It might be supposed that in a liberal society, such as ours professes to be, the attitude of the state towards obscenity, or the function of the public censor, should not give rise to problems of any great difficulty – details apart – and that there is a widely accepted model to which thinking on these issues would try to conform. The model is that provided by John Stuart Mill’s essay On Liberty, and the doctrine that it endorses runs something like this: some people like obscenity, and some don’t, and those who don’t tend to find it filthy, horrible, revolting, and, probably, immoral. But even if obscenity is filthy, horrible, revolting, even immoral, those who want it should be allowed to have it unless their doing so causes harm and this harm outweighs any good that it might also cause. That something is immoral does not, as such, justify intervention at law: what is additionally required is that it should on balance bring about harm, and, if it does, this suffices for legal intervention whether or not there is immorality. The Williams Commission accepts what it calls ‘the harm condition’, and goes on to ask what kinds of harm there are, which of those is likely to attach to obscenity, and does any?
Its report distinguishes five kinds of harm. If we take them chronologically, or in the order in which they might arise, there is, first, the harm that might be occasioned in the making of some piece of pornography – what the report calls ‘participant harm’. Secondly, there is the harm that someone might cause himself by reading or looking at some obscene material. If a natural way of thinking of such harm is as harm that stops at the person himself – except in exceptional circumstances, where the person has entered into undertakings with others which he now can’t carry out – the discussion about obscenity as it has developed over the years has focused on a rather special case, which may be seen as a distinct or third form of harm. This is where the harm doesn’t stop at the person himself, but involves others, just because it consists in a tendency, either new or moulded out of existing traits, to harm others. An example would be where reading pornography leads to a sexual assault, and this kind of harm might be called ‘transitive harm’. Fourthly, there is the kind of harm that someone who doesn’t want pornography suffers from coming across or seeing it. If there is some doubt whether this kind of harm is harm suffered on balance, there is little doubt that it is suffered, and the explanation lies in the attitudes towards pornography already mentioned of those who don’t want it. The Commission’s term for this is ‘offence’, and they think of it as relative to norms and expectations, and as admitting of differences of dimension. Finally, there is a fifth kind of harm, which, unlike the others, is suffered not by individuals but by society itself. Call it social harm.
The first kind has the advantage of being fairly clearly identifiable and apt for legal intervention. The Commission believes that participant harm certainly arises in the production of films or photographs when minors are involved, prematurely, in sexual activity, or when physical harm is inflicted on the actors. It recommends that such material should be prohibited, and it allows no room in the first case and very little in the second for the plea of consent. It does not believe that participant harm is occasioned in the making of average pornography, in ‘live entertainment’ – which it thinks should be prohibited on other grounds – or, presumably, though it says very little about this, in the use of animals in bestial films. It takes the reasonable view that the ‘snuff film’ is a figment, not of the torture chamber, but of the advertising agency.
As to social harm, some readers will recall how, about twenty years ago, this was brought to the forefront of the rather broader discussion of the law and sexual behaviour generally through a lecture by the eminent judge Lord Devlin. In The Enforcement of Morals, Devlin, though he expressed himself in terms of harms, did not in fact think that the harm condition established the proper limits of state action, and in referring to damages to the fabric of society, rather than to individual members, he set himself to wrench the whole argument out of the Millian framework in which he thought it had been too long confined. But Devlin’s invocation of social harm so as to transcend the traditional liberal constraints upon the law came about largely through the greatly exaggerated construction that he placed upon social harm and what constitutes it. The exaggeration is contained in two identities to which he subscribed: the identity of a society itself with the set of moral rules that the ordinary citizen of that society acknowledges, and the identity of a contravention of any one of these rules with a threat to the survival of that rule. Put these two identities together, and the conclusion appears to follow that an isolated act of fellatio performed in the dim light of a suburban bedroom is tantamount to an act of treason. This outdoes in absurdity even the cant to which we have been exposed in recent weeks on this topic.
