Central India Law Quarterly
Freedom Of Speech And Pornography FREEDOM OF SPEECH AND PORNOGRAPHY
This article examines the issues that emerge when society that
values free expression is also concerned about pornography.
In any country where freedom of expression is regarded as
important, whether or not it is Constitutionally guaranteed, or not it is
recognised that some balance must be struck between the right to free
expression and the right of government to prohibit or restrict the
publication and distribution of material deemed harmful to individual
citizens or to destroy', In the context of obscenity, immorality and
indecency, therefore, the government of a country has been consistently
putting "reasonable" restrictions through enactment of various
legislations, even though it encroaches upon the fundamental right of
freedom of speech and expression guaranteed to the citizens of the
2. Our Constitution also, while prescribing certain Fundamental
Rights to be enjoyed by every citizen of the country, places some
restrictions on these rights in the interest of public order, decency and
morality'. 'Pornography' is one such issue which needs due
consideration in the contemporary society and its regulation attracts a .
huge demand from various groups of people (like feminists, etc.)
• II year student of B.A.,L.L.B.(Hon's), National Law School of India
1. Information Highway Advisory Council Report, Canada, May, /996.
2. Article 19(2), Constitution of India: Nothingin sub-clause (l) shall effect
the operation of any existing law, or prevent the state. from making any
existing law, in so far as such law imposes reasonable-restriction on the
exercise of the right conferred by the said sub-clause in the interests
of publicorder, decency or moarlity .
68 CENTRAL INDIA LAW QUARTERLY 2003
its First Amendment Act. The relevant part of the Amendment it given
"Congress shall make no law.....abridging the freedom of speech,
or of the press".
In fact, the fundamentai right to the freedom of speech and
expression enshrined in our Constitution has been derived from this
provision of the Amendment I of U.S. Constitution. But, unlike Indian
Constitution, U.S. Constituti?n does not provide any exceptions to this
freedom of speech and expression, though it has been left to the Judiciary
to decide if any restrictions necessarily and required to be imposed in
C. Other Provisions
Apart from the Constitutional provision of some countries, there
are few Charters and Conventions which have been established for the
protection offreedom of speech of the individuals, namely':
I. The Canadian Charter of Rights and Freedoms protects the
freedom of speech under section2: "Everyone has the following
fundamental freedoms: .....
(a) freedom of thought, belief, opinion and expression, including
freedom ofthe press and other media of comrnunication'".
2. At an International level, Article 19 of the International Covenant
on Civil and Political Rights (ICCPRj protects freedom of speech
in the following terms:
7. See generally. Tania Voon, "Online Pornography in Australia: lessons
from the First Amendment", UNSW Law Journal. Vo1.24, Issue 1,200 L
8. This section of the Canadian Charter has been made subject to certain
restriction prescribed by section I:
"The Canadian Charter of Right andfreedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society;
Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY
"(2) Everyone shall have the right to freedom of expression; this right
shall include freedom to seek. receive and impart information and ideas
of all kinds, regardless or frontiers, either orally, in writing or in print, in
the form of fact, or through any other media of his choice?".
3. . Article 10 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms protects freedom of
expression in a manner broadly similar to that of the ICCPR}o.
After reviewing various provisions which protect individuals'
right to free speech and expression in society, we find that these
provisions do not provide complete freedom to an individual. Certain
restriction and limitations to the enjoyment of one's freedom has always
been imposed. These restriction have, however, been imposed in the
interest of public welfare of the society. For example, restriction in
order to maintain public decency and morality in the society, does not
allow the publication and propaganda of any obscene material or display
of any pornographic movie, etc. This, though, is in the interest of society
only, but it hampers individual's right of expression. This point will be
discussed, in detail, later.
