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Voon, Tania --- "Online Pornography in Australia: Lessons from the First Amendment" [2001] UNSWLawJl 15; (2001) 24(1) UNSW Law Journal 142
Online Pornography In Australia: Lessons
From The First Amendment
TANIA VOON[*]
Just as the strength of the Internet is chaos, so the strength of our liberty
depends upon the chaos and cacophony of the unfettered
speech the First
Amendment
protects.[1]
I INTRODUCTION
[1] Censorship of online pornography raises extremely complex and
contentious issues of morality and the role of government –
there is no
definitive answer about the wisdom of such censorship. Nor is there any
definitive ‘feminist’ perspective
on online pornography, or
pornography more generally. In fact, two feminist
camps,
[2] led by Nadine Strossen
defending pornography on the one
hand,
[3] and Catharine MacKinnon and
Andrea Dworkin vehemently opposing it on the
other,
[4] have forcefully disputed the
impact of pornography and its censorship on women’s rights. The dearth of
reliable evidence about
the prevalence and effects of pornography exacerbates
the difficulties in resolving this dispute.
[2] In Australia, while the
Australian Constitution affords limited rights of speech and
communication,[5] it contains no
express guarantee of free speech equivalent to the First Amendment to the
Constitution of the United States of America (‘US
Constitution’) to protect the chaos of the Internet. This may make it
harder to define the values of Australian society and the interests
to be
balanced in dealing with online pornography.
[3] The Federal Government has
enacted restrictive legislation in an attempt to limit access to online
pornography by Australians
in the form of the Broadcasting Services Amendment
(Online Services) Act 1999 (Cth) (‘Online Services Act’).
Rather than focusing on the technical operation or workability of the
legislation, this article examines the rationales
for freedom of speech and
censorship as a basis for assessing the Australian approach. At the outset (in
Part II), I outline a workable
definition of pornography. I then go on to
consider freedom of speech in Part III and the underlying reasons for accepting
this as
an important value. Against this background, I then examine the specific
conflict between pornography and freedom of speech, with
particular emphasis on
the potential harms associated with pornography (in Part IV), pornography on the
Internet (in Part V), and
the treatment of the conflict by US courts (in Part
VI). In the concluding section I consider Australia’s recognition of
rights
such as the freedom of speech and briefly evaluate the Australian
legislation in the context of that recognition.
II DEFINING
PORNOGRAPHY
[4] It is extremely difficult to define pornography with precision in the
abstract. Many proposed definitions use ambiguous terms
and rely on subjective
determinations.
[6] The Supreme Court
of the United States of America (‘US’) has drawn a distinction
between ‘obscene’ speech,
which is unprotected by the First
Amendment to the
US Constitution (and can therefore be prohibited based
on its content), and merely ‘indecent’ speech, which is protected.
In
Miller v California
(‘
Miller’),
[7]
the Court held that obscene speech arises where a work:
(a) taken as a
whole, and judged by the average person, applying contemporary community
standards,
[8] appeals to the prurient
interest in sex;
(b) portrays sexual conduct in a patently offensive way; and
(c) taken as a whole, does not have serious literary, artistic, political,
or scientific value.
[5] In contrast to obscene speech, indecent speech ‘merely refers to
non-conformance with accepted standards of
morality’.
[9] Indecent speech
may
include patently offensive words dealing with
sex or excretion, which may have serious literary, artistic, political, or
scientific
value.
[10] Prurient
appeal is not necessarily an element of indecent
speech.
[11]
[6] Various people
have challenged the distinction between obscene and indecent speech and proposed
alternative definitions. Dworkin
notes that ‘prurient’ means
burning, sexually arousing, and (empirically) causing
erection.[12] It is thus defined by
a male physiological response. MacKinnon criticises the definition of
obscenity on several levels. She queries why the work should be taken
as a whole
and why its value needs to be considered at all if a woman is being
subordinated:[13]
Obscenity, in this light, is a moral idea; an idea about judgements of good and
bad. Pornography, by contrast, is a political practice,
a practice of power and
powerlessness. Obscenity is ideational and abstract; pornography is concrete and
substantive.[14]
[7] In
mid-1980, MacKinnon and Dworkin developed an ordinance intended to provide women
with civil rights against producers of pornography
where the women could show
that they suffered harm because of
it.
[15] The ordinance recognised
harms including assault due to pornography and subordination of women through
trafficking in pornography.
