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Research Paper:

This paper analizes the term of "Pornography" within the concept of "Freedom of Expression":
Is its prohibition legitimate in relation to its potential harm to women?
mahmut_erdemli
Mahmut ERDEMLI
Judge of Pendik/Istanbul

INTRODUCTION

Pornography once was defined as any image of a nature that it could reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. The natural existence of sexual feelings in human beings manifests itself in various forms. Therefore, it was not surprising that the people created sexually explicit depictions, alongside others, in stone carvings or artefacts as soon as they were able to draw enduring images.

Always controversial, the idea of the right of people to create or obtain sexually explicit materials is founded on different bases. It may be defended on the principle of personal or artistic expression or freedom to choose one’s own sexual lifestyle. For instance, some relevant articles of the Turkish Constitution are as follows. Article 20/1: ‘everyone has the right to demand respect for his or her private ... life. Privacy of an individual ... cannot be violated’. Article 17/1: ‘everyone has the right ... to protect and develop his... spiritual entity’. Article 27/1 ‘everyone has the right to disseminate arts...’.

Given that freedom of expression is not limited to verbal statements and it can be displayed by, for example, gesturing, standing still without speaking, shouting, crying, or painting, the expressive nature of pornographic materials have also been widely accepted. It follows that creating or obtaining pornographic materials (at least most type of them) should be protected under the free speech principles. (FSP)

Despite several bases that can be shown in favour of pornography, the right to obtain or display sexually explicit materials is far from unrestrictive and uncontested. Considering pornography as degradation of and harmful to women, the two leading women who fought against pornography in the United States, the late Andrea Dworkin who was a writer and Catharine A. MacKinnon who is a law professor unsuccessfully tried to pass laws against pornography as a violation of women’s rights.

The significance of whether pornography is a type of speech is the special protection given to FSP in many communities, e.g. Articles 25-26 of the Turkish Constitution, Article 5 of Basic Law for the Federal Republic of Germany, Article 10 of Convention for the Protection of Human Rights and Fundamental Freedoms. The acceptance of the nature of the pornography as a speech requires any limitation of it to have a strong, pressing social need.

This essay will examine the relationship between free speech and pornography with special reference to women’s rights. The legitimacy of creation and distribution of pornography, its alleged harm to women and the limitation on its display will be discussed. The legal bases other than FSP for legitimacy of pornography are excluded from this examination.

EXPRESSIVE OR NON-EXPRESSIVE?

For some, pornography has no value of expression. In Schauer’s view, there is hardly any difference between selling sex toys and selling a body via prostitution, ‘or the sex act itself’.  ‘At its most extreme, hard core pornography is a sex aid, no more and no less’. Mackinnon, claims that in reality, pornography is a way of selling women and children: firstly, the real women or children are hired, secondly, they are used to produce sex materials which are sold to consumers. She asserts that ‘the so-called "speech," the materials themselves, is actually a product of crimes against women and children.’ She further claims that pornography is more act than thought, and that ‘that one can express the idea a practice embodies does not make this practice into an idea.’ One can infer that this approach attempts to reduce pornography purely to conduct with no implicit expression.  However, those arguments cannot be applied persuasively where pornographic materials contain verbal or written statements. Moreover, speech that is protected by law is not limited to written or verbal statement. There are countless other means of expression such as marches, gestures, and silent gatherings; to regard all genres of sexually explicit materials as pure conducts with no implicit opinion seems highly doubtful. Flag burning illustrates this. By five to four vote, in Texas v Johnson case, the Supreme Court of the United States of America (USA) held that

Gregory Lee Johnson's act of burning flag to protest against Reagan administration policies fell under the protection of the First Amendment of the USA Constitution. The court ruled that state officials may not limit the usage of symbols to certain ways.

It has been argued, as a response to anti-pornography campaigners, that sexually explicit materials also have expressive content and must be protected under the FSP. In the Barnes v Glen Theatre case, for example, the Supreme Court ruled that nude ‘dancing was a form of expressive activity’. In its Judgment, the European Court of Human Rights (ECtHR)confirmed that creation, performance, distribution or exhibition of works of art are contributions ‘to the exchange of ideas and opinions.’

It can be inferred from views opposing all types of pornography that this attitude, to some extent, has a religious or political motivation. There is a suspicion that those opposing pornography act from a feeling of dislike towards pornography whilst those supporting it grant their support out of their sympathy towards pornography. Sunstein agrees that a decision on regulating pornography can hardly be entirely neutral as it is inspired by the content of speech and social attitudes. Personal convictions in, say, morality or politics may not be the basis for determining legal issues. In its judgement, in the case of Dudgeon v. United Kingdom, ECtHR confirmed this: that some segments of society may be ’shocked, offended or disturbed’ by a homosexual conduct must not lead to conviction of that act as long as it happens between consenting adults.

