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Pornography: Morality, Freedom, Equality

Proposal for Amending the Prohibition Against Publishing and Presenting Obscenity and Related Offenses

Policy Paper No. 41

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  • Cover Type: Softcover
  • Number Of Pages: 198 Pages
  • Price: 45 NIS

This position paper explores the question of whether there is room for government intervention in the creation, distribution or consumption of pornographic publications in a democratic state that honors the rights and freedoms of its citizens, and if so – how? It deals with theoretical aspects alongside a more practical discussion, and presents a concrete proposal for changes in the existing legal situation.

Pornography has been with mankind for quite some time, and with it a dispute about the proper social and legal regard for this phenomenon. In recent decades, the traditional argument between the conservative-moralistic camp, which opposed pornography on moral or religious grounds, and the liberal camp, which supported pornography in the name of freedom of expression and individual liberty, has been joined by the feminine-feminist voice – which also joined the opponents' camp, in the name of the demand for equality between the sexes and concern for the status of women.

The dispute about pornography raises difficult theoretical and philosophical questions, and touches the core of various liberal and feminist theories, perceptions of sexuality and relations between the sexes, as well as issues in ethics, semiotics and even the philosophy of language. Pornography arouses many legal disputes, in the sphere of constitutional interpretation, criminal and tortious liability, and more. It is also closely bound up with empirical problems, regarding the ways of measuring and assessing the influences of pornography on behavior and attitudes, and has an effect on questions of education and family life. It is therefore no wonder that the controversy over the issue is still very much alive.

This position paper focuses on the legal perspective. The question that will be discussed here is not whether pornography should be consumed, but rather whether in a democratic state there is room for government intervention in the creation, distribution or consumption of pornographic publications, and if so – how. We will thus deal with theoretic aspects alongside a more practical discussion, and we will make a concrete proposal regarding desirable changes in the existing legal situation.

What's Wrong with Pornography?

The starting point of this discussion is the basic freedom of the individual, and therefore it is the prohibition that requires explanation, and not the license. On one side stands the conservative-moralistic outlook, which emphasizes the clash between pornography and religious views (whose source is St. Augustine) about the connection between sex and childbearing, or the link between sexual relations and romantic relationships. In this vein, pornography is perceived as an assault on social mores, religious feelings and accepted morality, as well as a mechanism for weakening the institution of the family and an expression of childish, anti-social, irresponsible and lightheaded behavior.

On the other side stands feminist opposition, which focuses on pornography as humiliating and debasing women, and as a contributor to women's inferior standing in society. According to this attitude, pornography lies about women, contributes to negative attitudes against them and even to violence and rape, and serves as a discriminatory mechanism for perpetuating male domination and inequality between the sexes. The problem with pornography, according to this position, is mainly political – pornography harms the feminist movement's struggle for equality.

And What's Good About Pornography? Pornography and Freedom of Expression

Defenders of pornography go further than rejecting the attacks on it. They claim special protection under the principle of freedom of expression, which makes publishing pornography a right that should be defended, even in the face of opposing interests. Is it indeed worth treating pornographic publications as a form of expression? On the assumption that it is, the rationales that stand at the basis of freedom of expression are examined for relevance to expressions of pornography, which to all opinions do not rank among the most important expressions. Despite this, our discussion shows that most of the reasons do indeed apply to pornography as well, if only partially. Through a study of feminist criticisms of pornography, our main conclusion is that the grounds for the principle of freedom of expression apply in varying fashion to various forms of pornography: they apply to a greater degree to pornography that is created for and by sexual minorities (such as homosexuals), and to a lesser degree to expressions that include criminal offenses (such as violence towards women or children, etc.). This gives rise to a need to establish different arrangements for different forms of pornography.

Conclusions

The discussion leads to the conclusion that some of the criticism of pornography does not apply at all to some expressions of pornography. Moralistic criticism, which relies mainly on the morality accepted in society at a given time, is no longer suitable for imposing broad restrictions on sexual expressions. Feminist criticism also applies to a greater extent to pornography that includes violence or brutality towards women, to a lesser extent to pornography that contains contents that humiliate or clearly dehumanize women, and to a most limited extent to a broad segment of pornographic expressions, as they are characterized in daily language.