In the Williams report a sensitivity to social harm is retained, but, by combining this with more realistic assumptions about how such harm arises, it manages to reintegrate within the Millian framework various contemporary misgivings about pornography as a form of pollution, or as a degradation of the quality of life. Indeed, the report goes on to lend these misgivings a serious and sympathetic hearing, and while it concludes that social harm does not justify legal intervention, this is, it seems, for three reasons two of which aren’t so alien in spirit from the misgivings themselves. One is that we are dealing with phenomena so complex that it is impossible to separate with any conviction cause from effect, illness from symptom. The other is that profound ills, if that is what they are, are not to be purged in a court of law. To these the Commission adds the suggestion of a third: that, living as we do in a plural society, we cannot identify the fabric of society as easily as it could be identified in the Ayatollah’s Iran, or even in Periclean Athens.
It is upon the second, third and fourth kinds of harm, and their relevance to legislation, that over the years the controversy about obscenity, informed or inflamed, has concentrated, and naturally the Commission is drawn in its wake. It is instructive to compare their assessment of the different kinds of harm with Mill’s, particularly since his could never have been very far from their minds.
The second kind of harm, that which an agent does to himself, is discounted by Mill. For him, the protection of someone from the consequences of his own actions – paternalism – is a violation of personal autonomy. The Commission agrees here with Mill, adding to his reasons reasons close to those which led them to think that social harm was not a fit subject for legal treatment.
Mill thought that the third kind of harm, or transitive harm, might in certain circumstances justify state intervention, but he thought it far better that the state should wait until the further or actual offence was committed, and then punish that. If the state dabbled in preventative measures, he foresaw gross abuses of executive power. The Williams Commission is far readier to think that transitive harm, if established, would justify state intervention, and its doubts are entirely whether there is any confirmed positive connection between pornography of a sexual or a violent kind and the matching crime. It exposes the scientistic pretensions of various research projects in this area, such as the work of the influential Dr Court. It remains a matter, of general interest why our age is so ready in so many domains to place the value of security above that of liberty, and in particular there is a grey heartlessness to a society whose ideology combines a heavy emphasis upon sexual excitement and provocation with an ever harsher intolerance of what this is likely to excite or provoke to.
It is over the fourth kind of harm, or offence, that the major disagreement between Mill and the Commission manifests itself. Mill thought that it would be dangerous if the state took note of offence. By contrast, the Commission thinks, not merely that offence should be taken note of by the state, but that this should be the central concern of the law in this area. For over a hundred years the aim of the law concerning obscenity has been the suppression of material which has ‘a tendency to deprave and corrupt’ – a definition that at once concedes the harm condition and, if taken literally, which is rare, identifies the relevant harm as transitive harm. The Williams report wishes to redefine the principal object of any such law as the protection of children and the prevention of offence.
Does the Commission’s radical disagreement with Mill on this issue mean that it also departs from the principles of liberalism? The Commission evidently thinks not, and for this in turn it relies upon the restrictions it imposes upon the notion of offence, if offence is to matter. In the first place, relevant offence cannot be given by the written word, but only by pictorial matter. Secondly, it is exclusively offence that ‘reasonable people’ would experience. Thirdly, the offence must be directly caused either by the material itself, in virtue of its sexual or violent content, or by the public display of such material: it cannot be, for instance, offence taken at the mere thought of such material. Finally, except in the peripheral case of certain films – and there it is the decision of the censor, not the provisions of the law, that is at issue – offensiveness does not justify prohibition, but only restriction. Offensive material, in other words, will be available only to a volunteer audience: which means, in the case of magazines, that they will be found only in special shops presenting to the street a blank exterior and a prominent warning notice, and, in the case of films, that they will be shown exclusively in designated cinemas.
