Pornography and obscenity

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The matter under consideration in this report is that roughly designated by the words pornography and obscenity.

Our Committee is well aware that the issue of the suppression of material deemed pornographic and/or obscene is part of a larger subject, namely freedom of communications in a self-governing or democratic society. For practical reasons, mainly the pressure of time, the Committee has separated pornography and obscenity from that larger subject of which it is an integral part. However, our views on the issue at hand stem primarily from principles which we hold concerning the nature, function and value of the institutions of free communications in our society, of which more will be said later.

Under the title “censorship” we include methods of suppression which operate post and well as those which operate prior.

There are four methods of prior censorship operative in Canada and British Columbia:

  1. Canada Customs authorities may seize and destroy goods (books, printed paper, drawings, paintings, prints, photographs or representations of any kind) of a treasonable or seditious or of an immoral or indecent character.

    Interpretation and enforcement are a matter of the widest discretion for the Customs officials No list of “banned” titles, etc. is available to the public.

  2. The Post Office Act (this is with reference to provisions of the Criminal Code which make it an offense to use the mails for the purpose of transmitting or delivering anything which is “obscene, indecent, immoral or scurrilous”) provides that the Postmaster General may prohibit use of the mails by any person who by means of the mails is “committing or attempting to commit an offense.” An order of the Postmaster General may prohibit delivery of all mail directed to the person in question or mailed by that person. The prohibition order may be revoked or made final by a Board of Review.
  3. The British Columbia Moving Pictures Act sets up a “Censor” to review and prohibit in whole or in part films which he decides are objectionable. He is given general instructions to prevent the showing of films suggesting, among other things, “lewdness, indecency, or the infidelity or unfaithfulness of husband or wife.” The discretion of the Censor is untrammelled, allowing him to range over the widest possible area, including pictures “which he may consider injurious to morals or against the public welfare, of which may offer evil suggestions to the minds of children, or which may be likely to offend the public.”

    The Censor and the Police are given power to invade premises, seize and dispose of films, destroy advertising material and pre-censor advertisements. The Censor has authority to lift motion picture licences and to order summary conviction proceedings.

  4. The Municipal Act and the Vancouver Charter are substantially the same in content. The Vancouver Charter provides for the appointment of a Chief Licence Inspector who has power to suspend summarily for any period of time the licence of a person deemed by the Inspector to be guilty of “gross misconduct.” A similar provision is found in the Municipal Act.

The Inspector has the power to determine the license-holder’s guilt of “gross misconduct.” The term “gross misconduct” is open to interpretation by the Inspector. Through this authority the Inspector is able to censor theatrical performances or show which he considers to involve gross misconduct. The license-holder may appeal to the City Council; however, by the time the appeal is heard the damage, at least financial, may well be done.

It was in exercise of this authority by the Vancouver Inspector that comedian Lenny Bruce’s show was closed down in the summer of 1962.

Our Committee opposes these or any other methods of prior censorship operative in Canada or British Columbia. Our general argument will be presented below. It should be noted, however, that even if one did not oppose prior censorship in principle, one should still oppose these instances simply on grounds of their outrageous grant of arbitrary authority and discretion, placed, with the exception of the movie censor, in purely administrative hands.

The chief method of post censorship operative in Canada and B.C. is that following enforcement, or possible enforcement, of provisions of the Criminal Code.

For the sake of brevity we shall not set forth the relevant provisions of the Code. It is perhaps sufficient to note in a general way that the Code makes it an offence to print, publish, distribute, or circulate any obscene written matter, picture, model, phonograph record or other thing whatsoever; to exhibit publicly a disgusting object or indecent show; to sell or expose to public view or to have in possession for that purpose any obscene written matter, picture, model, phonograph record or other thing whatsoever. There are other odd provisions in the Code dealing in a like manner with the subjects of contraception, restoration of sexual virility, and curing venereal diseases or diseases of the generative organs! Similar provisions have been added dealing with crime comics. There is a special section of the Code dealing with “immoral theatrical performances;” the audience are not possible offenders, but all others connected with such a performance are.

Penalties on conviction for the above offences need not be merely nominal. Motives are irrelevant with regard to the offense, as is ignorance of the nature or presence of the offending material. There is a possible defence to do with “serving and not extending beyond the public good.” However, the significance of that defence is unclear, even doubtful. Mere possession of the offending materials does not appear to be an offense.

With such encompassing provisions in the Code it becomes plain that much depends upon the meaning and tests provided for the central idea, namely the idea covered by the word “obscenity,” its synonyms and variants. The Hicklin rule, enunciated in England in 1868, until recently provided the major test. It reads as follows:

The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.

The Hicklin rule can scarcely be judged too harshly, or be repudiated too firmly. Its two major, but not sole, defect are these, that it allows, if it does not demand, that the standard for the community be set by reference to its weakest and/or youngest members; and the question whether material tends to deprave and corrupt is one involving the subtlest mixture of fact and value, to which a level of knowledge and reflection possessed by few is requisite if reasonable answers are to be provided. Yet the rule and its application (until recently) have in no way guarded against answers being based upon mere prejudice, ignorance, platitude, emotion, and a host of other inadequate and irrelevant considerations.

