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Thoughts on Pornography and Free Speech

Here's a summary of the arguments in the post below: Arguments on Porn, Rape and Free Speech

(Draft post, heavily dependent on personal opinion, based on some tweets. It only refers to pornography which features real women.) 

The argument conflating pornography consumption and free speech seems to be based on the rather questionable premise of the right to access pornography being a component of free speech, since free speech is both about expression and the receipt of expression. Unfortunately, the 'accessing pornography is free speech' argument doesn't seem to consider the source of pornography. Expression is equated with access. There is no room to say the expression has to be free for access to expression to kick in as a free speech right; access is not a right subordinate to expression having been free in the first place. And there are lawyers speak of free speech and pornography in relation to First Amendment jurisprudence in the US (which is far more enthusiastic about limiting obscenity than pornography), and the European Convention on Human Rights which says, in Article 10(1), that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

In other words, as far as the 'accessing pornography is free speech' argument is concerned, regardless of whether or not the initial expression is free, there exists a right to receive/consume that expression. In the context of pornography, that means the right to consume pornography is unaffected by whether the pornography features a person being raped or expressing sexuality or something else entirely. And in doing so, it completely ignores that free speech rights are never absolute. Article 10(2) of the ECHR itself, which recognises the right to receive information as being a component of the right to free speech, goes on to say (in terms comparable to Article 19(2) of the Indian Constitution) that: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

And while several socio-legal issues come up with regard to pornography — whether or not obscenity / explicit content should be permissible; what the effect of consuming pornography is; and how pornography is made — these are largely independent issues.

The arguments against obscenity have always been rather thin, and have relied strongly on social acceptability and contemporary norm. If one were to consider the US, for example, in the 1896 of Rosen v. United States, the test devised to ascertain if content was obscene in the earlier 1868 English case of Regina v. Hicklin was adopted, and content was deemed obscene if it tended ‘to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’. This was later superseded by the formulation in the 1957 case of Roth v. United States according to which the test for obscenity was ‘whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest’. Subsequently, the Roth Test was expanded in the 1973 case of Miller v. California, perhaps due to the legal position being entirely unclear: in the 1964 case of Jacobellis v. Ohio, Justice Potter Stewart famously said, "I know it when I see it," upon failing to precisely define pornography.

One problem with obscenity is that it is virtually impossible to define the difference between obscenity and explicit content, between pornography and high art, between the naked and the nude in legal terms (although, it must be said, John Berger managed to differentiate between the naked and the nude with remarkable clarity in a book on how art is viewed). That said, the differentiations have often been closely tied to issues of class, gender and conceptions of 'high art'; none easily navigable waters, and none providing strong arguments against the permissibility of explicit content per se.

Early notions of why obscenity was wrong were tied to religion as well as the belief that explicit content has a tendency to deprave or corrupt minds. In fact, this appears to have been the basis of the test laid down in the 1868 case of Regina v. Hicklin to determine whether or not content was obscene — is obscene, in fact: the test is still referred to in India. There have never been clear lines drawn between the proliferation of explicit content per se, and either a degradation of morals or an increase in sexual violence. It can be (and has been) argued (rather forcefully by those like Robert Jensen) that contemporary pornography often turns women into nothing but ‘three holes and two hands’, and it is reasonably clear looking at the manner in which the pornography industry has sought to create more and more ‘extreme’ content, that the consumers of pornography become enured to existing levels of violence in pornography over time, and seek increasingly ‘extreme’ content. That there is a clear correlation between sexual violence in pornography and sexual violence perpetrated by those who consume pornography has, however, never been proven, and while it is entirely possible that there are links between the two, definitively stating that such links exist may be based more on belief than on evidence.

