Fiona Snyckers
Fiona Snyckers

Regulation of the porn industry is not a free speech issue

Late last year, South Africa’s journalists and assorted media types decked themselves out in black to protest the Protection of State Information Bill. Shortly thereafter the news sites started buzzing with proposals to introduce a porn channel to our TV sets. And very shortly after that, various organisations threatened to boycott the channels concerned and called for pornography on TV to be banned.

It was only a matter of time before someone demanded to know why all those black-clad journos were not protesting against the infringement of the would-be pornographers’ rights to freedom of speech. If you’re in favour of free speech, the argument went, then you must be in favour of a porn industry that can do whatever it likes.

But here’s the thing. It doesn’t work like that.

In most western-style democracies, pornography does not enjoy the protection of the freedom of speech laws. This is because it is classified as a form of commercial expression, rather than artistic or ideological expression. Have you never wondered, for example, why the advertising industry is subject to such stringent laws? It even has its own control board — the Advertising Standards Authority of South Africa. Advertisers are not permitted to do a whole bunch of things, including explicitly compare their own brand with someone else’s, offend the public’s religious or moral sensibilities, or post billboards of naked people. The list of things they’re not allowed to do is a very long one indeed.

So how come the government is allowed to restrict the advertisers’ freedom of expression in this way? And why does nobody ever protest about it?

It all has to do with the fact that advertising is regarded as a form of commercial, rather than artistic expression. The advertisers are not trying to bare their artistic souls to us — they are trying to sell products. And because selling products is an entirely commercial enterprise, laws have evolved to regulate it.

Yes, there might be certain grey areas in which particular advertising campaigns have come to be seen as art and not merely as commerce. But the fact remains that they are regarded by law as commercial artefacts first and cultural artefacts second.

So, how does this all relate to the porn industry? Most western-style lawmakers have decided that pornography is primarily a mode of commercial expression too. That woman who is stripping in front of her webcam is doing it to make money, not to express her inner womanhood. That couple who are engaging in sexual intercourse in plain view of a cameraman, a director, a sound guy, and several hundred thousand online viewers are not putting on some kind of avant-garde naked theatre. They’re doing it for the money. Even all those free online porn sites out there are not operating out of the goodness of their hearts. They are doing it for the advertising revenue.

And, yes, the grey areas are even greyer here than in the advertising industry. Where does erotica end and where does pornography begin, for example? Erotica is generally regarded as a form of legitimate artistic expression, whereas pornography is motivated by profit. To put it plainly, it is designed to encourage a mode of recreation that will a) make you go blind, b) give you hairy palms, and c) necessitate the saying of many Hail Marys. Thus, when then department of arts and culture minister, Lulu Xingwana, reportedly tried to have a photography exhibition featuring lesbian images shut down, she was infringing the artist’s rights to freedom of expression, but when the ASA took down an obscene Teazers billboard it was not.

Just because it is frequently difficult to draw the distinction between erotica and pornography, does not mean that lawmakers will give up trying to do so. Many have adopted the attitude that they know obscenity when they see it, and combined this with a kind of reasonable man test. This is not as arbitrary as it sounds because it allows the definition of obscenity to evolve with changing cultural norms. Rather than trying to pin down definitions of obscenity, courts generally try to make the call there and then depending on what the current cultural norms of the community are.

The issue is further complicated by the fact that the internet and broadcast TV are not remotely the same thing. The internet is a worldwide phenomenon that arguably belongs to no one in particular. The TV industry, on the other hand, is regulated by the Broadcasting Complaints Commission of South Africa, not to mention various statutory laws. Public broadcasters like the South African Broadcast Corporation are more tightly controlled than private ones like DSTV, but the control is still there.

To say therefore that pornography is freely available on the internet anyway, so why not make it available on TV, simply doesn’t wash. The one is largely unregulated and the other is very tightly regulated indeed. Introducing pornography into that highly regulated space is no simple matter, and various stakeholders must be allowed to have their say as the matter works its way through the courts.

So don’t shed any tears over those poor, dear pornographers because their freedom of expression is being arbitrarily crushed by Big Brother. These are not highly-strung artistes longing to express themselves. They are hard-nosed businessmen trying to turn a buck at your and my expense. And as such they must submit themselves to regulation, just like all the other sharks in the tank.

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