[16]
Although the Minneapolis City Council passed the ordinance, the Mayor of
Minneapolis twice vetoed the ordinance. It later passed
into law in
Indianapolis, but the US Federal Court of Appeal struck it
down.
[17]
[8] The ordinance uses
the term ‘pornography’, which is defined as ‘the graphic
sexually explicit subordination
of women through pictures and/or words that also
includes’ one or more specified factors, such as women being presented as
dehumanised sexual objects, enjoying pain or rape, cut up or mutilated, or in
positions of sexual submission, servility, or
display.[18] The definition extends
to the use of men, children or transsexuals in the same
way.[19]
[9] Strossen, the
President of the American Civil Liberties Union, suggests that the
‘MacDworkinites’ deliberately use
the term ‘pornography’
because of its pejorative
connotations.[20] She, too,
criticises the Supreme Court’s definition of ‘obscenity’
because of its ambiguity and
subjectivity,[21] but prefers the
terms ‘sexually explicit’ and ‘sexually oriented’
speech.[22]
[10] In this
article, I use the term ‘pornography’ not to capitalise on its
negative connotations but because it is a
term that most individuals understand.
Although this term is difficult to
define,[23] most people have their
own views as to what it means. In judicial terms, this may not be a particularly
helpful formulation, but
for the purpose of understanding the arguments on both
sides of the pornography/free speech debate, it serves well enough. Pornography
is generally intended to sexually arouse and may in fact do so, depending on the
audience. It often includes full or partial nudity,
but nudity alone is neither
necessary nor sufficient to create pornography. It also typically includes a
depiction or suggestion
of sexual activity, but interpretation of this differs
depending on the audience. I have focused on this type of material precisely
because it is hard to defend. There is a much easier case for defending sex
education or nude sculptures. At the same time, my description
is weighted
towards neither the most innocent material (as Strossen’s references to
sexually explicit speech often are) nor
the most violent and vile material (as
the MacKinnon-Dworkin definition of pornography is). It is likely to encompass
obscene speech
as well as much indecent speech as defined by the US Supreme
Court.
III PURSUING FREEDOM OF
SPEECH
A Formal Recognition of
the Freedom
[11] Freedom of speech has long been a cherished human value, and several
different nations, regions and international conventions
recognise it as an
individual right that deserves and requires protection. Perhaps the most well
known protection given to freedom
of speech is in the First Amendment to the
US Constitution, which states:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom
of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
[12] The
Canadian
Charter of Rights and Freedoms also specifically protects freedom of speech.
The relevant sections came into force in 1982.
Section 2 provides that:
Everyone has the following fundamental freedoms: ...
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication.
[13] Unlike the First
Amendment, which contains no express limitation on freedom of speech, the
Canadian protection is subject to
the overarching limitation in
s 1:
The Canadian Charter of Rights and Freedoms 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.
[14] At an international level, art 19 of the
International Covenant on Civil and Political Rights
(‘
ICCPR’)
[24]
protects freedom of speech in the following terms:
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 of frontiers, either orally, in writing or in print, in the form of
art, or through any other
media of his choice.
3. 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 others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
[15] In addition to
the restrictions on the right of free speech contained in art 19(3) of the
ICCPR, art 20 contains express prohibitions on certain types of speech:
‘propaganda for war’, and what would ordinarily be
termed
‘hate speech’ (for example, advocacy of racial hatred that
constitutes incitement to violence). Article 20 is
somewhat ambiguous, and it is
unclear whether it is intended to prohibit hate speech in the absence of
violence.
[25] It is also the subject
of a reservation by the US, since it requires prohibition of at least some
material that would otherwise be
protected by the First
Amendment.
[26]
[16] Article 10 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms[27] protects freedom of
expression in a manner broadly similar to that of the ICCPR, although it
specifically states that this is not to ‘prevent States from requiring the
licensing of broadcasting, television
or cinema enterprises’. The European
protection is also subject to a greater number of conditions than is art 19 of
the ICCPR. Under art 10, the exercise of freedom of expression may be
subject to prohibitions ‘as are prescribed by law and are necessary
in a
democratic society’ in the interests of a range of factors, including for
the prevention of disorder or crime, or for
the protection of health or
morals.
B Foundations of the
Freedom
[17] The right to freedom of speech may be based on several different
principles. The following is a non-exhaustive list of some of
the most commonly
cited goals or justifications of the
right.
[28]
1 Advancement of Knowledge and Discovery of
Truth
[18] This is John Stuart Mill’s argument – that free speech is
required to enable the ascertainment of truth and advancement
of
knowledge.
