The concepts of free speech and freedom of expression are important values to uphold in a functioning democracy. They ensure the critical inspection of governments and people in power. They aim to enable everyone, regardless of financial situation or background, to participate in debates in the public sphere, and they state that artistic censorship is not acceptable without due cause.
There are always exceptions to such rules, however. One of the important exceptions to freedom of speech and expression when it comes to the media industries concerns material that is found to be of an obscene nature. This essay will discuss whether there is a need for obscenity regulation in today’s media society and examine the qualities that can potentially make media outputs obscene in the eyes of the law.
In its original meaning, the word “obscene” refers to material that is repugnant or disgusting to the senses, or offensive, filthy, repulsive or foul. However, obscenity regulation in the UK is mostly applied to articles that deal with sexuality and material of a sexual nature. (Schauer, 1982; 179.) The argument for outlawing publications that are deemed obscene rests on the assumption that they are in some way harmful to society and its citizens. It is a difficult task, though, to measure the potential harmful qualities of a certain article against the protection of freedom of speech. To deal with this dilemma, the courts in the UK use a definition of what constitutes obscene material that should not be allowed publication which dates back to the R v. Hicklin ruling of 1868. In it, Lord Cockburn CJ stated that obscenity was something that has a tendency “to deprave and corrupt those whose minds are open to… immoral influences, and into whose hands a publication of this sort may fall.” (Barendt, 1985; 255.) This judgement defined corruption as the suggestion of “impure” thoughts, and the publication would be ruled obscene if it potentially had this impact on “any young or other vulnerable people” who might read it.
The definition was slightly altered in 1959, however, when the Obscene Publications Act came into effect. Section 1 of this Act stated that publications should only be considered obscene if they were to deprave and corrupt a significant proportion of people who are “likely, having regard to all the circumstances, to read, see or hear the matter contained or embodied in it.” This definition, which still makes up the law on obscenity in the UK, makes the potential obscenity of an article dependent on what types of people may have access to it, and whether those people are likely to be depraved and corrupted by it. (Carey and Sanders, 2004;133.) There are therefore individual and subjective considerations that have to be made in each case, and the decision on obscenity will be based not objectively on the article itself but also on where and to whom it is published or broadcasted.
When discussing obscenity, there are four main arguments used to support the suppression of obscene materials. These can be distinguishable as offensiveness, moral judgement, undesirable attitudes and practices, and encouragement of criminal activity. (Greenwalt, 1995;106.) If one first examines offensiveness, the argument is that the general public could be offended by either knowing that material which seriously offends them exists, or that they may unwillingly be exposed to such material.
This is closely linked with the second argument; that the consumption of articles which are considered obscene is immoral and goes against the moral norms of society and should therefore be illegal. It can also be argued that exposure to obscene material may promote attitudes and practices which are not wanted by society as a whole, and that they should on the basis of this not be allowed. These arguments, however, do lead to some basic questions. How does one decide what is moral and what is immoral? What is offensive to some people will be perfectly normal to others – where does one draw the line? And in a diverse and multicultural society, who decides what attitudes are righteous or what practices are desirable?
There are several points of contention when it comes to judging the morality of media outputs, and they seem to be constantly changing. The portrayal of homosexuality, for example, used to be morally offensive to large portions of society but is more accepted today. The morality of other issues such as public nudity, drug taking, explicit descriptions of violence and swearing in public are also subjects on which people have different views today than what they had ten or twenty years ago.
An example of this can be found in the prosecution of rap group 2 Live Crew’s record As Nasty As They Wanna Be in Florida in 1990. The record, parts of which contained explicit sexual lyrics, was claimed to be obscene under state law. During the trial, expert witnesses were called who stated that the recording was of a political nature because the 2 Live Crew, as black Americans, used this medium to express themselves and that “white Americans would ‘hear’ the Nasty recording in a different way than black Americans because of their frames of reference.” (Creech, 2003;172.) After being subjected to the Miller Test (a test where American courts define obscene material as something which defies prurient interest according to contemporary community standards, has patent offensiveness under State law, and lacks serious artistic, scientific, literary or political value (Greenawalt, 1995;100)) the record was nonetheless found legally obscene by the Florida district court. The sentence was, however, later overturned on appeal. Today there would be little or no political will to claim that a recording of popular music is obscene, even though many contemporary artists have released material in recent years which have been as explicit as or more explicit than the 2 Live Crew’s Nasty record.
Another argument for restricting the publication of obscene material is that it might encourage or influence people to engage in deviant or criminal activities. Extensive research has been undertaken and claims have been raised that consuming media which is classified as obscene, especially if it contains graphic scenes of violence, may cause people to commit violent or sexual crimes. As evidence for such a correlation, the findings of a 1986 Attorney General’s Commission on Pornography from the US is often cited, which asserted that “exposure to sexually violent materials increases the chance that men will be aggressive toward women.” However, the report has been widely challenged, even by some of those whose empirical studies were used as support for the Commission’s conclusion. (Greenawalt, 1995; 107.) That did not stop its application, however, in a multibillion-dollar lawsuit launched in 2001 by the parents of the children murdered in the Columbine High School shootings against the makers of violent computer games, including massive corporations such as Paramount, Sega and Sony. Critics of this lawsuit have pointed out that violent crime levels have fallen drastically in recent years, in spite the release of games like Doom and Quake: “Doom was released in 1994. In the four years between the release of Doom and Quake II, the number of killers under the age of 18 in the US plummeted by 46 percent.” (Independent, 2001.) One could therefore be justified in questioning to what extent deprivation and corruption from exposure to potentially obscene material actually affects consumers, and to what extent any potential effect can be proven and documented.