It is asserted that pornography is not only a sexual act satisfying the sexual needs of the audience but may also have an artistic value constituting speech and thus must be protected. In fact, if a purely offensive message without political content such as ‘Fuck the draft, stop the war’ is protected under the FSP, excluding from that protection expressive sexual acts which may be skilfully displayed has no strong rational basis. This view is counteracted by stating that a hardcore pornographicmaterial with no verbal exchange displaying the sexual intercourse and the genitals of both sexes has no expressive content or artistic value. This is not speech and may not be protected under the FSP.

For the past fifty years, American Supreme Court has tried to define the type of sexually explicit material to be regulated. In the case of Roth v USA, highlighting that not all kinds of expression are to be protected, the Court ruled that the test of ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest’ is to be applied . The Court reaffirmed the holding of the former case in the Paris adult theatre case where Justice Stewart stated patent offensiveness of the material as one of the criterion. However, this definition, given the terms of “contemporary standards” and “prurient interest”, was subjective, vague and far from neutral. Justice Brennan agreed this view rejecting the idea that this approach provides stability in the regulation of pornography without putting First

Amendment values at risk. Chief Justice Rehnquist, in the Glen Theatre case acknowledged that naked dancing had expressive value. The Court, in the case of Reno v ACLU, while recognizing the necessity to protect pornography under the free speech principle rejected the appropriateness of definitions of patent offensiveness and indecency as a base to curtail pornography..

There is a risk, it is argued, that sexually explicit material with literary value may be sacrificed if the prohibition of pornography is unconditionally allowed. As an example, consider an educational film regarding the regulation of sexual life during the period of pregnancy. The producer may wish to include sexual intercourse with the show of genitals and the act of penetration. Another example might be a pornographic film with a detailed explanation of how to enrich one’s sexual life. It is mostly subjective to determine whether a particular product has an expressive content. In order to obtain the result they desire, judges could seek justification in any way; their personal feelings about the material in question might or might not allow its  prohibition. Barendt, who can see no reason other than sexually explicit content for the regulation, pointing out the possibility that it sometimes carries some quality of expression or artistic merit, is of the opinion that free speech is put at risk if the courts are too willing to allow regulation of pornography. He acknowledges that ‘the most extreme hardcore material’ can be regulated. However, the last proposition is problematic given the potential difficulties in determining what material is to be deemed most extreme.

Above all that has been said so far, pornography with its all forms is said to have an expressional value. It conveys a message that sex itself is pleasure and there is nothing wrong to be sexually stimulated whenever desired. Condemning the early decisions of the Supreme Court of the USA in the cases of Roth, Miller and Paris Adult Theatre where the Court, by citing the concepts of“redeeming value”, “patent offensiveness”, and “absence of literary, artistic, political, or scientific value”, penalised certain content of communication. Richards argues that ‘there is no evidence, of a generally acceptable empirical kind, that hard core pornography is without value’ Contrarily, he proceeds, much unbias empirical research proves that the existence of hardcore pornography in the life of most Americans has a significant and valued function. He concludes that the Court was influenced by the attitude of the majority of the community, which is not the foundation of the First Amendment. The latest tendency in judgments of the Supreme Court is to agree with the criticism pertaining to the content-based prohibition. In fact, it found lawful for adult establishments to be limited to certain areas to ensure government interest when it accepted that the ordinance in question was not content-based.

HARM TO WOMAN

The demand of some for the prohibition of pornography is based on the perceived harm it inflicts on women. It is claimed that pornography is a means by which men, for their own gratification, intrude on, possess and exploit women for profit. Women are brutalised, ‘trussed, maimed, raped’ and these conditions are presented ‘as the nature of women’. The harm, it is claimed, may be inflicted on women on the street by those influenced by exposure to pornography or on those women involved with the production of pornography. It is also argued that pornography negatively influences the general perception on women and promotes the subordination of them. Naturally, the assumption of the correctness of this proposition would lead allowing of the prohibition of the sexually explicit materials to the extent that has been revealed by research. However, it is far from clear that there is enough neutral, reliable evidence proving a correlation between pornography and sexual crimes or cultural breakdown. An outcome of a research conducted by Home Office was that although ‘use of pornography in the commission of some offences’ was found, ‘sex offenders are not exposed to pornography earlier than “normal” men in adolescence.’