[29] This is also known as
the ‘marketplace of ideas’ rationale, since it suggests that in a
free market the exchange of ideas
will enable the truth to be
established.
[30] Thus the more
viewpoints expressed, the
better.
[31] Baker suggests that this
theory dominates US Supreme Court discussions of free
speech.
[32] However, free speech
does not always produce truth, and protecting Nazi messages or pornography
demands some justification other
than truth discovery. Similarly, by itself,
this justification does not explain why statements of mere opinion that are
neither true
nor false should be
protected.
[33]
2 Effective Participation in
Decision-making by All Members of Society
[19] This is the goal of democracy, typically aligned with Alexander
Meiklejohn.
[34] If democracy is to
work properly, all members of society must have access to all relevant
information. Information that concerns
public affairs or the political process
therefore deserves particular protection. The core of this goal is democratic
rather than
libertarian, and social rather than
individualistic.
[35] The link
between democracy and freedom of speech is somewhat paradoxical. If the members
of a society, acting democratically and
with proper information, decide to
prohibit or restrict particular kinds of speech, the goal of democracy alone
cannot explain why
this should not be
allowed.
[36] Few would suggest that
pornography is political in the sense that denial of the right to make,
distribute or view pornography will
infringe one’s ability to participate
in the democratic process.
[37] This
principle therefore does little to show why pornography should be
unregulated.
3 Individual Autonomy and Self-fulfilment
[20] This goal points to the value of speech, not in bringing about
particular results (eg, by advocating a certain change in the
law which results
in that change being implemented), but in the act of speech itself. Through
speech, we communicate to others aspects
of ourselves, define better who we are,
and are better able to achieve
self-fulfilment.
[38] If our speech
is suppressed, we are unable to exercise full autonomy. This goal also focuses
on the autonomy of the
listener. If we restrict the listener’s
access to certain viewpoints, on the ground that they may harm the listener, we
infringe the
listener’s
autonomy.
[39] The principle of moral
autonomy is probably the most relevant and convincing reason for freedom in the
context of pornography. Although
different types and examples of speech clearly
have different values, the importance of individual autonomy lies in deciding or
choosing
the hierarchy of values to assign to speech, rather than having that
hierarchy determined by the government.
4 Balance Between Stability and Change
[21] If a society restricts speech, or particular kinds of speech , it is
more likely to suppress ideas of a radical or progressive
nature than
conventional or conservative ideas, thereby hindering its own development. In
the context of pornography, it is quite
clear that a majority of people at one
time may consider as deeply offensive or immoral material that is later widely
regarded as
perfectly innocent.
[40]
Similarly, the sensibilities of people of one country may be far more easily
affected than those of another country. It is because
of the progression of
ideas that novels such as James Joyce’s
Ulysses were once highly
controversial and liable to be banned in the American ‘crusades’ led
by the likes of Anthony
Comstock,
[41] but are now mandatory
texts in literature courses. Equally, while the Beatles singing ‘I get
high with a little help from my friends’ causes little
consternation today, censors have new targets in graphic songs about cop
killing,
non-consensual sex and anarchic
violence.
[42]
5 Tolerance
[22] Moving away from the perspective of the speaker, freedom of speech is
important because of its effect on the audience. If an
audience is exposed to a
range of different ideas expressed by different people, the community as a whole
is more likely to develop
a character of
tolerance.
[43] Again, it is
difficult to explain this rationale in the context of Nazi hate speech.
Protecting a neo-Nazi march in Skokie, Illinois
could hardly be justified on the
basis that it will promote tolerance among
Jews.
[44] On the other hand,
tolerance is an important value when it comes to pornography. Much sexual
conduct that would once have been deemed
abnormal or deviant is now frequently
accepted (although some communities have progressed further in this regard than
others), demonstrating
the need to think critically about the absolutism of what
is right and good in any given time and place. Tolerance is therefore a
relevant
concern, but obviously not a sufficient justification on its own for allowing
pornography to go unregulated.
IV PORNOGRAPHY AND
HARM
[23] According to the ‘harm principle’, an individual’s
freedom of speech (or indeed any other individual freedom
or right) may be
restricted only to the extent that its exercise would harm
others.
[45] Put another way,
‘the government should not interfere with communication that has no
potential for harm’.
[46]
Pornography has the potential to harm various members of society in different
ways, as discussed in the following section.