In fact it is difficult to agree with those who try to defend
pornography and other obscene materials and behaviour in the light of
their freedom to speak and express whatever they wish under the roof of
Constitutional provisions. Pornography and access to obscene materials
9. The section 19(2) oflCCPR comes with certain restrictions under section
"The exercise of the rights provided for in paragraph 2 of this article
[may] be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of other:
(b) For the protection of national security or of public order, or of health
10. However, the Convention specifically states that this is not to prevent
states from requiring the licensing of broadcasting, television or cinema
72 CENTRAL INDIA LAW QVAItTERLY 2003
Therefore, in the judgment given by Lord Brennan in Roth, the
three errors of Hicklin were corrected. He said that a book can be judged
obscene only if "the dominant theme of the material taken as a whole" is
so judged; only if it is the likely effects of the materials on "the average
person" (and not the especially susceptible person) that is taken into
account and only if "contemporary community standards are applied to
the work".18 This came to be popularly known as Roth's three-pronged test.
The test was considered to be more effective than earlier Hicklin's test".
B. What Liberals say ...
The problem of pornography has ben a central issue within
liberals who rely on ideologies of J.S.MiII and Dworkin.
John Stuart Mill, in his essay On Liberty. held it to be
"inoperative that human beings should be free to form opinions and to
express their opinions without reserve". He argued that freedom of
expression was justified in the terms of "the permanent interests of
man,,20. However, what he meant by these "interests" has still been an
issue of debate. In fact, the basic theme of Mill's ideology was that
individuals are justified for their own actions and no one should be
allowed to interfere in others' activities unless some "harm" is caused to
them by such activities of others. Therefore, as Mill said that "no matter
how degrading and depraved an activity is, if no one else is affected by it,
the fact that others may think that forgoing this activity would make an
individual a happier or better person is not sufficient to justify the
imposition of sanctions?".
J8. Supra, note 14, p. J 73
19. However, Roth's test. was further modified in two later U.S. Supreme
Court's decisions, Vi? Miller v. California. (1973) 413 U.S. 15. and.
Paris Adult Theatre I v. Slaton. (1973) 415 U.S. 49. see, Ibid. pp. 184-187.
20. Gordon Hawkins, Pornography in a Fee society. Cambridge University
Press, Cambridge. New York. 1989. p.IIO
21. Susan M. Easton, Theproblem ofpornography. Routledge. London. 1994, p.2
Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 73
Mill emphasises the idea of "self-expression". throughout in his
writing. He advocates the notion of "personal sovereignty" hut dissents
to the idea of "paternalism" and "legal moralism" which allows an
authority to interfere with the liberty of individuals.
Based on these ideas of Mill, liberals try to argue 10 favour of
pornography. They say that it is individual's choice to consume or not to
consume pornography. Therefore, no authority should interfere in
individual's private sphere and impose restrictions on individual's
freedom. The liberals argue for-pornography by applying "consent
theory" and saying that sex industryihas relied upon contractual
agreements and on the volenti argument that, if individuals consent to an
activity which others find offensive, the state should not intervene,
provided that consent is freely given."
These arguments were further supported by a Report of the
Committee on Obscenity and Film Censorship" in 1979. The report,
advocating Mill's arguments, maintains that the prohibition of the sale of
pornography would be justified only if it is shown beyond reasonable
doubt that pornography is harmful. Further, the report says that
pornography may be restricted in order to prevent offence to reasonable
people or to protect young people from exposure to it. These restriction
do not prevent willing consumers of pornography from having access to
it. The report also says that it would be a violation of the principles of
free expression to restrict publication simply on the ground that they
advocated opinions which are offensive to many."
22. Ibid. p.7
23. The Wiliams Report: Report of the Committee on Obscenity and Film
Censorship. Cunnd 7772. HMSO; London, 1979. An abridged version of
the report was published as-Bernard Williams (ed.), Obscenity and
Censorship. Cambridge University Press. Cambridge, 1981.
24. For a critical discussion of the report, see generally, Ronald Dworkin. "Is
there a right to Pornography?"; Oxford Journal of Legal Studies. VoU,
76 CENTRAL INDIA LAW QUARTERLY 2003
9. Moreover, the pro-sex feminists argue that laws against
pornography or obscenity hinder women's sexual freedom. Further,
pornography is free speech- applied to the sexual realm. Therefore, it
should have the same legal protection as any other right of the
individuals. They also say that law should protect choice and the principle
'a woman's body, a woman's right applies to every peaceful activity a
woman chooses to engage in. The law should come into play when a
woman initiates force or has force initiated against her".