One example of legislature relying on the harm principle is Article 63/6-7 of the UK Criminal Justice and Immigration Act 2008 (CJIA). The Act makes it an offence to be in possession of extreme pornographic images. An image is regarded as extreme if it is ‘grossly offensive, disgusting or otherwise of an obscene character.’ The following acts are regarded as extreme image in nature:
a)an act threatening a person's life;
b)an act that results, or is likely to result, in serious injury to a person's anus, breasts or genitals;
c)an act that involves sexual intercourse with a human corpse; and
d) an act of human intercourse or oral sex with a live or dead animal. Another example of this kind is Article 226/4 of the Turkish Penal Code, which penalises the act of producing or selling materials depicting unnatural sexual conduct, violent sexual acts, necrophilia, or beastiality. The main problem of these acts is that the phrases, gross offensiveness, abhorrence or unnaturalness require subjective interpretation and will inevitably invite a moral approach by the judicial bodies. On the other hand, there seems no reason for CJIA to limit the serious bodily harm to anus, breasts or genitals and not include injuries to all parts of the body.

An attempt to regulate pornography was made by Dworkin and MacKinnon who prepared an anti pornography draft in collaboration with local governments, a version of which was passed in an Indianapolis City Council Ordinance. The Ordinance perceived pornography as the “practice of exploitation and subordination based on sex which differentially harms women”. Pornography was considered to be the humiliation and subordination of women and was prohibited. The Seventh Circuit of the Court of Appeals of the USA overturned this legislation. The Court was of the opinion that it limited the free circulation of the ideas about women and the city governance did not have the right to determine which opinions of women can be put forward even if these ideas amount to subordination of the women. The Court ruled that pornography, in this context, is no different from disturbing political speech. In its judgment, however, the Supreme Court of Canada ruled that regulation of pornography is acceptable in cases where women are displayed in a dehumanising manner. The trial judge in this case had concluded that only those materials containing violence or cruelty along with sexual performance or sexual act without consent or those dehumanizing ‘men or women in a sexual context were legitimately proscribed under s. 1.’ Contrarily, the perception of the Canadian Court in two other cases was slightly different: hard-core pornographic materials could have amounted to harm to women, which would legitimately be regulated by the legislature. More importantly, the Court included lesbians and homosexuals to be protected under these considerations.

Sunstein, who claims that there is disputable evidence showing a correlation between pornography and crimes against women, argues that a ban on pornography should be discussed not with regard to its offensive and contrary nature to the values held by mainstream society, but with regard to the harm it produces, especially against women, when it contains force and violence. In Sunstein’s view, the harm is not caused by the uninhibited dissemination of pornography, contrary nature to the moral standards of the community, but by the use of force and violence. Violence may be used during the creation of the pornographic material or in obtaining the actors to produce that material.

It is further suggested that the harm argument, which would exclude homosexual pornography as the same harm cannot be inflicted there due to the absence of women, is much more convincing than those which prohibit obscene materials based on vague and subjective conventional values.

Although the attempt to narrow the area where free speech is limited and to remove the vagueness is appreciated, two objections can be made to Sunstein’s approach. Firstly, it is understood that those women who want to be involved in the production of pornography are supposed to be protected from the coercive and violent acts of producers. However, given that those exposed to criminal behaviour are free to complain to the prosecution office, and that this may be done by any person even in situations other than pornographic activities, additional measures which have the capacity to curb free speech are not necessary in a democratic society. Suppose, for example, that one of the parties in a contractual relationship is illegally pressured to sign a contract which he or she does not agree. Would it be logical to remove making any contract from the relevant law, given that unlawful attempts have happened in many societies? However, one distinct point should be evaluated. What if a serious intentional injury is inflicted during the creation of a pornographic product? Is the consent of a person, acting in such a product, against whom the intentional injury is caused, valid? Consider, for example, someone agreeing to be shot for financial gain, or someone agreeing that his or her arm is cut for making a film. If prohibition of such acts is allowed, then why should a pornographic material containing similar damages to a human not be excluded from the protection of free speech? Briefly, consent in pornographic products, when related to an inalienable human rights, may not be valid. This type of pornographic regulation may be allowed as long as it draws an appropriate line which excludes the more trivial physical damage that might occur in any sexual contact.

Secondly, the exclusion of homosexual pornographic films is not consistent with the goal of protection from violence and force. Actors employed in those materials may be purely homosexuals or lesbians. And if a protection in question is to be provided then those individuals should also be included.