A Harming
Participants
[24] A key argument for censorship of pornography relates to its effects on
the participants. Pornography involves more than ‘mere
fantasy’ or
‘mere speech’ – it is
real.
[47] For example, pornography
is often said to involve acts of prostitution; if prostitution is simply the
exchange of money for sex,
[48]
pornography should arguably be regulated in the same manner as prostitution. If
this argument is accepted, this suggests that a society
that prohibits
prostitution, or imposes time, place or manner restrictions on prostitution,
should similarly prohibit or restrict
pornography. Moreover, various
commentators report acts of rape,
assault
[49] and even murder
occurring either in front of the camera or behind the scenes because of the
typical environment in which pornography
is
produced.
[50] The producers,
directors and consumers of pornography are largely men, monopolising information
and media, with a tendency to characterise
women as objects in their
pornographic material.
[51] The harm
suffered by children in pornography is of particular concern. Whereas a woman
involved in pornography can consent to her
involvement, a child, by definition,
cannot. This means that ‘[e]very piece of child pornography ... is a
record of the sexual
use/abuse of the children
involved’.
[52] These children
are typically poor, and often from third world
countries.
[53] Our revulsion at
child sexual abuse relates to the powerlessness of children, and the notion of
childhood as an innocent and peaceful
time when we are protected from the worst
of the world.
[54]
[25] The
real-life experiences of women and children involved in pornography constitute
both an important motivator for anti-pornography
feminists, as well as a
significant part of their arguments. These feminists often rely on presenting
graphic details of scenarios
contained in pornographic
materials,[55] and of the
experiences of women in those
materials,[56] to get their message
across. In contrast, free speech advocates typically steer away from such vivid
descriptions. Indeed, Strossen
has been criticised for not facing the reality of
pornography:
She approaches the pornography issue theoretically, never delving into the
realities of pornography or the real injuries it creates.
Strossen comments that
antipornography feminists often include in their works detailed accounts of
pornographic pictures or films,
insinuating that this is so because they like
pornography and need a reason to view or talk about it. This ludicrous
insinuation
demonstrates Strossen’s own discomfort with facing
pornography.[57]
[26] It
is easy to channel the horror one feels at the experiences of women involved in
pornography into a conviction that the state
should prohibit pornography in its
entirety. No one would dispute that women should not be subjected to physical or
sexual abuse,
whether from strangers, employers or family members. Yet these
things really happen, and not only in the context of pornography or
prostitution. Exposing these experiences to the public for the purpose of
condemning pornography is akin to showing a jury, in a
murder trial, photographs
of the victim’s bludgeoned body: the prosecution intends to focus the
jury’s minds on the bloody
aftermath rather than on how the accused is
actually linked to the crime. It is understandable, then, that Strossen chooses
not to
focus on the sordid details of pornography, while Dworkin constantly
restates them, since the two advocates view the role of pornography
in producing
these outcomes very differently.
[27] Putting to one side the question of
child pornography, it is simplistic and paternalistic to suggest that adult
women involved
in making pornography are invariably forced into the industry
(for example, through physical or financial coercion), or that no women
enjoy
making pornography. Depending on the woman’s individual perspective, she
will not necessarily be harmed simply by participation
in pornography. Moreover,
the more pressing question is not whether women are ever mistreated in society
or in pornography (as they
undoubtedly are), but whether restricting or
prohibiting the production of pornography will prevent or minimise that
mistreatment.
This question will be further discussed below in Part IV(E) of
this article.
B Harming
Viewers
[28] Another argument for censorship of pornography is that it harms
viewers by corrupting their morals. This argument assumes that
there is a
singular reference point for morality, and that that reference point condemns
pornography now and will continue to do
so in the future. Such an assumption
ignores the very different values in different parts of society and in different
generations,
as well as the right of individuals to decide for themselves what
is acceptable to them and what they wish to view. If the state
censors
pornography in order to prevent moral corruption of a
willing
viewer,
[58] this departs from the
principle that speech should be restricted only to the extent necessary to
prevent harm to others.
[59]
Moreover, liberal theory has typically shied away from characterising
‘offence’ as harm,
[60]
positing instead that the law should not protect a person from accidentally
viewing pornography to the extent that this would restrict
others from
deliberately viewing it.