10. On the other hand, the "anti-porn feminists" consider
pornography as an expression of male Culture through which women are
commodified and exploited. They argue that exhibition of pornography
degrades a women, where women are depicted as "sex objects". They say
that pornography subordinates women in this so-called 'patriarchal'
nature of the society and their depiction justifies their alleged enjoyment f
11. Anti-pornography feminists allege that feminists who believe
women make their own choices about pornography are spreading 'a
felicitous lie'. Andrea Dworkin accuses them of running a 'sex protection
racket' and maintains that no one who defends pornography can be a
12. Gender feminism looks at history and sees an uninterrupted
oppression of women by men" In Dworkin's view, pornography socialises
men to rape-it is the cause of inequality between men and women38•
Brownmiller writes that 'rape is nothing more or less than a conscious
process of intimidation by which all men keep all women in a state of .
fear' 39. Mac Kinnon also agrees and considers pornography-in and of
itself-to be an act of sexual violence'".
35. Supra, note 21, p.81. Feminists, therefore, view pornography as an issue
of sexual discrimination.
36. Supra, note 31.
38. Supra, note 7, p.152.
Supra, note 31.
Vol. XVI FREEDOM OF SPEi:CH AND PORNOGRAPHY 77
13. However, in response to this pro-sex feminists say that studies
and experts disagree that a cause-and-effect relationship can be drawn
between men viewing pornography and men attacking women,
especially in the form of rape. They further contend that if a woman
declares her enjoyment in flaunting her body, anti-porn feminists claim
she is not merely a unique human being who reacts from a different
background and personality but also that she is psychologically
imbalanced and therefore not responsible for her actions. But in fact
women consent to do so under no coercion and thus no one can prevent
them from doing what they think they should d0 41•
14. But, the anti-porn feminists maintain the argument that
pornography is one of the root causes of major sexual abuses and sex
crimes taking place in the society. Pornography corrupts one's moral
senses and instigates them to participate in various sexual offences.
Moreover, men commercialize women's sexuality and market it back to
her in the form of pornography. This way, they try to degrade women
thus justifying _their subordinate status in the society and therefore
capable of being subject to any sexual urge or desire of men, either by
coercion or by consent. Anti-porn feminists, hence, show their concern
for bringing out strict anti-pornography laws", They prefer a law which
should protect virtue and enforce proper behaviour. According to
them, such law should come into play whenever there has been a breach
of public morality, or a beach of 'women's class interests'.
42. Catherine MacKinnon and Andrea Dworkin drafted and lobbied the first
civil-rights model anti-pornography statutes. Enacted in two American
cities, Indianapolis and Minneapolis, the ordinances proposes to regulate
the distribution and exhibition of pornographic materials, but the
Supreme Court of America held them unconstitutional on the first
amendment grounds, see, Mariane Wesson, "Sex, Lies and Videiotape:
The Pornographer as Censor", 66 Washington Law Rev 913(919), 1991.
80 CENTRAL INDIA LAW QUARTERLY 2003
morals. It is the society which corrupts them and forces them to do all that
which they would otherwise never like to do. Pro-sex feminists often talk
about women's freedom to live in whatever way they wish to, even if
they want to be a "piece of exhibition", a pr-ostitute, or anything else. But
they often ignore the reasons for which women ~ant to live in such a
lifestyle, if ever. Pornography is often the result of "male-power" exerted
on females. It sexualises dominance and submission. Studies have shown
that pornography dehumanizes females when men try to intimidate
women and use them for their sexual gratification: 'many of the
behaviours modelled in pornography do subordinate and violate
women, sometimes viciouslyr'",
20. Pro-sex feminists, in fact, give different reasons for women
getting involved in pornographic stuff. They say that women involve in
porn activities to gain basic sexual information. It also provides them a
'safe' place to experience sexual alternatives and healthy sexual curiosity,
etc. Pro-sex feminists advocate their reasoning by saying that females
'fantasize' these acts.