It is claimed that women are used in a degrading manner in pornography. They only pretend to be getting pleasure, but actually they do not. Women do whatever is demanded from them to produce such materials. Mackinnon claims that the purpose of the dissemination of pornography and trafficking of women is to silence women. It is also claimed that pornography creates inequality between men and women. There is an assumption that women are unequally treated and subordinated during the process. By merging the sexuality and subordination, it creates an atmosphere well-fitted to a social structure of sexual inequality and, in the process, underpins the continued recurrence of that inequality.

Strossen rejects the inequality and silencing arguments, asserting that free speech has been the most effective method fighting ‘misogynistic discrimination’ and that restrictions lead to a limitation of women’s rights Women, throughout history, Strossen claims, have been silenced by limiting their free speech in sexuality. The inequality and silencing women arguments seem to overlook the fact that women, just as men, can voluntarily choose to be involved in pornography as a show of their self-esteem. They may prefer this way to display that women are equal to men in shaping their sexual lifestyle. Given that, in general, pornographic materials are created by consenting adults and the motives regarded as subordinating may involve men, homosexuals or lesbians, to declare pornography as a scapegoat in the context of women’s unfavourable position in the society does not seem to be fair. It is very difficult, in sexual matters, to determine what humiliates or what pleases the parties involved. This subjective activity may reveal different results from person to person.

Therefore, the considerations, which mostly have moral motives, that pornography degrades and subordinates women are not the proper tool for curbing pornography.

LIMITATION ON THE AVAILIBILITY OF PORNOGRAPHY

As it is the case for many rights, the right to freedom of expression was not regarded as unlimited. In fact, Article 19/2 of International Covenant on Civil and Political Rights, Article 10/2 of European Convention on Human Rights, Article 27/2 of African Charter of Human and People’s Rights, Article 13/2 of American Convention on Human Rights, Article 26/2 of Turkish Constitution and many other legal instruments deals with the restriction on freedom of speech. Some common and prominent criteria for the limitation are the protection of public order, public security, and respect for the rights of others.

Apart from other legal bases, pornography, at least in its many forms, is speech and its total proscription does not have any legitimacy. One wonders, however, whether its dissemination, display, and advertisements should be entirely unregulated. It may be claimed that such acts are disturbing and offensive to a large proportion of the community and must therefore be limited in order to avoid this offence. Those who are disturbed by the display of pornographic materials, especially women and children have the right not to be faced with it.

Taking into account that what is restricted is not the pornography itself but the manner by which it is distributed to ensure some public good it is not easy to simply reject this limitation. Courts were not hesitant to allow those restrictions. In the City of Los Angeles v. Alameda Books case, for instance, the Supreme Court upheld a city ordinance which had prohibited such enterprises within 1,000 feet of each other and establishment of more than one adult entertainment business in the same building to reduce the crime rate. It must be noted that these restrictions, if broadened too much, may result in total prohibition, which cannot be accepted. The USA Supreme Court held, in this case of Schad v Borough of Mount Ephraim, that the prohibition of an adult establishment from a broad commercial area by a local ordinance was not compatible with the principle of free speech. ECtHR, in Müller and others case, upheld the conviction of the painter who had a public exhibition which included ‘sodomy, fellatio, bestiality’, and the erect penis, which, the court defined as ‘morally offensive to vast majority of the population.’ It is significant to clarify that the exhibition in question was open to a public at large. Nevertheless, restriction in availability approach is not straightforwardregarding its underpinning considerations.

Barendt contends that how a restriction on the availability of pornographic materials with expressive content can be accepted while it is not allowed to restrict, say, a left-wing political speech in a conservative area with a view to avoid any conflict that may be caused by the nuisance of that speech. The offensiveness to the public argument has a moral character and the restriction would be morally motivated, which would discriminate between sex speech and political speech. As moral values are changeable from person to person and from time to time they may not be proper criterion for a legitimate limitation. Although Barendt agrees that restricting the areas where sexually explicit materials are displayed may be acceptable on the ground that it enable for residents to avoid their secondary effects such as increase in the crime rate, reduction in the prices of properties etc., it rejects the argument that such establishments reduce the quality of life in the residential areas, which amounts to a moral consideration.

In the case of dissemination of pornographic materials, there are competing rights: the right of speakers and recipients to free speech and rights of those who do not want be exposed to the adverse effects of those materials. The fact that pornography is distinct from political speech and deserves a protection to a lesser extent should be taken into account. The decision to limit distribution must properly weigh damages caused by limitation against the effects of unrestricted dissemination.