How do these restrictions affect the matter? Just why Mill wanted offence discounted may still be a matter of dispute amongst his commentators, but there were clearly three dangers that he foresaw in taking account of it when no other form of harm was caused. If it was an opinion that was found offensive, offence could be invoked to suppress freedom of expression. If it was behaviour, offence could put at risk those ‘experiments of living’ which Mill found crucial to individuality. And, most importantly, if the offence taken, whether at opinion or behaviour, was based upon a moral judgment, this moral judgment, instead of having to justify itself at law or prove its case, would now automatically get itself underwritten by the law just because of its power to generate offence. Such an outcome could not be compatible with liberalism.
It is evidently the view of the Commission, though not in so many words, that the restrictions it imposes upon the role of offence forestall these three dangers. That offence taken at the written word is irrelevant ensures that freedom of expression is not in jeopardy. That offence justifies not prohibition, only restriction, safeguards experiments of living, for what is required by individuality is that these should be conducted, not that they should be conducted in public. To the further objection that what is permitted in private should also be publicly permitted, the Commission’s reply is surely right as far as it goes: that if we are concerned with behaviour that could cause offence if done publicly, the motivation in the two situations is likely to be different, so the behaviour is likely to be different, and so what licenses one does not necessarily license the other.
As to the third danger, the Commission says very little about the nature of offence, and whether it had in mind offence mediated by moral objection or solely that which is a gut-reaction. But probably it felt secure in its insistence that offensiveness is to be measured by the reactions of ‘reasonable people’. There will be some liberal readers who are not charmed by this phrase, but at least they owe it to the report to make clear whether they object to the phrase because of the doctrine it enunciates, or whether they object to it because it is vulnerable to misunderstanding and abuse.
But suppose that the restrictions the Commission imposes upon offensiveness and how it should be invoked do indeed purchase liberalism for its proposals, is liberalism bought at the price of arbitrariness? In other words, do the two distinctions on which so much rests – that between the written word and pictorial matter, and that between prohibition and mere restriction – independently recommend themselves as singling out the really relevant differences?
In proposing such different treatment for the text and the image, the Commission relies upon three rather different considerations. The first is narrowly political, and is just the undoubted fact that since 1976 it has become extremely unlikely that the law will ever again be invoked against the written word. The failed prosecution of Inside Linda Lovelace was the last gasp of strictly literary censorship. Secondly, there is a consideration from mechanism, which argues from the fact that to read a text some kind of effort is required of the reader, whereas an image can enter the visual field unsought. In consequence, pictorial pornography can make an unsolicited gift of itself, which written pornography is unable to do. The third consideration is subtler and more complex, and concerns the different ways in which text and image may engage with private fantasy.
It is a sign of the seriousness of the present report, and the resolve with which it endeavours to elevate the level of public debate, that it should find it absolutely appropriate to introduce a speculative consideration like the affinity between modes of pornography and the phenomenology of our sexual life into an argument about how legislative policy should be formed. The Commission is right, because if no step is taken beyond the experimental data, if no theoretical commitment is made in these dark areas, then we shall deny ourselves the right to say in the social forum the kind of thing that we take for granted in our ordinary domestic reflections. As I understand it, the Commission commits itself to the interesting view that visual pornography has a stronger pull over our fantasies than written pornography because of the way its medium mimics the medium of fantasy: it is, in other words, similarly regressive.
My own surmise is that, if this is true, it is only part of the story. Pornography exerts a hold over us through its content and the way in which its content relates to our fantasies. But it also exerts a hold over us in its own right, or as a container which our fantasies then represent as relating us, or forcing us to relate, to its content. The work of pornography thus enters into a three-cornered relationship with us and with its content, a relationship which includes but goes beyond the simple relationship between us and what we read or look at, and which admits of various realisations. The work can be seen as igniting our sexuality; or as dominating it and making it move to a strict tempo; or as inundating it with confused possibilities; or as preserving it from contact with other feelings such as hope or regret; or as trivialising it, aggrandising it, degrading it, but always ruthlessly controlling it. Each of these perceptions articulates an over-arching fantasy of a sado-masochistic kind, according to which the work of pornography, like the romance which lay unread by the side of Paolo and Francesca through the declining day, comes to exercise an influence over those who delight in it which is more masterful than that of the many particular incidents or exploits or deeds of prowess portrayed within its covers.
