media as particularly threatening to children, since even those too young to read can access such media. Thus, the Supreme Court has held that the Miller definition of obscenity is broader where children are involved, and the state has more leeway in regulating speech in this context.121 In Pacifica, the complainant was in fact a father who was unhappy at having unwittingly exposed his young son to a radio broadcast of ‘Filthy Words’ while driving in his car.122 In that case, the Supreme Court upheld the Federal Communications Commission’s declaratory order granting a complaint against the radio station.
The Communications Decency Act

In 1996, the US Congress created two criminal offences related to Internet content under the Communications Decency Act (‘CDA’).123 The CDA provided that it was an offence to:

  1. initiate the transmission of an obscene or indecent communication by means of a telecommunications device, knowing that the recipient is under 18 years of age;124 or

  2. use an interactive computer service to send or display to a person under 18 years of age a communication that describes sexual or excretory activities or organs in terms that are patently offensive as measured by contemporary community standards.125

The words ‘indecent’ and ‘patently offensive’ as used in the CDA were not defined. Two defences were available: taking reasonable, effective and appropriate action in good faith to restrict access by minors, and restricting access by means of an ‘adult verification mechanism’, such as requiring a credit card before entering an Internet site.126 In a 1997 case, Janet Reno, Attorney General of the United States v American Civil Liberties Union (‘Reno No 1’),127 the Supreme Court held that the CDA infringed the First Amendment right to free speech. The Court distinguished the Internet from broadcast media on three main bases:

    1. The US has a history of extensive government regulation of broadcasting, which is not matched in relation to the Internet.128 This reasoning seems strikingly circular, and rather irrelevant. There does not appear to be any meaningful or significant conclusion to be drawn from a comparison between the short history of the Internet and the much longer history of broadcasting.

    2. The Internet is not as ‘invasive’ as broadcasting, and a user is unlikely to access sexually explicit material by accident.129 For practical reasons described in Part V(C) above, this is not necessarily true, perhaps because of changes to the Internet since the case was decided. Therefore this also seems a rather weak basis for distinguishing between the treatment of broadcasting and the Internet.

    3. Broadcasting frequencies are scarce (or were originally), whereas access to the Internet is relatively unlimited and cheap.130 This third distinction provides the most persuasive reason for giving greater First Amendment protection to the Internet than broadcasting. As discussed in Part V(B) above, the Internet provides a unique open forum for discussion, which should not be so quickly or strictly regulated such that it becomes indistinguishable from other media.

Since the Court distinguished the Internet from broadcast media, it applied the narrow Sable test in evaluating the CDA,131 and held that the provisions were not narrowly tailored enough to withstand the constitutional challenge. Although there was a compelling state interest in protecting minors, the provisions were simply too broad. Other, less restrictive, means of preventing indecent communications to minors could include requiring that indecent material be ‘tagged’ to enable better parental control of material accessed, and incorporating exceptions for material with artistic or educational value.132 The Court also held that the terms ‘patently offensive’ and ‘indecent’ were unconstitutionally vague, even though the former was based in part on the description of indecency in Pacifica.133 This vagueness threatened speech that fell outside the statute’s scope,134 for example, discussions about birth control practices, homosexuality, or the consequences of prison rape.135 Finally, the Court found that the defences were inadequate to render the provisions valid. Implementing a credit card verification system would be too costly, especially for non-commercial sites, and in any case would mean adults without credit cards would be denied access.136 The cost of implementing a password system as a method of age verification would also be prohibitive for non-commercial sites.137

Interestingly, the Court noted the difficulty in applying a ‘community standards’ test (as found in s 223(d)(1) of the CDA, as well as in the Miller definition of obscenity)138 to the Internet. Numerous ‘communities’ can be identified on the Internet, but it is difficult to determine which community’s standards to apply. This is because the person uploading material onto the Internet may belong to one real space community, while users in countless other real space communities may download the material, and another online community may discuss the material.139 The Court stated that application of the community standards test would mean that ‘any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message’.140 This would restrict the type of material that an individual could access and limit that person’s autonomy in choosing what material to view and what to ignore. It would also mean that the progression of ideas would be stunted by the views of the least open-minded members of society.

Congress’ attempt to regulate online pornography in the CDA essentially failed because in attempting to limit access by minors to indecent material on the Internet, it effectively limited adult access to such material as well. The constitutional problem with the CDA was not that it attempted to limit such access by minors (although the Court did not determine whether a blanket prohibition on indecent or patently offensive communications to minors would be constitutional).141 An alternative form of regulation relying more closely on the technological potential of the Internet would be for Congress to require Internet pornography providers to implement (and even develop) a device to discriminate between different kinds of Internet content, just as the V-chip discriminates between television content. If all Internet sites were rated according to their content, the so-called ‘C-chip’ could restrict access to sites with particular ratings. The user could even choose from a number of rating systems, which would then be automatically enforced by the C-chip. Lessig predicts, with some trepidation, that the Supreme Court would uphold such a statutorily mandated system as constitutional.142

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