The Constitutional Court is about to decide on the legality of banning porn, writes Justin Pearce
Pornography will be in the dock next week when the Constitutional Court considers whether a section of the Indecent or Obscene Photographic Matter Act of 1967 should be scrapped in terms of the free speech provisions and other constitutional requirements.
The section of the Act outlaws the possession of “obscene or indecent” photographs, films and
Yet, for all the heat of the arguments which will be aired around the issue, one thing seems clear: we are not going to go back to the old days when anything remotely titillating fell foul of the law, but neither will we have a situation where there are no restrictions at all on erotic material.
The applicants, three individuals who face charges under the Act, state in their heads of argument that the court is likely to “protect sexually explicit erotica portraying nudity and sexual interaction between consenting adults without agression, force, violence and abuse”. In other words, the applicants are not taking an extreme libertarian position, but acknowledge the need for certain types of limitation.
And the state, which, in the persons of the Minister of Safety and Security, the Minister of Justice and the Witwatersrand Attorney General, is named as the respondent in the case, acknowledges in its heads of argument that its previous role as the arbitrator and protector of the people has gone for good.
Many of the arguments by the respondents, realising that the days of the state as moral torch-bearer are over, concentrate instead on the arguments that pornography encourages sexual violence. Against this, the applicants argue that the existing legislation which forms the object of next week’s Court scrutiny has nothing to do with preventing violence: “The Act is concerned with moral disapprobation,” they contend.
Two cases, both arising from prosecutions under the Act, have been referred to the court, and President of the Court Judge Arthur Chaskalson has ordered that two cases be heard simultaneously, since both take issue with the same point of law.
Stephen Roy Curtis was arrested by a policeman who claims to have followed up an advertisement for erotic videos, and met Curtis at a pre-arranged place to which Curtis is claimed to have brought the videos. Patrick and Inga Case suffered a raid on their home, where police allegedly seized over 100 videos.
Fundamental to the applicants’ argument is the freedom of expression provision of the Constitution, which may be limited only in the interests of a free and democratic society. The onus is on the state to prove the need for such a limitation.
The applicants also argue that the Act as it stands violates the constitutional provisions for religious equality, since it is predicated on the need to protect “a Christian way of life”. The Act is also said to be unconstitutional in discriminating against homosexuality, and vague in its wording by using subjective and morally loaded terms such as
In responding, the state’s main concern appears to be the “tidal wave” of pornography which would assail the public if the present legislation were thrown out without being replaced with alternative laws. It recommends at the very least the application of section 35(2) of the Consitution, which allows for the limitation of those aspects of an old law which fall foul of the Constitution, rather than scrapping the law
New publications legislation is being drafted, and the state seems to be concerned with preventing a legal vacuum before the new laws are passed by Parliament.
The state also raises what it perceives as opposition to pornography by a majority of South Africans.
The case before the court could also see the end of the Publications Control Act, or part of it. While both Curtis and the Cases were charged under the Indecent or Obscene Photographic Matter Act, the applicants are arguing that the Publications Control Act is so closely intertwined with the Indecent or Obscene Photographic Matter Act that if one is unconstitutional, then the other must also inevitably be scrapped. For example, material which is deemed “not undesirable” by the Publications Control Board in terms of the Publications Control Act is exampt from the Indecent or Obscene Photographic Matter Act. The state contests this, saying that the Acts are sufficiently independent to stand alone.
The state does, however, acknowlege the vagueness and inconsistencies in the present legislation, which form an important strand in the applicants’ argument.
The Christian Lawyer’s Association, which has submitted arguments as an amicus curiae, makes much of the alleged harm done by pornography, drawing, ironically enough, on feminist arguments which have a philosphical basis far removed from Christianity. The Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand, also an amicus curiae, challenges the notion of a causal relationship between pornography and sexual violence, saying that there is no conclusive evidence either way on the issue.
A group of women’s organisations has submitted arguments as an amicus curiae, also drawing attention to the harm that pornography can do, but defining pornography in narrow terms: that material which sexualises violence against women.
The state also examines the philosophical basis of the need to protect free speech. In common with the Christian Lawyers’ Association, the state argues that there are different kinds of speech which merit different degrees of protection: free political discourse is an unassailable right, but expression on the level of pornography can justifiably be limited if this is in the common good.
Cals opposes this argument on the basis that, with South Africa’s history of censorship, all kinds of expression should be protected. Cals argues that if there were proof of the harmful effects of pornography, there would be justification for censoring it — but, in fact, the causal relationship between pornography and violence is widely disputed.
See also Abuser’s guide in this issue