In a famous Canadian case, the Court concluded that pornography results in harm to women, and therfore to society. Unless our Constitutional Court does the same, says Joanne Fedler, feminist academic and lecturer in the law school at the University of the Witwatersrand, restrictions on the publication and disribution of pornography seems unlikely.
Fedler examined how the Constitutional Court might deal with the question of pornography in a paper delivered recently at the University of the Western Cape. Using the example of Hustler magazine challenging the constitutionality of the proposed Film and Publication bill (assuming it became an act in its present form), she set out the arguments feminists might use to defeat Hustler's claim that the bill would limit its right to freedom of speech and expression set out in S 15 of the Interim Consitution.
No right is absolute, she states. This is because of the limitations clause in section 33, which provides that a limitation on a fundamental right is tolerable as long as it is reasonable, justifiable in an open and democratic society based on freedom and equality and does not negate the essential content of the right. The right to freedom of speech and expression is enshrined in s15. However, the right to equality is protected by s8(2). In evaluating whether Hustler's claim that its right to free speech is infringed by the Film and Publication Act, the Constitutional Court would have to weigh up the two competing rights and decide which takes precedence. Fedler states that the court "does not balance rights so much as it examines the values underpinning the rights and attempts to resolve the tensions."
What are the freedom of speech values inherent in the tolerance of pornography? asks Fedler. She concludes: "It seems that the only value that the tolerance of pornography has in a democratic culture is the value of human autonomy - the value of not allowing the government to dictate to people what is allowed to be seen. This value will have to be viewed in relation to other rights and their corresponding values."
The most important feminist argument, Fedler believes, is section 8(2) of the Constitution which guarantees the right to equality. The premise is that pornography causes harm to women and is a form of discrimination based on sex. Many studies have been conducted to try and prove the causal link between pornography and sexual violence, she says, and there are conflicting results. This means that there is no conclusive evidence either way, and it seems that a lot turns on the meaning given to the concepts of "harm" and "causation". Many believe that the notion pornography is harmful is more an intuitive evaluation than a deductive conclusion.
Moreover, she cautions us that even if it could be conclusively proven that pornography causes harm to women, we should remember that harm of all kinds is tolerated by society. "We allow people to drive cars, to carry guns, to smoke," Fedler states. She also makes the point that the arguments feminists use against pornography may be used against them in different contexts. "I never want to walk into a courtroom and hear a rapist cited cite feminist works to prove the causal link between pornography and sexual violence in mitigation of his crime," she says.
The role of feminists as Fedler sees it, is to interrogate liberal analogies and show that because of existing gender inequality the harm of pornography is different from the harm of smoking or driving. The similarities between the South African Chapter on Fundamental Rights in the Constitution and the Canadian Charter of Rights provide some insight into the approach our Constitutional Court might take. In the famous case Regina v Butler (1992 Canadian Criminal cases 70 CCC) the question to be decided was whether a provision of the Criminal Code defining obscenity infringed the freedom of expression guarantee in the Charter. The Court accepted that certain kinds of material that displayed an "undue exploitation of sex" are inherently harmful. The court measured this by the "community standard of tolerance test" which is not whether Canadians would tolerate being exposed to the materials themselves, but whether they would tolerate other Canadians being exposed to them. The test turns on tolerance, not taste. "The stronger the inference of harm," explains Fedler, "the lesser the likelihood of tolerance."
How did the Canadian Supreme Court conclude that certain material causes harm or poses a substantial risk of harm? It found that even though the perception that pornography causes harm to women was not able to be proven conclusively, there is a substantial body of opinion that holds that the portrayal of people being subjected to degrading or dehumanising sexual treatment results in harm to women and therefore to society. "It would therefore be reasonable to conclude," the Court went on, "that there is an appreciable risk of harm to society in the portrayal of such material."
Fedler believes that no restriction on pornography will be permitted unless the Constitutional Court accepts that pornography causes harm to women. The objective of preventing harm goes to the core of the values of a democracy based on freedom and equality - engendering a society based on equality and non-violence. "If this argument is adopted," she states, "it seems highly probable that the South African Constitutional Court if confronted with the pornography issue will follow in the footsteps of the Butler case. The court will find that when weighed against the objective of preventing harm to women, the values which underpin pornography lie far from the guarantee of freedom of expression and appeal to a small part of individual fulfilment."