The conservative arguments themselves are also not necessarily convincing, and there isalso room to wonder about the place of social morality in the context of legislation in a democratic state. Even with regards to feminist criticism, it seems that some of the arguments are obscure and difficult to implement, while others are not confirmed by experience. We also saw that on both thetheoretic and the practical levels, a progressive feminist cover can often provide camouflage for moralistic attitudes that aspire to maintain practices of societal oversight on sex and sexuality, and in any case it provides tools that are liable to be used by the moralistic majority against sexual minorities of various types, a concern that has proven to be real by the Canadian legal experience.

Our conclusions indicate a need for broader defense of female participants in the pornography industry, of a narrow area in which there is room to protect the sensitivities of a captive audience against harm from pornographic publications, and of a clear and enforceable arrangement of limiting children's exposure to expressions of pornography, which is jointly supported by moralistic, liberal and feminist considerations. To that end, the kind of publication that is prohibited and the scope of the restriction should be clearly defined, in light of the nature of the value protected by the relevant prohibition.

Regarding a general ban, we believe that the moralistic and feminist arguments are not sufficient grounds for imposing sweeping restrictions on the freedom of an aware and consenting adult to distribute and consume pornographic publications. It is certainly legally possible to prevent harmful actions and deeds (such as discrimination in employment, sexual harassment and rape), but there is no room for using government power in order to direct thoughts and to instill attitudes perceived by the government as correct and justified, in a society that respects the individual's autonomy and recognizes his/her equal and sovereign standing. Having said that, there is room to prohibit publications that were produced through criminal activity, or regarding which there is solid evidence to indicate a causal link to violence and rape.

What Can Actually be Done? On Limiting Pornography in the Internet Age

Moving to the practical level necessitates grappling with technical limitations of legislation and enforcement. A common argument is that the prevalence of pornography on the Internet, and the Web's unique attributes, render the discussion futile. The reason for this is that pornography's availability on the Internet, along with the ability to consume it anonymously and with a minimal financial investment, has broadened the exposure to pornography among the public, including among minors. In the sphere of legislation and enforcement as well, the Internet's international, decentralized and virtual nature made it difficult to subject its activity to formalized legislation and to enforcement and judicial activity.

Each phase in the pornographic publication chain – from the content provider, to the service providers, access provider, and even the various search engines or indices, up to the end consumer (through increasing education and ensuring the availability of suitable filtering means) – is a candidate for imposing restrictions that would break this chain. True, these possibilities also contain many problems – technological, practical and legal. The development of international enforcement means regarding the Internet, in light of the commonality of the problem to various countries and to various legal spheres (such as prohibiting slander or violating copyrights), enable us to be optimistic regarding future solutions to this problem.

What is Actually Being Done? Israeli Law and the Changes Required

A survey of the legal situation in Israel, beginning with the general prohibition against distributing obscene material, through the restrictions on public display and movie and television broadcasts, leads to the conclusion that the general prohibition in its current form is outdated and too broad. This also leads to an absence of enforcement, thereby harming the protection of legitimate interests such as protecting children. The concept of "obscenity" used in the law is ambiguous and ill defined, such that it harms the principle of legality and is liable to lead to arbitrary and discriminatory enforcement. In addition to all this, the law lacks appropriate regard for feminist arguments against pornography.

The rest of the legislation on the subject also lacks coherence – differences in the scope of protection in the various laws do not rely on material distinctions. The limitations regarding public display are too general and inclusive, and the entire law lacks solution for improper elements of exploitation that are liable to accompany the production of pornographic publications. This leads to the conclusion regarding the necessity of amending the main offense and the related offences. For the purpose of comparison and inspiration, we turned to other legal methods in the Western world, and examined the arrangements employed in them.

And What Should Be Done? Guidelines for Action

The values that were found worthy of protection (on various levels) are a person's physical well-being and sexual freedom, the sensitivities of a captive audience, the education of minors, and respect for women and their equality. Of these, there are values whose protection requires imposing a general prohibition, while protection of others will lead to a relative limitation only. Occasionally, there is not even a need to use criminal law, in light of the possibility of using alternative means such as an administrative arrangement and a civil claim by those who have been injured.

Our conclusion is that a general prohibition is only justified so long as it is meant to protect physical well-being and sexual freedom. From one direction it is intended to protect those who participate in the pornography industry (and especially minors) against exploitation, violence and rape. Like the prohibition against possessing stolen property, preventing the use of the fruits of the offense would also damage the foundations of the original form of the offense. From another direction, the general prohibition rests on the assumption regarding a reasonable possibility that exposure to violence, rape or pedophilia increases this tendency among viewers, and encourages criminal behavior.

