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Revisiting The Obscenity Jurisprudence with Respect to Pornographic Content


ABSTRACT

State intervention on pornographic content finds a legal basis on the tests associated with obscenity jurisprudence in common law jurisdictions. However, the state supervision of pornographic content or lack of any supervision thereof has far-reaching implications on the universally assured right to free speech and expression as well as the standards of basic human dignity breached by degrading pornographic content, largely causing great harm to women and the transgender community. This article attempts to analyse obscenity jurisprudence in common law jurisdictions as well as the significance in maintaining a balance of interests in state action with respect to pornographic content. It argues in favour of restraint and reasonability in the regulation of pornographic content on the basis of the extent of harm caused.


“I can’t define pornography, but I know it when I see it”

- Stewart, J. (i)


Keywords: Obscenity, Pornography, free speech and expression, degrading portrayal of marginalized groups.



INTRODUCTION


The widespread accessibility of graphic pornographic content online has brought into popular discourse the extent of criminality of pornographic content along with its implications on free speech and expression and the depiction of women and transgender persons. The normalization and popularity of such degrading content compel extensive state intervention in the widespread viewership of such content (India leads the world in global porn consumption on smartphones despite the criminalization of uploading obscene content online) as the gruesome impact of violent and degrading content is not limited to the degrading depiction and its subsequent impact on the psyche of individuals who engage in frequent consumption of such content but also the well-being of young adults and teenagers who constitute a significant proportion of the viewership of pornographic content. However, the significance of reasonability and restraint in the criminalization of pornography in light of freedom of speech and expression and right to privacy must be taken into consideration.


This article seeks to make an argument in favour of a restrained approach to pornography laws. It first provides an overview of the development of obscenity jurisprudence at common law. It attempts to analyse the significance of regulation of pornographic content with respect to the psychological harm it causes to marginalized groups. It argues against the criminalization of all kinds of pornography and the need to adopt a rational legal approach to pornographic content.


THE JURISPRUDENCE ON OBSCENITY


Pornographic content has been variedly defined in the context of its legality, usually as per the prevailing nature of morality in the society. For example, the display of female ankles was considered to be indecent during Victorian times. Pornography has been colloquially defined as “sexually explicit content meant to produce sexual arousal in viewers”. Within the ambit of such a definition, films or books with sexually explicit content contextualized by a story would not have the primary aim of producing sexual arousal in viewers and, thus, would not be considered as pornographic content.


However, pornography in the legal context has been interpreted by the standards of obscene content. The involvement of the state in curbing obscene content with stringent punishments is said to have started in Britain, stemming from the objective of preserving citizens’ religious sensibilities, thus, clamping down on “un-Christian” expressions of sexuality. In the infamous English case of R v Hicklin (ii) in 1868, CJ Cockburn laid down the test of obscenity by the standards of the tendency of the content in question to “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall,” inserting in their mind thoughts of a most impure and libidinous character. This test, known as the Hicklin test, leaves the meaning of depravity, corruption, impure and libidinous character and obscenity undefined. Another problematic aspect of this test of obscenity curbing depravity and corruption of minds of people is that it is a moral regulation on the freedom of expression of sexuality.


The jurisprudence on obscenity diverted from the widely adopted Hicklin test in the American case of Roth v. United States (iii). The court, in this judgement, heavily criticized the Hicklin test as too broad because it required content to be regulated based on the effects it may have on any potential receiver whose mind may be open to an immoral influence. In this sense, the Hicklin test requires consideration of the subjective psyche of every individual who may be exposed to such content effectively laying down an unreasonably broad restriction on the expression of sexuality. The court, then, laid down the test of contemporary community standards to determine the obscenity of content with respect to its protection under freedom of speech and expression which replaced the requirement of the effect of the content on the individual potential receiver with its effect on contemporary community standards. Thus, in the Roth case, the majoritarian generality of the morality of the community towards obscene content was introduced. Later, obscene content with redeeming social value as per the significance of artistic freedom in the freedom of expression was recognised as an exception to the test of contemporary standards (iv).


This test was refined in Miller v. California, (v) which determined the standards by which community standards could be understood. The court described three qualifications comprising: first, the views of an average person with respect to whether the content in question appealed to prurient interests to determine contemporary standards, secondly, the depiction or description of sexual conduct in a patently offensive manner as defined by the applicable state law, and thirdly, the absence of serious literary, artistic, political or scientific value. This concretization of the test of contemporary community standards which is the prevailing jurisprudence on obscenity in the US after the expansion of its application to online content in United States v. Thomas (vi) has been severely criticized for its imposition of majoritarian values for the determination of restriction on freedom of expression instead of the liberal standard of harm caused by such expression. The determination of restriction on the freedom of expression through pornography based on the perceived moral value of its expression in the eyes of the community, which is essentially represented by its majority, clearly contrasts the individualistic value of such freedom.