[29] Anti-pornography feminists are less likely
today to rely on arguments about harm to ‘voluntary consumers’ and
‘involuntary
consumers’ than on the other harms described in this
article.[61] The only exception to
this tendency is in relation to children. Children are seen as needing
additional protection because they lack
the capacity to make informed decisions
about what they are viewing, and because extreme material may
‘corrupt’ them
or damage their development. Liberalists may share
this concern and agree that regulation is needed to protect children from
pornography,
provided that protecting children does not require simultaneously
protecting adults. The notion of shielding adults from viewing
pornography under
the guise of protecting children is particularly relevant to the Online
Services Act, discussed further
below.[62]
C Harm Through
Viewers
[30] Pornography may also cause indirect harm, because viewers may be more
likely to commit crimes against women after watching it.
This may be because
they become obsessed with particular pornographic situations they have watched,
or simply because they are exposed
to a culture of misogyny and the aggressive
domination of women through pornography. There are few reliable statistics on
the causative
effects of pornography on crime. However, while it is difficult to
prove a positive, causal relationship, anecdotal and experimental
evidence
suggests there may be some
connection.
[63]
[31] In
Dworkin’s view, pornography socialises men to rape – it is the
cause of the inequality between men and
women.[64] Itzin agrees that
pornography sexualises violence, legitimates the abuse of women, and educates
men in the subordination of
women.[65] However, she considers
that this is only one of a number of factors, such as economic subordination,
that contribute to the oppression
of women in
society.[66] MacKinnon similarly
highlights the chain of causation between pornographic speech and sexual
abuse.[67] She refers to pornography
‘making’ rapists unaware of the absence of consent,
‘creating’ a person who sees
no difference between violence and sex,
and ‘producing’ sex
murderers.[68]
[32] This
reasoning tends towards seeing men as predisposed to commit violence and sexual
abuse. ‘To see men as naturally programmed
for violence is to endorse the
most conservative views on human nature, to see it as unchanging and essentially
unchangeable.’[69] This raises
the dangerous proposition that men cannot change their ‘innate’
behaviour towards women any more than they
can change their ‘innate’
responses to pornography. This goes against the history of the feminist
movement, which has
consistently sought to dispel stereotypes about men and
women. Furthermore, if coupled with an argument for the prohibition of
pornography,
this analysis is also somewhat contradictory. If men are
predisposed to rape, it is difficult to see why the prohibition of pornography
(even if it were completely effective in limiting production of pornography)
would prevent rape from occurring. Instead of blaming
pornography or
pornographers, viewers of pornography should be expected to have both the
capacity to analyse the material, and responsibility for their
subsequent actions.
D Harm Through
Presentation – Acts of Subordination
[33] In the preceding sections I have examined how pornography may impose
harm in three ways: by allowing abuse of women involved
in pornography; by
corrupting viewers’ morals; and by causing viewers to abuse women. These
are all ‘perlocutionary’
effects of pornography – its causal
consequences. Pornography may impose a fourth harm: the harm committed by the
mere performance
or presentation of the pornographic material, ie, the harm that
results simply from the ‘illocutionary’ act of pornographic
speech.
For example, making a pornographic statement can be likened to other speech-acts
such as saying ‘I do’ (an act
of
marriage),
[70] ordering someone to
‘drink this poison’ (an act of
murder)
[71] or saying
‘Hispanics need not apply’ (an act of unequal
treatment).
[72] Where the person
saying ‘Hispanics need not apply’ has authority to enforce that rule
(ie, authority to exclude Hispanics
from a particular job), Hispanics are
subordinated. Advocates like MacKinnon argue that pornographic images
subordinate women in
a similar way in and of
themselves.
[73]
[34] This
argument assumes that pornographers have the requisite authority to direct,
through their pornography, the way in which
women should be treated or sex
should occur in society. If they lack such authority, their pornography cannot,
of itself, subordinate
women. Sadurski identifies the two elements of authority
as ‘a normative ingredient of “legitimacy” and an
empirical ingredient of
“control”’.[74]
Although pornographers may influence people’s thinking on sex, they do not
have this kind of authority. Even assuming that
the relevant audience consists
of men and boys who watch pornography for entertainment and to determine what is
sexually legitimate,[75] it is
difficult to imagine that such an audience considers that the producers of
pornography have the right to determine what is
right and wrong in matters of
sex, or that they have the capacity to enforce any such
determinations.[76] Accordingly, it
is difficult to substantiate the harm of actual subordination through the
presentation of pornography alone.