The Hicklin rule was law in Canada until the Code was amended in 1959, whereby a publication in deemed obscene if a “dominant characteristic” is “an undue exploitation of sex.” In itself, the amendment is no improvement except that it allows what courts have since interpreted it to mean, i.e., that the work in question must be judged as a whole, not on the basis of isolated passages taken out of context. That modest improvement has been supplemented by other court action not traceable specifically to the amendment, but perhaps made possible by it. It has been held that it is desirable for the court to hear qualified experts as to the publication’s artistic and literary merits, and that the standards of “decency” which prevail in the community must be applied, presumably, therefore, not standards derived from the weakest and/or youngest members of the community.

Other important features of legal interpretation of obscenity cannot be treated here. In any case it seems fair to say that as a result of the amendment and its interpretation, a more liberal view is being taken of the matters in question, roughly following the pattern of interpretation developed earlier and still developing in the United States (following Judge Woolsey’s decision in the Ulysses case). There is, however, some doubt whether the Hicklin rule is still applicable in Canada, in whole or in part, and the more liberal developments provided by the amendment and its interpretations in recent years are not, as they stand, unambiguous or definitive.

It is difficult to say anything very specific about either the quality or the frequency of enforcement of these provisions of the Code, or about the prior censorship operation of the Customs and postal authorities, movie censors and city license inspectors discussed above. One thing, however, can and must be said—that the effect of all these provisions cannot be measured simply by the frequency of their enforcement, as the latter might be judged by arrests, trials, convictions, or publicity. The possibility of enforcement of such blanket provisions surely has the effect of suppressing, of censoring. Just how much effect cannot be said with any precision.

One important observation is in order as we turn from the status quo to arguments against it: It would seem reasonable that in a community claiming to be self-governing, the burden of proof should rest on those who press the need for suppression, censorship, or other encroachments on freedom. Yet in the case in question, roles have been reversed, and we must bear the burden of knocking down the arguments of those who support suppression of pornography and obscenity. Before doing so, however, something more must be said about the powerful presumption which should exist favouring freedom, i.e., non-suppression, in a self-governing body.

That presumption pertains particularly to freedom of the mind. It has reference to the free access to ideas, to the untrammelled advocacy of the programs, policies or actions following upon ideas (especially, but not only, when the programs, policies or actions are not themselves criminal.) Freedom of communications (in all the ways in which we communicate with each other) is a vital part of the very substance of self-government.

Moreover, the presumption in favour of freedom of communications must be held at the same time that one recognizes that it carried potential danger. Yet there can be no hedge against that danger if we wish to retain (or to create) self-government in its full measure. The ideas which people have and advocate may well be dangerous. Individuals may act upon them, upsetting cherished ways, institutions, and values as they do so. But presumably we have already recognized that danger and have chosen to embrace it in the name of self-government, rather than embracing the other dangers and disabilities which attend alternative ways of governing.

Self-governing individuals may harm themselves, they may even become depraved and corrupt as they govern themselves. But not by reason of their freedom… merely through it. There are other forms of depravity and corruption possible and we believe that they are worse, both in risk and in fact, than the ones we run through our commitment to self-government.

That is the principle case lying behind the presumption in favour of freedom. We see no reason why it should not apply to the question of obscenity as it does to freedom of communication in other areas, to freedom of the mind in general. And there really is no reason why it should not apply except that we have been foolishly beguiled into the false belief that the nature and gravity of the harm alleged to be present in obscenity warrants an immense abdication of the freedom of the mind. That false belief carried with it another, namely that we can sensibly carve up the realm of ideas into those which can and those which cannot be freely communicated, and that this carving can be done without essential damage to self-government. That we should accept that proposition only indicates how narrowly we understand a democratic system of government.

Furthermore, the belief that obscenity constitutes a danger of such magnitude as to warrant wholesale suppression is not only false, it is ironically absurd. For whatever the harm found in them, it hardly approaches the harm latent in the free communication of ideas with a vast range of other matters (political, economic, military, social, etc.). Yet there we suppress with far greater caution, and resist suppression with far greater vigour.

And now to the only argument which seems to support the need to suppress obscenity. Roughly the argument is that there is some kind of causal connection between the obscene material (whatever its form) and some kind of harm (e.g. depravity and corruption), produced in those who are exposed to it.

Much needs to be said about that argument. The first thing to be said is that the causal relationship between the material and the harm is only alleged. No study we have found or heard of remotely establishes the claim with anything resembling even a weak scientific argument based on evidence. The causal connection may exist. It may be plausible, but mere plausibility is no basis on which to rest portions of the Criminal Code and a number of other suppressive institutions.

