Posted: August 15th, 2013
Is the Suppression of Obscene Material Justifiable in a Free Society?
In the year 1987, Donald Victor Butler was charged in a Canadian Court for the ownership, handling, procurement, and retailing of pornographic tapes and publications, and sexual items. These consignments were handled in a store that Butler owned. Upon the case hearing and charges, Butler was released only to venture once more in his pornographic business. Once again, he and once of his workers were arrested only ten days after the setting of the second business (Kendall, 2004). The period was 1988. Butler and his business aides were accorded the guilty charge with the former being offered a cash bail of eight thousand dollars and the latter two thousand dollars. Anti-pornographic protester factions were not contented with the decision and therefore the case was re-opened in a different court. The other court offered a guilty charge to Butler in 1991. The defendant appealed in 1992 where he was rendered guilty by the Canadian Supreme Court. A year later, the Manitoba Court of Appeal overruled the guilty sentence by purporting that the arguments used were a suppression of liberal expression. Arguably as stated by Stuart Mill, suppression of obscene material is only justifiable in a free society only as it poses harm to other individuals.
Mill’s viewpoint on the liberty of expression is founded on absolutism tenets with his standpoint arguing that perfect autonomy in verbal communication and expression can only be exercised only when individuals are free to communicate fearlessly their intended messages despite the level of immorality that may be attached to it. To ascertain the sternness of the statement, Mill purports that in a scenario that requires a global decision where all individuals consent to a given perspective with the exception of one individual then the opposing person has the right to air his view to the rest of the populace (Ingram, 2006). Although the individual’s belief may constitute to an insignificant component in the decision process, he still has the right of expression. Therefore, of essence in this claim is that, despite the contribution that the individual makes or does not make in the discussion, he acts on the feeling that requires him to voice his opinion. According to Mill, total liberty should be exercised in all areas of life regardless of individual viewpoints to protect a bias culture.
Mill embraces all forms of expression as an end towards the attainment of one’s rational frontier (Dyzenhaus, et al., 2007). For instance, if an individual strongly believes that happiness is realized through squandering practices as opposed to savings and investments, then he possesses the fullest rights of practicing the given lifestyle. To other individuals, this practice is an illogical move that would only leave the person broke after a limited time. The individuals who disapprove of the spendthrift practice are however acting on their own rational limits that translate the ‘happiness’ as ‘foolishness’. Of course, the unwise individual will attain his fair share of happiness until his baseless argument is proved wrong by experiences such as bankruptcy and this realization acts as the logical frontier. On the contrary, had the individual taken to societal advice and never indulged his happy exercise, he would have to live with a feeling of oppression instituted by the lack of a practicing point (Dyzenhaus, et al., 2007). This is definitely a wrong definition of a free society. Free expression constitutes to healthy human development as it enhances self-esteem from a sense of belongingness by the right to be effective in a society.
Butler set his initial business operation in a busy avenue located in Winnipeg. Before his charge, the business was operating in normal working hours as any other business setting. It is therefore right to assume that Butler had set up the business premise with no ill feeling or motive. The operational hours and setting are as natural as the institution of a barbershop. A causal link exists between criminal operations and the covert nature they are practiced. Pragmatically, drug peddlers conduct their activities in abandoned buildings, secretive stances or in the cover of the night to conceal their illegal actions. A bank robber does not flash a gun in public as a way of priding in his activity because this is a licensed behavior to an arrest. Therefore, had Butler viewed his actions as being criminal, he would have resorted to clandestine practices like selling the items from a secret abandoned place that would possibly attain the least of attention (Helfgott, 2008). Alternatively, he would have preferred to sell the items in his home and to targeted people only because that would keep his operative away from law enforcers.