21. It is agreed that women's desires and freedom of expression
should not be curbed. But, it is hereby contended that women's sexuality
should not be publicised or 'sold'. Women's liberation and their right to
express themselves freely should be upheld, but at the same time it should
be checked that this right is not used to "instigate" them to do immoral
acts and thus make them a 'piece of mockery' in the society. Women are,
of course, equal to men in every respect. This right of equality should be
emphasised and not that women being made an object of subjugation by
enforcing their right to free speech and expression to participate in
pornography, which liberals often do. Again, minority rights like rights of
prostitutes, gaysllesbians may be upheld, but it would not be acceptable if
these people are publicised or their activities being made available for
access to everyone, for their personal enjoyment or for corrupting them
and instigating them to participate in similar activities.
Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 81
22. Pornography derogates womanhood, it corrupts and depraves
human beings of their moral senses, it is one of the major causes of
sexual offences (Like rape, trafficking of women, sexual harassment,
etc.), it is harmful for public morality and decency, etc.- For these
reasons it can be justifiably said that pornography should be suppressed
but at the same time upholding women's equality and liberty in society,
thus in agreement with 'liberal feminists' ideology.
HOW TO REGULATE PORNOGRAPHY?
23. Now, the question arises as to how to regulate or ban
pornography without infringing upon constitutionally guaranteed rights
of individuals (i.e. right to freedom of speech and pornography). Various
laws prevalent in India and other nations have been discussed below-
A. Indian Position.
1. Constitutional Provision: Article 19(1)(a).
Clause (2) of Art. 19 of the Constitution ofIndia imposes certain
restrictions on the right enjoyed under sub-clause (a) of clause (I) of the
same article. The provision reads as follows:
(2) Nothing in sub-clause (a) of clause (l) shall affect the operation of
any existing law, or prevent the state from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the sub-clause in the interests of the sovereignty and
integrity of India, the security of the state, friendly relations with foreign
states, public order, decency and morality, or in relation to contempt of
court, defamation. or incitement to an offence.
Therefore, as the clause clearly says, a restriction can be
imposed on the individuals right to freedom of speech in the interest of
public morality and decency. Pornography can also be covered under
this provision of the Constitution.
84 CENTRAL INDIA LAW QUARTERLY 2003
as in the case of film 'Bandit Queen', then they may not take it as a
message against rape and its perpetrators. They may, rather, enjoy the
scenes shown therein and this may arouse their sexual desire to commit
similar acts. Then, in that case the effect desired by the movies (as
supported by the courts too!) will be reversed! therefore, pornography
shown in any form and meant for any purpose is not desirable. The
consequences will be same; probably the ratio of those 'affected' may
differ. The desired effect, that is, to create an atmosphere against
violence, rape, etc. shown in movies may be shown without using
obscene scenes, too. The scenes may give an indirect effect as to 'what
would be happening' instead showing them expressly in the form of
expletive scenes like those of rape, violence, nude woman, etc. This will
be "enough" to create the feeling of hatred against the perpetrators of the
crime or the crime itself, and sympathy for the victim.
2. Penal Provisions-s.292, IPC.
Section 292 of the Indian Penal Code envisages definition of
obscenity, which runs as follows:
Book, pamphlet, paper, writing, drawing, painting, representation,
figure or any other object, shall be deemed to be obscene if it is lascivious
or appeals to the prurient interest or its effect, or (where it comprises two
or more distinct items) the effect of any of its items, is, if taken as a whole,
such as to tend to deprave and corrupt persons who are likely. having
regard to all relevant circumstances to read and see or hear the matter
contained or embodied in it.
This definition literally corresponds to the test of obscenity as
laid down in R v. Hicklin5'J. The section makes obscenity an offence and
provides for the punishment of two years or more (in case of second
subsequent conviction - the punishment will be five years) and a fine. for
the commission of such an offence'",
59. Supra, note 6.
60. Section 292. CI.(2). fPC.
Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY
Many cases have evolved in this respect, particularly
questioning the validity of the section in view of Art.19( I)(a),
Constitution of India. But, in almost all the cases its validity has been
upheld. For example. in Ranjit D. Udeshi v. State of Maharashtrd"; it
was said that the cherished rights of freedom of speech or expression on
which our democracy rests is meant for the expression of free opinions
to change political or social conditions or for the advancement of
knowledge. But these rights are subject to certain restrictions necessary
in the interest of general public and one such is the interest of public
decency and morality as embodied in Art.19( I )(2). Constitution ofIndia.
