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Pornography can be defined as sexually themed material designed to elicit sexual arousal (McGlynn & Bows, 2019). As of November 2022, the Internet pornography site Pornhub is the 13th most trafficked site in the world, second only to Amazon (SimilarWeb, n.d.). However, popular attitudes towards such a highly infiltrated subject in users’ lives are highly polarized. Supporters, such as sex-positive feminists, defend the public’s right to consume pornography, arguing that on the one hand it promotes women’s sexual expression and reduces the likelihood of sexual violence and abuse, and on the other hand it helps marginalized groups to cultivate their communities for sexual relationships. Oppositionists, on the other hand, argue that pornography needs to be regulated, such as anti-pornography feminists who charge that all pornography demeans women and inadvertently reinforces a sexual culture that is complicit in rape and sexual harassment.
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Faced with the controversy of pornography, governments have responded in different ways. Some of these Western countries have chosen to apply censorship to pornography, such as the ban on “extreme pornography” in the United Kingdom in 2008 (Crown Prosecution Service, 2019). Since free speech is constitutionally protected in most Western countries (the United States and Western Europe), the imposition of censorship, albeit only for pornography, has been seen as a threat to liberal democracy and has stimulated debate among scholars and activists. Using the UK’s ban on “extreme pornography” as an example, this article will critically discuss the arguments for and against the censorship and attempt to suggest a solution based on Mill’s Harm Principle.
The Simon Walsh Case Study
In 2008, the United Kingdom introduced the criminal offence of “possession of extreme pornography”. “Extreme pornography” is defined as “depicting, in explicit and realistic images, acts that endanger life or cause serious injury to a person’s anus, breasts, genitals, or other forms of non-consensual sexual assault; and the images must be “grossly offensive, disgusting or otherwise obscene”. Behaviors that meet the above definition include, but are not limited to, severe violence, bestiality, and necrophilia. The express purpose of the law is to protect women from pornography (Crown Prosecution Service, 2019).
However, since the introduction of the law, some liberals have questioned whether it is a “‘hysterical’ overreaction by the ‘thought-police'” or an “exercise of state power” (Ferguson & Hartley, 2009). These controversies have not been put to rest over time but have intensified in one case after another: in August 2012, Simon Walsh, a former aide to the then Mayor of London, was charged by the Crown Prosecution Service with five counts of possession of “extreme pornography”, which was filmed at his private sex party and contained allegedly harmful acts of anal fisting and urethral sounding. Walsh was acquitted after defended evidence that the five images were relatively safe and consensual. However, the process not only exposed Walsh’s sexuality to the public, but also damaged his career (Jackman, 2012). Afterwards, the Crown Prosecution Service indicated that despite the jury’s disagreement, they maintained the stance that the behaviour in the images was extreme. This reflected their view that the prosecution was in line with government policy (Cowen, 2015).
Before comparing the two viewpoints one needs to acknowledge that interestingly, although the positions are diametrically opposed, both use Mill’s Harm Principle as the basis for their claims. Mill’s Harm Principle states that an individual’s actions should be limited to preventing the infliction of other individuals. In other words, individuals are free to act as long as they do not harm others. Both sides agree on the soundness of the principle but disagree on the definition of the term “harm” (Mill, 1859).
Cases supporting censorship have argued that harms should not only include direct harms, but indirect harms as well, noting that pornography brings cultural harms. Cultural harms include the fact that in an environment where pornography is widespread, the objectification and stigmatization of women is reinforced, thus reducing women to objects of sexual desire. In addition to this, pornography also shapes distorted notions of sexuality in its transmission, normalizing sexual violence, sexual abuse, and other harmful behaviors (Cowen, 2015). In the previous part of Walsh’s case, supporters may agree with the Crown Prosecution Service’s position that the five images were extreme and harmful because the spread of such images may lead to the desensitization of the public to that type of behavior, thereby increasing the likelihood of serious injury as a result.