Pornography laws in India, like the USA, come under the purview of obscenity jurisprudence. In Ranjit D. Udeshi v. State of Maharashtra (vii), the court differentiated between pornography and obscenity in the sense that pornography intends to arouse sexual desire while obscenity does not intend to, but tends to, arouse sexual desire. Thus, pornography is considered to be an aggravated form of obscenity.


In India, the criminalization of pornography as obscene content is considered to be a reasonable restriction to freedom of speech and expression on the grounds of decency and morality under Article 19(2) of the Constitution (viii). However, no legislation, including the Indian Penal Code, defines obscenity. The test of obscenity as laid down in the Hicklin case has been adopted in India. In the Ranjit Udeshi case (ix), the court held the book Lady Chatterley’s Lover to be obscene on the grounds that it tends to corrupt or deprave individuals most vulnerable to immoral influences. Even Section 67 of the IT Act, 2000 criminalizes the circulation of content the effects of which “tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” (x) Similarly, Section 2 (c) of the Indecent Representation of Women Act defines indecent representation of women to be depiction of women which is denigrating or derogatory or likely to “deprave, corrupt or injure the public morality” (xi). Later in the 2006 case of DG Doordarshan v Anand Patwardhan (xii), the court moved towards the American obscenity jurisprudence by applying the average person test instead of the Hicklin test to determine the standard of obscene content.


DEGRADING PORNOGRAPHIC CONTENT


The radical feminist stand against pornography stems from the often degrading portrayal of women in mainstream pornography. The psychological effects of graphic nudity when contextualized in the profiling of women in pornography to the extremes of either submissive or “loose” is severely criticized by anti-pornography feminists. The role of pornography in the continuance of gender discrimination and violence against women has been excessively discussed by Catharine MacKinnon (xiii). MacKinnon argues that the market created by pornography comprises women entering the industry out of economic or social necessity. She further states that the market for violent pornography affects these women because of the growing demand for such pornographic content, at times, compelling them to participate in it (xiv). While MacKinnon’s subsequent argument against the violent pornographic market with respect to its demand forcing women to participate because of economic or social compulsions stands tall in light of prohibitions on violent pornography, the peculiar factor in MacKinnon’s initial argument is that it rests on the sexist characterization of women in the pornography industry as opposed to their male counterparts which causes harm to such women. A complete prohibition on all kinds of pornography (including non-violent and non-degrading pornography) would not contribute to reducing the inherent sexist tendencies which lead to such characterization causing pornography to be a “last resort” participated in out of compulsion. A ban on all kinds of pornography would also cause a major dent in the growing acceptance towards the expression of sexuality and reduction of heteronormativity in popular culture. This in itself contributes towards the freedom of non-heteronormative expression as well as the expression of sexuality by women.


Another major contention on the portrayal of women in pornography is the normalization of sexual violence through pornography. The link between the portrayal of women in pornography and its influence on the psyche and behaviour of men causing sexual violence against women attracts the material importance of regulation of pornographic content. Another major contention is the reinforcement of gender power dynamics as pornography that portrays the pain of women to be a man’s pleasure has implications beyond the realm of sexual relations. Even in this context, drawing a differentiation between degrading graphic pornography and pornography with the purpose of sexual arousal without the potential of any untoward psychological harms (even with frequent consumption) must be drawn in light of the constitutionally assured right to free speech and expression. The prohibition of graphic and degrading pornography and its effective application implies that instead of prohibiting pornography for the purpose of gender equality, prohibiting sexist power dynamics in pornography must become the central aim. This is further rationalized by the countering liberal feminist approach in favour of pornography. This approach establishes the significance of the enjoyment of sexuality by women challenging the anti-pornographic assumption of women being ‘subjected’ to sexual activities (xv). Thus, it affirms that women cannot be characterized to be sexually passive and aims to deconstruct the taboo on women’s right to expression of sexuality. As previously established, a complete ban on pornography would substantially limit the scope of expression of sexuality by women.


Furthermore, the degrading portrayal and objectification of transgender persons in pornographic content, like the portrayal of women, is deeply problematic and largely ignored. The contention of MacKinnon on participation in violent pornography is ruthlessly aggravated in the case of transgender individuals who are ostracized and subjected to cruelty beyond the aspect of sexuality in matters of basic rights, thus compelling them to participate in violent pornography. Also, the normalization of the degrading depiction of transgender individuals when coupled with the toxic negligence of their welfare in society leads to further ostracization. A study on pornographic consumption and attitude towards transgender individuals revealed a substantively weak association between greater pornography consumption and more positive attitudes toward transgender individuals along with sexual shame on attitude towards transgender individuals. Moreover, the legal protection afforded to transgender individuals is limited (xvi) with respect to legislative measures and absent in the context of sexuality and obscenity.


