Whether the UK Law of Obscenity Should Be Abolished - Essay Example

Obscenity The legal position on obscenity in the U.K. was laid out under the Obscene Publications Act of 1959, which was enacted to “amend the law relating to the publication of obscene matter; to provide for the protection of literature and to strengthen the law concerning pornography.”1 This law therefore specifically applies in the context of the statement made by Geoffrey Robertson, as was defined under the Obscene Publications Act of 1959. Section 1 states that obscenity in the content of books, films, video tapes and computer software would be that which may “tend to deprave or corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it.” This definition has been derived from the case of R v Hicklin2 where the Plaintiff Henry Scott was charged for publishing an offensive, anti-Catholic booklet. The decision of the trial Court finding Hicklin guilty was reversed by the higher Court who upheld Hicklin’s argument that the intent behind the publication of the booklet was not to corrupt and deprave. This decision was however reversed by the Queen’s Bench which held that the intention was immaterial if the matter was obscene. This case set a precedent wherein selected passages from a work could be examined out of context to determine obscenity and if found, the entire work could be removed from public consumption. This standard of obscenity has since been revised in subsequent cases. Two of these important cases are Roth v United States3, in which Mary Dennett, a birth control activist was held accountable in the same manner as Scott was in the Hicklin case, of publishing a booklet that was deemed to be obscene. The Supreme Court however did not find the work to fulfil the criteria of “depraving and corrupting” the reader of the material, because it essentially constituted sex education which was presented in an acceptable way. Thus, this case established that when an obscene passage is viewed in the context of the entire work which on the whole was presented decently, it would not be classified as obscene. The Court also raised the important issue of protection of the First amendment rights to freedom of speech guaranteed under the United States Constitution, which would have been violated if a decision had been made to ban the work purely on the basis of some passages that some readers found obscene. This case has thus raised two important issues that rose in opposition to the argument in support of a finding of obscenity which emerged in the Hinklin case. First, the rights to freedom of speech of the writer/producer of the obscene work also need to be taken into consideration. Denying the freedom of speech would mean restricting creativity. The very nature of art is such that some find it appealing, while others might find the very same piece of art revolting. Secondly, a work will not necessarily be obscene, if bots of it are taken out of context and examined; in order to arrive at a finding of obscenity, the work must be judged on its merits as an entire piece of work. In the Roth case, the work had some sex educational value. Justice William Brennan in the case of Roth clarified that a work could be considered to be obscene and pornographic only if such a conclusion could be reached when taking the entire work into consideration and if under current community standards, the work did not have any social value and solely appealed to the prurient interest, it could be held to be obscene. A similar case was James Joyce’s “Ulysseus”. In the case of United States v One book called Ulysseus4, the book titled Ulysseus was not allowed to pass U.S. customs on the basis of allegations of obscenity, but the protection under the First Amendment ensured that the obscenity charge was reversed. These cases have highlighted the importance of also protecting the rights and freedoms of the author and the definition of obscenity reflects this distinction, because it clarifies that to be obscene, the material must be offensive to a significant number of people. Within the UK, obscene material has mostly come to be regarded as that which is sexual in nature.(Schauer, 1982:179). In supporting the banning of offensive literature and art, the major arguments which are offered are that such works are offensive, morally repugnant, lead to undesirable activities and criminal behaviour. (Greenwalt, 1995:106). This however raises the question, how can the question of morally repugnant be determined? The standards that individual people have about what is obscene and what is not might be different; what one person might find morally offensive might be deemed by another to be true art. This is especially so in the case of religion, where some people might find any work of literature or art which comes against their beliefs to be morally offensive, but this is not to say that the authors or others who do not share those religious beliefs would also find offensive. For example, films such as The Last temptation of Christ were deemed offensive by devoted Christians, but the film was well received by other sections of the world community who did nto find it objectionable at all. The Internet has also completely changed the criteria that can be applied in relation to obscenity per se. Since the Internet has no geographical boundaries and materials posted on it can be freely accessed all over the world, this also poses the important question of jurisdiction. Which country’s laws on obscenity are to be applied in this context and which Court’s jurisdiction will be relevant and applicable, especially when the source of the originator of the material may not be completely clear? This issue rose in the case of R v Waddon5 where material that was transferred to the Internet was held to have been “published”, but the difficulty that arose was the question of how jurisdiction was to be established. In this context, the Court stated: “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 , 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). Hence, it is only when the computer in question is in England that jurisdiction can be established for prosecution in this country. There are of course, filters that are available on most computers to screen out objectionable material so that unauthorized persons, such as children, may not access pornographic material, but for adults, the question of whether or not the material is pornographic is one that can largely be determined by individual standards. What one