An Analysis of the Arguments for and against the Censorship of Pornography
The issue of censorship in Canada is one that, as in the U.S. And the U.K., has inspired a significant amount of debate. There are many facets to this debate, which range from the rights of free speech to the harmful effects of obscenity in the public forum. One of the biggest targets of censorship is pornography. This paper will examine the arguments for and against the censorship of pornography from a Canadian legal perspective, and it will also provide a brief comparison of Canadian law to U.S. And U.K. laws.
A Working Definition
Before condemning or even censoring pornography, one must have a definition of it. Perhaps the most famous modern definition of pornography comes from the American court case Jacobellis v. Ohio, in which Justice Stewart stated, "I can't define pornography, but I know it when I see it" (West). This definition (or lack thereof) may seem startling coming from a Justice of the court -- nonetheless, it accurately reflects the level of intellectual public scrutiny over the issue of censorship: when it comes to pornography in the Protestant States of America, one has no recourse to reason or scholastic thought -- one has only his "guts" to go on.
Canadian law is not much better: "the term 'pornography' occurs only in section 163.1 of the Criminal Code, which provides a definition of 'child pornography.' Pornographic material featuring consenting adults is regulated through the 'obscenity' provision of the Criminal Code (section 163). In other words, unlike child pornography, pornographic material involving consenting adults is legal in Canada if it is not deemed to be obscene" (Casavant, Robertson). Again, what passes for definition is anything but: the questions remain vague and the law only ever speaks of pornography specifically when it involves children, which at the time of this writing remains a taboo and unacceptable form of pornography.
Yet, what is pornography? Caroline West provides us with the etymology of the term 'pornography' by stating that it "comes from the Greek for writing about prostitutes." However, bringing prostitution into the discussion may be deviating from the subject (to a degree; however, this paper will indeed discuss the matter as it relates to censorship from the perspective of ancient thinkers like Augustine). What is considered to be pornographic today is any material (printed, filmed, recorded) that is deemed to be sexually explicit. Of course, even this phraseology is elusive. Films may be sexually explicit -- but are they pornographic? Pornography carries with it a connotation of being produced solely for the purpose of arousing sexual desire.
This connotation is important to bear in mind as we examine the arguments for and against pornography, because underlying the arguments is an important idea. That idea is this: if a State has the right to govern (which is to say, has the right to see that all things function toward their legitimate end), then it has the right to declare certain behaviors legal and illegal. Deciding upon legitimacy becomes the issue. The debate then centers upon this point: does pornography direct the sexual impulse to its legitimate end -- or is it inherently destructive in that it stunts the natural function of the sexual impulse.
Such may be considered to be the true question at the heart of the matter. Yet, pundits from around the world have various views on pornography that attempt to politicize the matter. As Justice Stewart himself shows, the subject is one that hardly bears scrutiny -- whether that is a consequence of Puritanical heritage, or a the consequence of an unreasoning mind we will not speculate. Rather, we will now turn to the arguments themselves, first discussing those which are against the censorship of pornography.
Arguments against the Censorship of Pornography
Wendy McElroy takes a "pro-sex" feminist position when she advocates the usage of pornography: "Pornography benefits women, both personally and politically. It provides information on at least three levels: 1) it gives a panoramic view of the world's sexual possibilities… 2) it allows women to 'safely' experience sexual alternatives and satisfy a healthy sexual curiosity… 3) it offers the emotional information that comes only from experiencing something either directly or vicariously." These three points make up the thesis of McElroy's XXX: A Woman's Right to Pornography -- and their objections are rooted fundamentally in the philosophy of the 18th century pornographic-rights advocate, the Marquis de Sade.
Sade provided the first legal context for pornography during the Reign of Terror in Paris, France, when he inverted the argument of Augustine that a man has as many masters as he does vices. Virtue (at least in the traditional, or Aristotelian sense) was for Sade akin to vice; and vice was virtue. Or to put it differently, Sade promoted sexual slavery not only because he saw it as a powerful tool for political control but also because he saw it as the overturning of the old world order.
In Sade's own time, pornographic works were spread and that which was deemed at one time obscene was now celebrated as art: Shelley and Byron, for instance, famously enjoyed one of Sade's pornographic works during their famous vacation retreat during the height of the Romantic Era. What this demonstrates is that "the obscenity standard is flexible -- it responds to shifts in public acceptance of explicit material" (Casavant, Robertson). In Canada no report emphasizes this point more than the 1985 report of the Special Committee on Pornography and Prostitution, which "made several significant findings on pornography in Canada. The Committee declined to give an explicit definition of what it considered 'pornography,' principally because there is no accepted definition in the community at large" (Casavant, Robertson). The very term pornography, therefore, is something of a misnomer: in modern times (whether in Canada, the U.K., or the U.S.) it appears to have no definition. How can this be so? Modern culture simply and explicitly refuses to identify that which promotes sexual arousal in a negative light.
Why is there a reluctance to portray pornography in a negative light? According to McElroy, there is nothing unnatural about pornography. In fact, it helps stimulate the sexual imagination. Since, as McElroy implies, sex is a natural function of the human body, there is no reason to censor material that appeals to human nature. This is the fundamental argument against the censorship of pornography. When it comes to Canadian criminal law, however, the argument focuses on obscenity -- a point that further complicates the issue (for if the courts have trouble defining pornography due to lack of common cultural agreement, what makes it able to define obscenity?).
The 1985 report issued by the Special Committee on Pornography and Prostitution attempted to decry pornography because it fostered "inequality" among the sexes. Without getting into the parameters of that judgment, we will confine ourselves to examining the reason why it failed tackle the heart of the matter, which is whether pornography directs the sexual impulse to its legitimate end. The reason it failed to do so is because that question, which is at the heart of the matter is not tackled by modern scholars or researchers: it is a point that is wholly logical. In a world of empirical analysis, logic and reason are relegated to the past; "science" and the "virtues" extolled by the French Revolution are given primacy of place. The argument cannot be about legitimate function; it must be about "equality" and "decency."
McElroy gets closer to the real argument than anyone else because she at least asserts the idea that pornography appeals to an element in human nature. Her argument, of course, is that pornography should not be censored. However, in Canada, the Obscenity Standard acts as a buffer between reason and result when it states that "any matter or thing is obscene where a dominant characteristic of the matter or thing is the undue exploitation of any one or more of the following subjects, namely, sex, violence, crime, horror, or cruelty…" (Casavant, Robertson). The bill is laughable mostly because each and every one of those subjects is readily available in the mainstream media in the U.S., U.K. And Canada -- yet no one condemns or censors it as "exploitation." What is censored, of course, is radio (at least in the U.S.). But that, again, is a matter that would require more attention than this paper's scope is able to give.
The only justifiable reason for censoring pornography is not that which Canadian criminal law provides (which is itself only and primarily concerned with "child pornography" -- because this is a subject that all citizens can agree upon). The argument for censoring pornography comes from the idea that it stunts the natural function of the sexual impulse.
This argument contradicts McElroy's of course. But E. Michael Jones refutes her position thus: while McElroy argues in favor of nature (ala Rousseau), Jones for nature (ala Augustine). Rousseau made claims such…