Butler’s argument in court rested on the view that he had been exercising his civil right as hinged to the practice of liberal expression. In other words, the defendant viewed pornography as an art of sexual expression that he appreciated by selling. Further, he argued that suppressing the act would constitute to a contravention of his “constitutional right to free expression,” (Kendall, 2004, p.6). The law court consented to Butler’s perspective by agreeing that the arrest and confiscation charges did actually breach his right. However, the court applied the criminal policy provision that aims at protecting the community from harmful practices. This is in accordance to Mill’s views on the practice of suppression. Mill’s focal premise of liberal expression rest on the view that, “the purpose for which power…exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant,” (Sumner, p.20).
Private and communal rights as evidenced by Butler’s case tend to have overlaps in given situations infusing elements of contention between the represented parties. Butler defended his innocence of the criminalized charges by his allegation that pornography was one of the many ways of sexual expressions. With the court, having consented to the fact that the decision is a direct violation of the expression liberty, then the only justification remaining would be to ascertain whether pornography has harmful effects on the society. Obscenity laws in Canada accorded power “to limit the sale and possession of materials that result in sexism, misogyny, and gender inequality,” (Kendall, 2004, p.6). The court conducted an investigation and appraisal of harmful effects of pornography to the society. First, some pornographic materials were found to apply forceful sexual scenes where violence was applied as a sexual stimulant to the male participants especially related to audiovisual films. The similarity in these violent sexual scenes was posited to have a proportionate increase in the number of rape cases, as the sexual scenes were categorized as sexualized rape.
Secondly, pornography promotes gender bias by promoting the demeaning and dehumanizing behavior on women. This was noted on the increased violent behavior in males towards their sexual partners and women as an effect of pornographic literature. A callous behavior pattern was evident in men that watch pornographic films and the female gender had to bear the costs and risks of the resulting behavior (Nowlin, 2003). The psychological effects of pornography on females has equally devastating effects as women tend to submit themselves to oppressive and degrading behavior from men. The justification for their low view is enhanced by the visual record where the videos promote servitude as a reflection of love. As women take a subordinate role in sexual intimacy, the notion has a trickling effect that manifests in a relationship where the females tend to attribute supremacy to the males in all issues. This view has been fortified by the finding that pornography imparts in both males and females the desire to have male children in the family unit.
Power is a strong tool within the human populace and as the women take the view that the male gender equates to supremacy, they would rather procreate males that can take care of themselves away from the parents’ watch. The same thing applies to the male gender. The authenticity of the information was accorded to the witnesses that offered their views in the case. The women attested that during a sexual relation, they have been forced to deal with disgraceful instances as they are forced to play exact roles in terms of positioning and violence cushioning as viewed within given pornographic literature. The Women’s Legal Education and Action Fund strengthened the testimonies offered by presenting video evidence of the women participants in pornographic shootouts, who were visualized as “used, hurt, abused,…being raped,…sometimes they act as if they are enjoying it; sometimes they scream, resist, and try to run,” (Kendall, 2004, p.7). This was an indication that the women were used in the production of the same videos under oppressive means.
Falling back to Mill’s doctrine, we can therefore agree that pornography is regulation is justified through due to its harm on the society, more specifically on the female gender. Note that however, pornography is viewed as an immoral practice yet it may or may not be regarded as obscene depending on the effect that the pornographic material has on the viewer. Many theorists agree that pornography constitutes to films or written material that are produced with the objective of effecting sexual stimulation in an individual. Obscenity on the other hand is a resulting feeling that leaves an individual in abhorrence, disgust or upset (Dyzenhaus, et al., 2007). Therefore, as an individual watches pornography with the intention of sexual stimulation, then the material is not termed as obscene. If the individual is disgusted by the film, then the material is viewed as obscene. Butler’s case can be termed as both an immoral and obscene act as witnesses offered the detrimental effects of pornography. The court was able to accord a guilty plea to the defendant by the legal power vested for cases related to obscenity as it leads to “dehumanization, humiliation, sexual exploitation, forced sex, forced prostitution, physical injury, child sexual abuse, and sexual harassment,” (Kendall, 2004, p.7).
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