CONCLUSION


This essay clarifies the point that most pornographic materials have some expressive value and thus deserve protection under the free speech principle. It is not easy to confidently draw an exclusive line ensuring that those materials with exclusive content are protected whilst those without expression are not. Attempts by legislative bodies to draw such a line by using adjectives such as “obscene”, “patently offensive”, “extreme” or “hard-core” are destined to fail because of their subjective nature. These attempts can sometimes lead to arbitrary implementation deriving from religious or political motives. The results of judgments on the same pornographic products may differ from each other according to political or philosophical views which are held. Valuable artistic or literary materials might be sacrificed if their producers were deterred by excessive regulation of pornography. Although most pornographic materials do not touch upon matters of public interest they are nevertheless expressions to be protected, albeit to a lesser degree than political speech.

The theory that pornography degrades and subordinates women, although it may be the case when the involvement is involuntary, ignores the fact that there are women who voluntarily involve themselves in the making of pornography. Additionally, there are women who voluntarily view pornography. This opinion also overlooks the fact that there are sexually explicit images exclusively created by homosexuals or lesbians. It is difficult to grasp how women can be subordinated in such cases.

To avoid arbitrary proscription of expressive pornography a radical view rather than adopting subjective standards has to be taken. In mature democracies, individuals, except children, are able to make their own choice on what is wrong and harmful and what is not. Governments do not have to be overprotective. As other areas of free speech, the most effective way of fighting bad speech is counteracting with ‘good’ speech. As prohibiting some types of pornography mostly derives from subjective decisions an objective criterion must be found. The attempt of CJIA 2008 to determine criteria for the prohibition of pornography was unsuccessful,  as it relied upon vague standards. The suggestion this paper will make is as follows: a- criteria requiring subjective interpretation may not be employed in selecting which pornography may be allowed, b-violence pretended to be inflicted in the making of such material may not be a reason for prohibition, just as action films of non-pornographic character containing violence may not be prohibited,  c- trivial injuries that may be caused by any sexual performance must be tolerated, d- pornographic images which depict serious injuries, regardless of whether they are inflicted on women, men, gays or lesbians, and caused by intentional acts which may not be legitimized by the consent of the injured, must be outlawed as consent for the deprivation of inalienable rights is invalid. Undoubtedly pornographic materials employing children are unlawful, but these are excluded from examination in this essay.

The issue of display of sexually explicit material is clearly distinct from the total prohibition of pornographic materials. In fact, there is nothing wrong in protecting children who are not mature enough to make their own decisions about pornography nor in protecting those who may be adversely affected by the distribution of pornographic materials or by adult entertainment centres.

However, in doing this, it is imperative that regulations on the display and distribution of pornographic materials and adult establishments are designed in such a way that this right, although restricted in some way, can still be exercised while also protecting those who do not want to be exposed to it.


BIBLIOGRAPHY
BOOKS:
Barendt E, Freedom of Speech, (Second edition, OUP 2005)
Barnett H,Introduction to feminist jurisprudence, (Cavendish Publishing Limited 1998)
Goodin R E&Pettit P (ed), Contemporary Political Phylosophy:an analogy, (Blackwell Publishing 2006)
Lehman P, Pornography: film and culture, (Rutgers University Press 2006)
Hunter I&Co, Saunders D, Williamson D, On Pornography, Literature, Sexuality and Obscenity Law, (Macmillan 1993)
Mackinnon C A, ‘Not a moral issue’ in D. Kelly Weisberg (ed), Applications of Feminist Legal Theory to Women’s Lives (Temple University Press 1996)
Mackinnon C A, Toward a Feminist Theory of the State, (Harvard University Press, 1991)
Schauer F, Free Speech: a philosophical inquiry, (CUP 1982)
Spector J, Prostitution and Pornography, Joshua Cohen,(Stanford University Press 2006)
Strossen N, Defending pornography, Free Speech, Sex, and the Fight for the Women’s Rights, (New York University Press 2000)
Sunstein CR, Democracy and the Problem of Free Speech (The Free Press 1993)
Yaman Akdeniz, internet, child pornography and the law, (Asghate Publishing Limited 2008)

JOURNALS:
Gourgey N, ‘Pornografi and freedom of speech’, (1997) 8 ELR 91
Mackinnon C A, ‘Pornography as Trafficking’ (2005) 26 Michigan Journal of International Law
Richards D A J, ‘Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment’ (1974) 123 University of Pennsylvania Law Review

WEB SITES:
http://web.law.umich.edu/_facultybiopage/facultybiopagenew.asp?id=219 Accessed 05.11.2011

 

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