man may consider obscene might not necessarily be obscene to another man, but might in fact, be a source of enjoyment and much relished prurient interest. With increasingly lax moral codes and sex becoming increasingly acceptable outside of marriage, a declaration of obscenity purely on the basis of sexual content might be difficult to establish because it would not necessarily fall within the standard of what a majority of the common people would consider objectionable. This raises the same issue of interference with individual liberties which has been discussed earlier. In the context of what exactly may be considered to be obscene, it is only the individuals themselves who can decide what they want to watch or do not watch, especially if they are over the age of 21 and are adults. Placing limitations and/or restrictions on materials could amount to a limitation of individual liberties. In its 1973 decision rendered in the case of Miller v California, the Supreme Court offered a definition for obscenity on the basis of three criteria, which, if fulfilled, could constitute grounds for subjecting material to State regulation. These criteria were: (a) "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."6 (www.law.ukmc.edu). As Stephanie Paul (no Date) has pointed out, obscenity laws are also being applied to the Internet, with a federal ban imposed on Internet obscenity just being declared to be constitutional in the case of Nitke v Gonzales7. The same community standards that were applied in the Miller case were also challenged in this case, by Barbara Nitke and NCSF, the National Coalition for Sexual Freedom. The Plaintiffs stated that the same definition of obscenity may not be applicable to Internet material, because in effect it would mean that any material could be found objectionable by applying the restrictive standards of the most restrictive communities in the country. Morgan has argued that restricting the transmission of Internet materials could constitute an untenable violation of the First Amendment right to freedom of speech. (Morgan, 2000). The major objection raised by the plaintiffs in Nitke v Gonzales was that the definition of obscenity was too broad and created a “chilling effect” on all Internet providers(www.out-law.com). The Supreme Court however, overruled this objection and upheld the constitutionality of the obscenity standard set out in Miller on the basis that the Plaintiffs had not established that the standard was “substantially too broad”.(www.out-law.com). It may also be noted that the Internet poses a problem where obscenity is concerned, because the Miller case defines obscenity on the basis of what a particular community may find objectionable, while the Internet transcends geographical boundaries. In the case of United States v Thomas, a couple were convicted on obscenity charges for sending computer generated sexually explicit images over the Internet.8 Under Ohio State Law for example, the Supreme Court has clarified that obscenity laws over the Internet are not intend to restrict transmission of such materials to adults and thereby impinge on First Amendment rights; rather they are intended to be applied in the case of one on one direct transmissions to under-18s (Nash, 2009). It could be argued however, that by framing such tight obscenity laws, the net result is to infringe individual freedoms because to some extent, it is difficult for a sender to specifically control who accesses obscene materials. The same argument would apply in the context of obscene literature and art. The creator of such work might not necessarily intend such material to be objectionable, or harm the sensitivities of young, impressionable persons, or indeed, those who object to obscenity. Rather, the creator of such materials might be targeting others of a similar ilk, who would share a similar perspective on obscene materials and find them titillating, enjoyable and arousing. Creativity would cease to flow freely if ever piece of literature or art was restricted by the limitations of purported obscenity. In conclusion, it must be noted that strictly applying a ban for reasons of obscenity may be justified only in cases where the material may be offensive and corrupting for young, impressionable minds, or when a majority of people would find it offensive and bearing a prurient value only. Artistic expression through art, film and literature fosters creativity and man’s progress in the past in every sphere has occurred through the radical thoughts of a few individuals who dared to think differently from others, such as Galileo and Einstein in the scientific field. It may be possible to justify a work being found to be obscene and banned when it violates community standards and has no merit in terms of artistic expression or educational value. Pornography might be an appropriate target for such banning, but it could be argued that there are also people who find pornography entertaining and interesting, and their rights to freedom and enjoyment would be violated if they were restricted access to such materials. On the basis of the above, it may therefore be argued that the UK law of obscenity may need to be modified even further in order to ensure that it takes into account the changing values and mores of the present day, especially in the context of the growing popularity of the Internet. While it has already been adapted to include the requirement that a work must offend a significant number of people before it will be deemed offensive, sexual content could still be restricted at the expense of individual liberties; hence the law may need further modification. References: Carey, Peter and Sanders, Jo. (2004.) Media Law. Sweet and Maxwell, . “Internet Obscenity law upheld in U.S.”, Retrieved November 22, 2010 from: http://www.out-law.com/page-5952 . (1995.) Fighting Words. Individuals, Communities and Liberties of Free Speech. Press, . Morgan, James, 2000. “Obscenity and the Internet: a challenge to intellectual freedom in the United States”, Libri, 50: 48-56 Nash, James, 2009. “Group: Online obscenity law too vague”, The Columbus Dispatch, October 21, 2009; Retrieved November 22, 2010, 2009 from: http://www.dispatchpolitics.com/live/content/local_news/stories/2009/10/21/copy/OBSCENE.ART_ART_10-21-09_B3_ETFEBHG.html?sid=101 Schauer, Frederick. (1982.) Free Speech: A Philosophical Enquiry. Press. RobertsonConsider whether the UK law of obscenity should be abolished or reformed in relation to literature or film. Read More