That the claim of a causal connection between obscene material and harm lacks solid support is not surprising. Relationships of that character are most difficult to verify, and not only because the effects are subtle and variable. The difficulty in verification is really more a function of the fact that one doesn’t know what to look for when considering the kind of harm which it is claimed obscenity produces. That ideas, however they are conveyed, produce some effect, some change in those who meet them is a proposition too obvious to require support. But that obscene materials produce effects which are harmful does not follow from the previous proposition. They may excite, they may incite, they may produce psychological and physiological effects of many kinds… but establishing the existence of those effects does not establish the existence of harm. And harm is necessary; otherwise this argument collapses.

Thus we turn to depravity and corruption as being the kind of harm produced. But what we find here is only more of the same thing, i.e., excitement produced by obscene ideas, perhaps even incitement to act upon those ideas. But excitement or actions following incitement, if the actions are not themselves criminal, does not constitute depravity or corruption in any sense of the terms which the law should control or concern itself with.

Since it is rarely claimed, and never proved, that exposure to obscene material leads to criminal actions, one must conclude that the harm (depravity and corruption) which it produces is the excitement associated with exposure itself, or the actions which exposure leads to. Since the actions (sex acts of various kinds, for example) are not criminal, they can only be inappropriate, or offensive to good taste by reason of their form or frequency. That may be lamentable, even be worth correcting, but it isn’t the kind of solid ground on which alone institutions of suppression can be justified.

It is sometimes argued that circulation of obscene material fosters a preoccupation with obscenity, and therein lies the harm. Even if that argument were true, we would not find it compelling. But it may well not be true, since some social scientists argue that the harmful preoccupation probably exists prior to the obscene material. The material caters to the already existing harm… it would not appeal otherwise. Thus these scientists argue that obscene material is not the cause, but rather the symptom of harm, which cannot be successfully treated by suppressing the symptoms.

Moreover, it has been conjectured by some social scientists that obscene material provides a socially desirable, or anyway acceptable, outlet for obscene urges, etc. which could take genuinely harmful, i.e. anti-social directions if they were frustrated by a denial of access to the material. We do not cite the ingenious and plausible conjecture as an argument favouring obscenity, for it may well not be true. We cite it in order to illustrate just how ignorance and confusion permeates the whole question of the relationship of obscenity to harm. The general public which can make no claim to real knowledge concerning the subject is convinced that obscene materials are harmful. On the other hand, portions of the scientific community, which can at least claim to have informed opinion if not knowledge, are doubtful that obscene materials are harmful, and even conjecture that they may be beneficial from certain points of view.

Now when that is the state of affairs, wisdom indicates a policy of no action. When the claims of a presumption for freedom are added to what wisdom indicates, the case for no action overwhelms the case for action. Yet action is what we get, laws and institutions suppressing obscenity abound, and there is constant pressure to expand them. All this resting on what is believed but not know (that obscene material causes harm) and in the fact of at least some informed opinion to the contrary. Perhaps “ridiculous” is the word to describe such a situation.

One final comment with regard to the relationship between obscenity and harm. All social scientists whom we have read on the subject agree that “the problem” really lies deep in our society, and that the open or illicit circulation of obscene material is a mere reflection of the problem. The problem is traceable to misbegotten, unhealthy, frustrating yet deep-seated attitudes concerning sex, etc. present throughout the community, which make it practically a sure thing that many of us will seek out obscene materials or practices. Mere negative steps, like the suppression of obscene ideas and material, will not get at the problem… it will in fact encourage us to continue to ignore the problem, thus failing to take the necessary, positive steps to correct whatever needs correcting in our attitudes and practices.

As a result of this analysis the Committee finds itself unanimously agreed in its opposition to all institutions of censorship or suppression with regard to obscenity and pornography. We do not distinguish between “hard core pornography” and other obscene material, not do we distinguish between material available to adults and that available to youth.

Moreover, in opposing all institutions of censorship or suppression, we specifically include extra-legal forms, particularly that form in which “vigilante” groups of private citizens organize to bring economic and other kinds of pressure on book and magazine distributors, etc. in an effort to have what they deem objectionable materials removed from circulation. We don’t know if any such groups operate in British Columbia, but they do in the United States and elsewhere in Canada, therefore we think it wise to include reference to them in this report.

Our Committee therefore recommends that the British Columbia Civil Liberties Association establish as its policy:

  1. Principled opposition to all institutions and practices of censorship or suppression with regard to pornography and obscenity, and advocate the repeal of all laws supporting such institutions and practices
  2. That the Association make its position on this question known to the public, that it engage in appropriate action seeking the repeal of the relevant laws, that it take appropriate action to oppose steps to increase or widen existing law on the question, that it give its legal and other support to those who are subject to legal or extra-legal action as a result of these laws, institutions or practices and
  3. That the Association engage in such “education” activity as is appropriate concerning the question of pornography and obscenity, in an effort to create the social climate within which this aspect of civil liberties will receive the kind of attention and concern which it, and all civil liberties, deserve.