What is not debatable though is that pornography is not a monolith: it comprises several different genres, and modes of production vary greatly. And it is looking at pornography from this perspective that the unqualified free speech arguments made in relation to the right to consume pornography fail entirely. If one were to consider pornography, there are over fifty genres currently in existence although, for the purpose of this discussion, it may be adequate to divide pornography into:
  1. pornography which is made and disseminated with the consent of those who perform in it (even if the consent is granted in order not to upset power structures within the industry, by reason of undue influence or otherwise);
  2. pornography which is made with the consent of those who perform/feature in it but disseminated without their consent (e.g. some revenge pornography);
  3. pornography which is made and/or disseminated with the consent of those who perform/ feature in it even though they should not be considered to be competent to grant such consent (e.g. some child pornography); and
  4. pornography which is made and disseminated without the consent of those who feature in it (e.g. videos of rape).
With the exception of the first case, there isn’t what should be considered to be consent for both the production and the dissemination of explicit content by those who feature in it, and such pornography could be considered to be non-consensual pornography. Even leaving aside basic human decency, in light of contemporary human rights jurisprudence, it is hard to argue that there exists any free speech right to access pornography where explicit content is not made and disseminated with the consent of those who feature in it. In some cases, there may certainly be a balancing of rights involved. For example:
  • In the case of revenge pornography, does the right of the person featured to privacy override the free speech right of a consumer of pornography to (presumably) entertainment?
  • In the case of child pornography, does the right of the child featured to be protected from sexual exploitation override the free speech right of a consumer of pornography to (presumably) entertainment?
  • In the case of rape, does the right of the person being raped to privacy and further sexual exploitation override the free speech right of a consumer of pornography to (presumably) entertainment?
    And in all of these cases, where the pornography is commercial, is the right of publicity of the persons featured in it irrelevant?
While Indian law relating to pornography and free-speech is not well-developed, the law clearly recognises the need to protect children from sexual exploitation by the criminalisation of the possession of child pornography in the Information Technology Act of 2000, although all adults featured in pornography do not immediately receive similar protection. In India, the possession of pornography per se is not a crime (and neither does there appear to be any compelling reason why should it be), and, along similar lines, in the US, in Stanley v. Georgia, it was held (with reference to the First Amendment) that 'a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch'.

There are, of course, some circumstances in which women featured in non-consensual pornography may receive legal protection; in India, there are a plethora of laws governing sexual violence and obscenity which may be invoked by or on behalf of women who find themselves featured in non-consensual pornography (especially if it has been disseminated). The ground reality, however, is that, as a general rule, the women who feature in non-consensual pornography do not have the option of approaching legal systems, and those who consume pornography, as a general rule, do not have the faintest idea of how it has been produced (and do not care to find out).

Considering that many women do not have access to protective laws, recognising and addressing the violence inflicted only on those women who have the privilege of access to law (and the social credibility to have violence inflicted on them be addressed by the law), implies that privileged women are more valuable than ‘other’ women. The ‘other’ women, of course, are women often unlikely to be personally known or related to those who have a voice when it comes to public discourse, and, as of old, class issues come into play. Despite facing the similar issues as privileged women, ‘other’ women may not (possibly subconsciously by those with a voice) be considered to merit being heard and receiving legal redress.

As such, it appears disingenuous to have any discussion of pornography and free speech without taking into consideration ‘sourcing issues’ — not all pornography is consensual (and there is no shortage of anecdotal evidence to support this); turning the right to consume pornography into a free speech issue without any qualification ignores this basic fact.

The assertion of a right to consume pornography regardless of sourcing effectively supports possible rape by disregarding it at best, or considers having been raped and filmed as one’s expression of free speech at worst — both ways, if the right to consume pornography is not subject to its having been made freely in the first place, it effectively translates to having the right of others to watch one's possibly being raped (presumably, for their entertainment) being more important than one's right not to be raped and not to have one's being raped turned into entertainment for consumers of pornography.

There is no doubt that pornography, its production and dissemination, is not always rape or exploitation. The problem is that it could well be. And as such, the right to consume pornography without the clarification of sourcing issues is not and should not be a free speech right (or, for that matter, any right at all). It isn’t even minimally humane. What is (or should probably be) the only free speech right when it comes to pornography is the right to perform in pornography assuming one has the ability to validly consent to doing so.

Ultimately, an unqualified right to consume pornography (in relation to free speech or otherwise) can only exist based on the premise that the importance of facilitating the exercise of this right is great enough to warrant ignoring that not all pornography is consensual. What such an unqualified right says to those who feature in pornography is that despite the knowledge that pornography could have violated their rights to privacy, and to sexual integrity and autonomy, amongst other rights, protecting their rights is less important than ensuring that the right of the consumers of pornography to access pornography remains unimpeded. As has been argued: 'the assumption that consuming porn is a right is classic rights inflation coupled with wilful myopia'.


(This post is by Nandita Saikia and was first published at Indian CopyrightIt uses the term 'revenge porn' simply because it's a term that's been widely used, and not because it's an accurate description of what so-called 'revenge porn' involves. It's also worth noting that the term 'revenge porn' is especially problematic since it seems to blame the victim by implying that she —and it is usually a woman— did something which calls for revenge.)