Pointing to a causal link such as this is problematic and unclear, and is liable to lead to under-enforcement, or worse yet – to over-enforcement, which would rely on the ill-defined prohibition in order to promote moralistic attitudes. Therefore, the proposal is to prohibit only publications that present activity harmful to physical well-being or sexual freedom. That is how any publication whose production includes such action, as well as publications for which the probability that they would encourage criminal behavior is especially high, would be perceived. Regarding a publication that presents virtual activity (staged, or the result of computer imagery), it is proposed that the prohibition be limited to include those pornographic publications viewed as presenting real violence or rape. This way presents a clear barrier to the slippery slope on which an offense meant to protect physical well-being is liable to become a tool for promoting and enforcing moralistic attitudes. In any event, the prohibition would be circumscribed so as not to include the showing of adults who entered into the violent system of their own will, nor would it extend to a publication that has social value exceeding the danger of publication.

The nature of the sexual expressions gives rise to a legitimate interest by individuals to protect their sensibilities. Prohibiting the expression does not stem from this, but rather a simple obligation to mark and declare, which also dovetails with the aspiration to limit the viewing of such publications by minors. As for the question of billboard advertising, preserving the private and communal rights of cultural minorities in Israeli society requires legislation, though the broad and sweeping criminal offense should be converted into an administrative arrangement that would combine a more measured administrative sanction with decision-making and advisory mechanisms that are more sensitive to various local parameters, to enable the creation of a flexible arrangement suited to various communities.

Regarding the limitation on movies, the distinction between the private and public spheres is not a geographic one, but rather depends on the voluntary nature of the participants' participation. Therefore, beyond being subject to the general offense, movie theaters would be required to mark and to notify the public regarding the contents shown in a movie, as well as to prevent the entry of minors to see inappropriate movies. To that end, we recommended bolstering the activity of the body responsible for rating and marking the movies, in order to make sure that there is responsible and accurate information.

As for television -- its unique quality, its penetration into the private domain and the passivity involved in consuming this medium -- a separate discussion is needed. Our conclusion is that there is no ground to limit adult viewing of pornographic broadcasts in the pay-per-view method (contrary to continuous channel broadcasts), which requires consumers to make a conscious and informed decision if they seek to view such broadcasts, and even involves payment. This viewing method creates full equivalence between viewing television broadcasts and renting a videotape from the nearest store, and neutralizes the characteristics that distinguish between television and other forms of distributing pornography, especially when discussing cable broadcasting, which is not a public resource. Assuming that it is reasonably possible to overcome the concern over minors being exposed to such broadcasts, it seems that imposing a sweeping prohibition upon them is uncalled for. Such an arrangement does not infringe on the choice of someone wishing to watch, or on their autonomy to decide as they wish regarding what is fitting and what is offensive, but rather forces them to decide in a positive way that this is what they want, each and every time that they indeed want it.

Regarding limiting children's exposure to pornography, an arrangement that takes into account the child's age is necessary, in order to protect the values worthy of defense but at the same time to refrain from creating an overly puritanical arrangement. It is suggested that limits be gradually reduced as the child's age increases, in order to protect the sexual education of minors, and to prevent adoption of improper perceptions and misogyny. The various standards would apply to minors from age 12, 16 and 18 years. Along with that, we noted the need to broaden the enforcement of such a prohibition, after it is reduced to its justified dimensions.

Along with this, there is an acute need to expand the tools that would make it possible to contend with the exploitation of female participants in the pornography industry. To that end, we proposed widening the application of the prohibitions against pimping and trafficking in human beings for purposes of prostitution, in a manner that would also encompass exploitation or trafficking in women for purposes of pornography. Our conclusions are mainly expressed in concrete proposed legislation, which appears as an appendix to the position paper.

This position paper is not meant to wind up the dispute, and certainly not to point to the fitting personal attitude toward pornography. It is only meant to outline the manner in which regulating pornographic expression should be addressed by the state in a constitutional democracy. The paper adds its voice to the host of voices being heard on the issue. It is our hope that it can make a certain contribution to this important and interesting discussion.