But if this charismatic view of pornography is correct, what practical implications does it have, and does it have any which run counter to the Williams proposals?
If the view is taken that the appeal of pornography lies exclusively in its content, then it is natural to think that what pornography does for the person whom the report, following current usage, calls ‘the consumer’ of pornography is to reinforce his existing fantasies – to the extent, of course, of making some which are dormant active. Accordingly, prohibition, restriction or tolerance of such material will be looked upon as primarily affecting the intensity of his fantasy life. However, once recognition is given to the role of pornography itself as the administrator or arbiter of its own content, it becomes evident that pornography is capable, not just of raising or lowering the – volume of our fantasies, but of moulding their character. The fundamental reason is that the work of pornography can engage with some of our most potent sexual fantasies: those which are fantasies about our sexuality – instructing us whether it is dangerous, whether it is enjoyable, whether it is permitted, whether indeed it is ours, or ours only by proxy.
Precisely how this is achieved must be far too uncertain a matter for there to be any immediate consequences for social policy, even if one did think that the subject should fall within the proper sphere of state action. But if the insight holds that pornography does not simply transmit sexual news but also interprets it, this does have one important consequence: that pornography can take its place amongst other factors in society to which its citizens turn, knowingly, unknowingly, to test their fantasies, and which therefore have, for better or for worse, a formative influence upon their characters. A compartmentalising social theory hands those different factors over to different experts, and they are not to be mentioned in the same breath. A state paper like the Williams report, for all its intellectual adventurousness, cannot avoid this constricting influence. A psychoanalytic witness told the Commission that it was ridiculous to want to ban violent pornography when corporal punishment, or what might be thought of as the live entertainment of sadism, was allowed to survive in our schools. There is no record of this contribution in the report – presumably because it touched on a topic that lay outside the Commission’s terms of reference.
What also follows from the view of pornography I suggest is a greater similarity than is usually conceded between the addicted consumers of pornography and the crusaders against pornography, between those who want it and those who cannot tolerate it. A passing tribute is often paid to depth psychology by observing that the strength of the crusader’s hostility to pornography is a measure of his desire for it. This may be true, but it is trivial. The point that I would make is that both groups are wedded to the task of rigidly controlling their sexuality and their aggression through some external aid, and the difference between them lies largely in the very different systems they look to. ‘A minute in the mind of Mrs Whitehouse’ – to adapt a famous phrase of Norman Mailer’s about General Westmoreland – might tell us a great deal about her unfortunate and unhappy victims. But just because the support systems are so different for the two groups and just because the dependence on each system is so heavy, animosity, suspicion, fear must be the emotions that the two groups experience towards each other. Each move that either makes in favour of its own chosen mode of policing its internal forces – puritanism or pornography – is bound to seem a total threat to the fragile security of the other.
In the light of this, the decision of the Williams Commission to turn to the middle terrain of reasonableness seems even better grounded. To my mind, however, the Commission errs in the way it conceives of offence to reasonable persons. Explicitly, it assimilates offence to social harm, regarding both as relativised to prevailing cultural norms and expectations. Politically, this may be astute, but I feel it to be objectionable. It also overlooks the possibility that socially-accepted views of what it is reasonable to be offended by may in the coming years become more stringent, rather than progressively relaxed: this, too, is a political consideration, though of an opposing kind. For me, the crucial consideration would be that in an enlightened society what the law should ignore or discount, when it weighs the permissibility of something, is not fringe or eccentric reactions to it, which may be highly valuable, but pathological, reactions. It is true that in order to identify such reactions a theory of human nature is required. But, as the Williams report recognises, a theory of human nature is already required to justify treating pornography any differently from Terylene suits or Muzak.