Section 292, in fact, does not go beyond 'obscenity' which falls directly
within the words "public decency and morality" of Art. 19(2t2•
The same opinion was expressed by the courts in the later case
of Shankar & Co. v. Madras 63 where section I of Press (Objectionable
Matter) Act, 1951 was held not to violate Art.19( I )(a).
In another case of Samaresh Bose v. Amal Mitra64,certain
guidelines were framed by the Supreme Court, for the judges to keep in
mind while judging on question of obscenity.
B. American Position.
As has already been discussed, the US First amendment Act
provides for the protection of freedom of speech of the individuals.
However, its being commonly observed that despite the absolutism of its
first few words", it has been held that certain laws may be made and
61. Supra, note 15
62. Ibid.. p.885.
63. Supra. note 15.
64. (1985) 4 SCC 289.
65. "Congress shall make no law... ". U.S. Const. Amend. I.
- - - - - - - - - - - -- - --- -- - - - -- -- - --
- ------ ----- -- --- - --- - - - - -- - - -
88 CENTRAL INDIA LAW QUARTERLY 2003
convicted for the Common Law offence of conspiring with others to
corrupt public morals by means of publishing obscene book (under
Obscne Publications Act, 1959). He was also convicted for living on the
earnings of prostitutes, contrary to sec. 30( J) of Sexual Offences Act,
1956. His conviction was affirmed by the House of Lords. Lord Simond
pointed out that it might be desirable to use the conspiracy offence if it
was difficult to establish obscenity within the meaning of Obscene
Publ ications Act.
Somewhat similar facts were presented in Knuller's case also,
where magazine contained advertisements for offering to indulge in
homosexual activities. Two charges were made - one for conspiring with
advertisers to induce readers for participating in such activities and thus
corrupting their morals; second was for conspiring with publishers to
publish such advertisements in magazine and publicising it, therefore
outraging public decency. Conviction under former charge was upheld
but not under later. Lord Reid said that there is no such offence as
conspiracy to outraging public decency.
24. Pornography is a matter of deep concern for any democracy
. where people enjoy a wide realm of freedom. Freedom of speech, though
very essential for a democracy, its unrestricted enjoyment may sometimes
prove harmful for the society. Therefore, certain necessary and reasonable
restrictions have been imposed on this freedom, by the Constitution and
many other laws of the country.
25. Often, forgetting about these exceptions to the right to free
speech, liberals argue in favour of pornography for allowing its
consumption, since individuals are free in a society to do anything they
want under the guardianship of Fundamental Rights granted to them by
the indestructible authority of the Constitution. Though, this is true, but a
Constitution, certainly, will not allow any such activity which may be
Vol. XVI FREEDOM OF SPEECH AND PORNOGRAPHY 89
offensive to the majority of the community and is not in the interest of
public morality and decency. Moreover, activities like pornography are
not only contrary to public morality, but also stand as a degrading factor
for women. Women are depicted as "sex objects" ready for being
sexually exploited by the men. They are shown participating in various
sexual activities and enjoying them too, which arouses sexual desire
among those who watch it and urges them to participate in similar
practices. This is a statistically proven fact. This often leads to various
sexual crimes like rape, prostitution, etc. Therefore, it is very important
to suppress the display and commercialisation of pornography.
26. Further, those who try to uphold the use and propagation of
pornography should be suppressed since they are the ones who ignore to
foresee the harmful consequences of pornography on society as a whole
and women specifically. These people use the weapon of right to free
speech and expression to support their unfavourable arguments in favour
of pornography. Though this right is important for an individual as any
other Fundamental Right but there are restrictions also imposed on its
exercise which needs to be observed, in the interest of general public,
One such restriction is in the interest of public decency and morality.
Pornography is definitely against the moral values of the society.
Therefore, its prohibition isjustified under Constitution.
27. Also, women's liberalisation is though favoured in the present
society, this should not make women participate in such activities which
degrades their womanhood. This may also lead to women's
subordination by male gender who will view women as "objects" of
exploitation, of fulfil their wicked desires!
28. Thus, to conclude. as pornography degrades womanhood,
subordinates them and depraves society of its moral values. it should not
be allowed. Constitution specifically provides restriction on any such
activity and freedom of speech can be no defence for it.