The prohibition of degrading pornographic content can contribute towards the mainstreaming of non-violent and non-degrading pornographic content that facilitates the freedom of expression of sexuality (irrespective of sex, gender or sexual orientation) without the degrading depiction of women and transgender persons as pornography and gender neutrality or fluidity do not have to be mutually exclusive.


CREATING A DIFFERENTIATION BETWEEN HARMFUL AND UNHARMFUL PORNOGRAPHIC CONTENT


However, the application of such differentiation and development of new standards can only be done when the jurisprudence on obscenity moves beyond the test of contemporary community standards. As discussed before, the determination of obscenity to restrict the expression of sexuality by the standards of contemporary morality as the prevailing obscenity jurisprudence is majoritarian. A restriction on the fundamental right of an individual on the basis of majoritarian morality cannot be fairly categorized under Article 19(2). This is because the liberal standards from which rights of individuals stem require restrictions on freedom to be imposed to prevent harm to others. This harm principle as seen in the writings of J.S. Mill requires the state to exercise power over the rights of individuals only to prevent harm to others (xvii). Thus, the interpretation of the words “decency and morality” under Article 19 (2) should not be interpreted to impose majoritarian morality on the conduct of individuals as long as it does not harm, in the context of graphic and violent pornographic content, the rights of women, transgender persons and children. Thus, the prohibition of publication and circulation of pornographic content must be limited to pornographic content which has a degrading portrayal of women and transgender persons, child pornography, revenge pornography, etc. This standard of harm to determine obscene content has been adopted in Canada (xviii). Furthermore, this standard also exists in the definition of indecent representation of women as the depiction of women which is denigrating or derogatory, although along with the public morality, under Section 2 of the Indecent Representation of Women Act, 1986 (xix).


The differentiation between graphic violent pornographic content and non-degrading pornographic content must be made on the basis of the extent of the harm it causes to the psychology of a viewer in the context of any harm it can cause to a person or class of persons. Furthermore, effective prohibition of graphic and violent pornography after its distinction is an important step in achieving the idealistic goal of free expression of sexuality without harming the interests of women, transgender persons, children or any group that may be harmed by such content.


CONCLUSION


The extent of censorship of pornographic content must be determined on the basis of the harm it can cause. The significance of a rational legal approach based on the differentiation on the kind of pornographic content published and circulated instead of a blanket prohibition on the publishing and circulation of all kinds of pornography is paramount in the context of the expression of sexuality. Establishing a middle ground on the basis of determination of harm is essential to the fair development of obscenity jurisprudence for the sake of preserving liberty and equality in the expression of sexuality.



REFERENCES

(i) Jacobellis v. Ohio, 378 U.S. 184 (1964).


(ii) R. v. Hicklin, (1868) LR 3 QB 360.


(iii) Roth v. United States, 354 U.S. 476 (1957).


(iv) Memoirs of a Woman of Pleasure v. Massachusetts 383 US 413 (1966).


(v) Miller v. California, 413 U.S. 15 (1973).


(vi) United States v. Thomas, 362 U.S. 58 (1960).


(vii) Ranjit D. Udeshi vs State of Maharashtra, 1965 AIR 881.


(viii) INDIA CONST. art. 19, cl. 2.


(ix) Supra. Note 7.


(x) The Information Technology Act, No. 21 of 2000, INDIA CODE, § 67.


(xi) The Indecent Representation of Women (Prevention) Act, No. 60 1986, INDIA CODE, § 2.


(xii) Door darshan v. Anand Patwardhan, 2006 (8) S.C.C. 433.


(xiii) Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law, (1987).


(xiv) Andrea Dworkin and Catharine MacKinnon, Pornography and Civil Rights: A New Day For Women’s Equality 42-44 (1988).


(xv) Ellen Willis, Feminism, Moralism, and Pornography, 38 N. Y. L. Sch. L. Rev. 351 (1993).


(xvi) The Transgender Persons (Protection of Rights) Act, No. 40 of 2019, INDIA CODE.


(xvii) John Stuart Mill, On Liberty, 13-16 (1859).


(xviii) R v Butler [1992] 1 SCR 452 (Can.).


(xix) Supra. Note



This piece has been authored by Khushi.


Khushi is a second-year BA LLB (Hons.) student at Maharashtra National Law University, Mumbai.



Image Source: https://trynottocryonmyrainbow.com/2019/12/30/im-not-the-wife-of-a-porn-addict/

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