When it comes to other media outlets, there are different regulatory agencies created to ensure that they stay within bounds of what is considered legal. The British Board of Film Classification (BBFC) is the regulatory body for films in the UK, and gives feature films classifications based on different pre-set categories. There are U, Uc and PG, which are advisory only; 12, 15 and 18, which restrict viewing by age; and R18, which is only available for adults in licensed outlets. According to BBFC director Robin Duval, public acceptability is one of the BBFC’s main criteria for rating films, in addition to set “restrictions under the Obscene Publications act.” (Observer, 2001.) The equivalent regulator for television and radio is the Office of Communications (Ofcom.) Covering text, cable and digital services, its main tasks established by the 2003 Communications Act include producing codes of conduct and to monitor, research and report on standards and fairness in broadcasting (Ofcom.org.uk.)
It seems, however, that the general public is not completely supportive of having such a regulatory body. When asked in a 2001 Broadcasting Standards Commission survey about who should be responsible for controlling what people see on television, 65 per cent answered the viewer themselves. In comparison, 24 per cent said broadcasters or programme-makers while only 12 per cent answered that the Government or regulators should be responsible.
An area where it is proving increasingly hard to regulate against obscene material is the internet. The immense volume of explicit sexual material present for any internet user is changing the attitudes of people who previously would go out and buy regulated magazines in shops. It also means that it is virtually impossible to control exactly what material is available to the general public. This has also been argued to cause a so-called “trickle-down effect,” where magazines such as Loaded and FHM have made soft pornographic material more accepted and readily available. According to Kieron Maidment, a barrister who specialises in obscenity, the hard core pornographic material has also become “harder.” “Perhaps 10 years ago we were worried about showing erections and open labia shots” he says. “Now the offending material must be far more extreme.” (Observer, 2002.) It is not impossible, however, to control publication on the internet. The issue of jurisdiction over publication, one of the main problems with such a control, was dealt with by the Court of Appeal in R v Waddon in 2000. In this verdict, the Court held that:
“while there can be publication on a website abroad, for example when images are uploaded to a server outside the UK, there would be an additional publication when the images were downloaded to a computer elsewhere. Where that computer was in England, that gives rise to jurisdiction for the English courts for the purposes of hearing a prosecution under the Obscene Prosecutions Act 1959.” (Carey and Sancers, 2004; 145.)
Even with such a protection, though, the vast amounts of material present on the internet makes it very hard, if not impossible, to bring a prosecution or threat of prosecution to every individual or service provider that uploads material of an obscene nature.
If an article has been found to be legally obscene, there are safeguards within the OPA which can nonetheless excuse its publication. According to the “dominant effect principle,” the courts are required to look at the piece as a whole and not solely on the parts of the work that has been found to be obscene, in order to determine whether the piece as a complete entity still has the qualities of an obscene publication under contemporary standards. If the piece is still considered to be obscene, there are some defences which can be put on to support the work. On of them, the “public good defence,” has been incorporated in Section 4 of the OPA 1959, which states:
“A person shall not be convicted of an offence… if it is provided that publication of the article in question is justified as being for the public good on the grounds that it is in the interest of science, literature, art or learning, or of other objects of general concern.” (Barnedt, 1985; 270.)
In addition, the innocent publication or possession defence states that no person should be liable if they can prove that they did not know or should have know that by publishing the material they would be liable for prosecution. Also, the aversion defence determines that a work should not be liable if it is of such a disgusting nature that it discourages consumers from participating in or condoning what is described. (Carey and Sanders, 2004; 139.)
When discussing freedom of speech as opposed to the restraints embodied in obscenity regulations, it is important to note that in a democracy speech is never and can never be entirely free. There will always be certain restraints present on what people are allowed to say, whether it be due to safety regulations, political interests, protection of minorities or considerations of taste and decency. The question one has to ask, as worded by Stanley Fish, is whether the risk of not attending to hate speech or dealing with material which is considered by some to be obscene is greater than the risk that “by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope toward tyranny.” (Fish, 1994; 115.) It does seem evident, however, that we do need certain controls on what can be allowed into the public sphere, in consideration of the masses.
In future years the progression of the internet and digital communication will drastically change the ways in which we are able to control and keep a lid on obscene material, something which can have both negative and positive consequences. Improving international collaboration on methods to deal with problems arising from obscenity on the internet is becoming increasingly important, if we are to successfully deal with tensions concerning obscenity regulations which will undoubtedly surface in years to come.
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Greenawalt, Kent. (1995.) Fighting Words. Individuals, Communities and Liberties of Free Speech. Princeton University Press, Princeton, New Jersey.
Independent, The. (2001.) School massacre families to sue creators of violent games. By Charles Arthur, Technology Editor. In The Censorship Issue. (2001.) Independence Educational Publishers, Cambrige.
Observer, The. (2001.) Film censor to stop playing nanny. By Vanessa Thorpe, Arts Correspondent. In The Censorship Issue. (2001.) Independence Educational Publishers, Cambrige.
Observer, The. (2002.) How to corrupt and the changing definition of obscenity… By Carl Wilkinson, Sunday October 27. Accessed on: http://observer.guardian.co.uk/sex/story/0,12550,818537,00.html.
Schauer, Frederick. (1982.) Free Speech: A Philosophical Enquiry. Cambridge University Press.