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The anti-censorship position argues that harm under the Harm Principle should represent only direct harm, namely, harm or damage that occurs immediately and without intermediary or intervening factors (Thomas & Binnie, 2023). The definition does not represent a laissez-faire policy; rather, it suggests boundaries within which the state can and should intervene – the state can intervene against the will of any civilized society but can exercise its power for the sole purpose of preventing harm to others. Thus, the only pornography that should be ordered to be banned from production, consumption, and possession should be pornography created through coercion, which includes child pornography, as children are individuals who are incapable of consenting to sexual behavior. At the same time, the anti-censorship position also asserts that the Harm Principle protects activities related to pornography, such as activities that take place in private spaces with the consent of adults (Cowen, 2015). It can be inferred that the anti-censorship position would argue that extreme pornography legislation is redundant since the harms defined therein do not have a verifiable impact on the individual, but rather the law rationalizes and legitimizes the invasion of an individual’s privacy.
Why Censorship is Forbidden?
Censorship against pornography, such as “extreme pornography”, is undesirable for three main reasons. First, the subjective nature of censorship empowers authorities to abuse their power. The words “grossly offensive, disgusting” contained in the definition of extreme pornography are vague and subjective, and can serve as a tool for the state to make sexual culture taboo for minorities. In addition, if “cultural harm” is included in the law, then in the future, censorship may not only be applied to pornography, but the scope of coercion may extend to films, literature, and even social media. Its purpose is not to promote a safer society, but to expand the power of the state.
The second reason for opposition is that penalizing individuals to address “cultural harm” is unfair to them. Assuming that the production, consumption, and possession of “extreme pornography” is a form of cultural harm, it is caused by an entire group rather than an individual. Thus, punishing individuals for broad abstract “cultural” crimes is highly problematic. Finally, censorship cannot address the so-called “cultural harm” and may even have side effects. First, relatively little evidence exists that consumption of extreme pornography encourages violent behavior. Rape victimization rates in the United States even show an inverse relationship between pornography consumption and rape rates (Ferguson & Hartley, 2009). Moreover, for sexual minorities, pornography makes a significant contribution to the affirmation of alternative sexual identities and representation. However, if the state were to censor it, there is a high probability that such activities would be banned, thus disadvantaging minorities.
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Looking to the Future
While opposing censorship, this does not mean that this paper opposes government intervention. As noted earlier, the sole goal of the state’s exercise of power is to prevent harm to others. Based on Mill’s claim, I believe that the proper intervention should assess not whether the content is harmful, but whether the purpose for which it is produced is used to harm others. Thus, in addition to prohibiting pornography created by coercion, the law should also restrict pornographic material that is used to harass, assault, and cause fear in others.
In addition to this, while this article promotes freedom of expression in pornography, it does not imply that access to and acceptance of pornography is mandatory for all. Therefore, in order to ensure freedom from pornography, which corresponds to freedom of expression, pornography in public places such as cinemas, billboards, including Internet advertisements, should be legally regulated.
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Cowen, N. (2015). Millian Liberalism and Extreme Pornography. American Journal of Political Science, 60(2), 509–520. https://doi.org/10.1111/ajps.12238
Crown Prosecution Service. (2019, November 21). Extreme Pornography | The Crown Prosecution Service. Cps.gov.uk. https://www.cps.gov.uk/legal-guidance/extreme-pornography
Ferguson, C. J., & Hartley, R. D. (2009). The pleasure is momentary…the expense damnable? Aggression and Violent Behavior, 14(5), 323–329. https://doi.org/10.1016/j.avb.2009.04.008
Jackman, M. (2012, August 8). Extreme porn trial: consensual sex and the state. The Guardian. https://www.theguardian.com/law/2012/aug/08/extreme-porn-trial-simon-walsh
McGlynn, C., & Bows, H. (2019). Possessing Extreme Pornography: Policing, Prosecutions and the Need for Reform. The Journal of Criminal Law, 83(6), 002201831987778. https://doi.org/10.1177/0022018319877783
Mill, J. S. (1859). On Liberty. Arcturus Publishing Ltd.
SimilarWeb. (n.d.). Website Ranking: Top 50 Most Visited Websites Ranked – SimilarWeb. Www.similarweb.com. https://www.similarweb.com/top-websites/
Summers, C. (2007, July 4). “Extreme” porn proposals spark row. News.bbc.co.uk. http://news.bbc.co.uk/2/hi/uk_news/6237226.stm
Thomas, H., & Binnie, J. (2023). The paradox of pornography – sexuality and problematic pornography use. Culture, Health & Sexuality, ahead-of-print(ahead-of-print), 1–16. https://doi.org/10.1080/13691058.2023.2213750