[35] Even if pornographers possessed the
requisite authority, the assumption that pornographic images encourage abuse of
women ignores
the fact that different people may interpret such images in
different ways and from a number of different
viewpoints.[77] Strossen emphasises
that ‘ambiguous and positive interpretations apply to the full range of
sexual speech, including violent
imagery and imagery that might well be labelled
“subordinating” or “degrading”, such as rape scenes and
scenes
dramatizing the so-called rape myth – namely, that women want to be
raped’.[78] Women may
fantasise about rape because this avoids any feelings of guilt that might
otherwise be associated with the sex
involved,[79] or to add change to
their experience when real change in their life may be impossible or
unwanted.[80] The key is that in the
fantasy the fantasiser is in control. Actual rape – unwanted sex –
plays no part.[81]
E Minimising the
Harm
[36] In May 2000, the General Assembly of the United Nations adopted two
optional protocols to the
Convention on the Rights of the Child,
reflecting the universal desire to protect
children.
[82] These protocols
requires states that are parties to criminalise, inter alia, the offering,
delivering or accepting of a child for the purposes of
sexual exploitation,
prostitution or pornography. The particular status of children requires that
they be protected from pornography,
not necessarily through banning the
production of pornography or the sale of pornographic materials, but certainly
through criminal
laws preventing the abuse of children. Pornographic material
may often provide evidence of such abuse. However, Strossen argues that
women
are distinguishable from children in this context because they can give real
consent to perform in or produce pornography,
and in many cases they
do.
[83] Where other illegal activity
(such as rape or murder) is associated with pornography, certainly that activity
should be forcefully
prosecuted under applicable laws. However, the mere
existence of such activity in the pornography industry cannot justify the
imposition
of censorship in place of vigorous enforcement of existing criminal
laws.
[37] Ironically, a crucial argument against prohibition of pornography
is that the best way to counter ‘bad’ speech is
with more
speech.[84] Thus, speaking out
against pornography (as Dworkin does so powerfully) may be a more effective
means of limiting its popularity and
increasing consumer awareness than simply
banning it.[85] It is true that many
marginalised people may be unable to speak
out,[86] for example because of
poverty, race or poor education. For them, the freedom to speak holds little
comfort. Restricting the speech
of others may thus be justified on the basis
that it will provide further opportunities for members of minorities or
marginalised
groups to speak.[87]
Specifically, MacKinnon maintains that pornography silences women – not
only those participating in
pornography[88] but all
women:[89] ‘[t]here is a
connection between the silence enforced on women ... and the noise of
pornography that surrounds
us’.[90] She is particularly
concerned about the silencing effect of pornography on speech against sexual
abuse.[91] Yet it is arguable that
victims of sexual abuse are more likely to be reluctant to speak out because
their abusers have threatened
them with retaliation or because of their feelings
of shame and fear of being disbelieved than because of pornography. Their
abusers
might use or refer to pornography in abusing them, but pornography is
more likely to play an incidental role rather than to constitute
the root of the
abuse or the aftermath of silence. This suggests that prohibiting pornography
will not necessarily enable victims
of sexual abuse to speak freely.
[38] Prohibiting pornography is a protective measure which casts women in
the role of victims in need of such protection and unable
to fight back or
protect themselves. In addition, a ban on pornography, far from preventing
subordination of women throughout society,
is likely to drive pornography
underground in all its forms. Pornography will still exist, and any associated
negative effects will
continue. Moreover, the women involved may suffer even
greater harms. Without pornographic films being legally available in public,
officials will not easily witness or scrutinize what happens on the screen,
whether for the purposes of classification or otherwise.
The police will find it
harder to locate and monitor producers of pornography, and the state will be
unable to regulate the working
conditions of women
involved.[92] The demand for
pornography will remain, and may even
increase.[93] Dworkin herself, while
condemning pornography, recognises the importance of pornography being exposed
and dealt with in the open:
If pornography is hidden, it is still accessible to men as a male right of
access to women; its injuries to the status of women are
safe and secure in
those hidden rooms, behind those opaque covers; the abuses of women are
sustained as a private right supported
by public
policy.[94]
[39] Strossen
points out that a law prohibiting pornography is also likely to be
disproportionately used against the expression of
disempowered people with
minority interests, such as homosexuals and
feminists.
[95] Thus, history shows
that censorship has been used to prevent the spread of information about birth
control,
[96] safe
sex
[97] and
abortion.
[98] The First Amendment
has allowed disabled people, homosexuals and women to learn about and celebrate
their sexuality.
[99] Not all
pornography will consist of such ‘good speech’. However, as
suggested above, where pornography incorporates extremes
of behaviour that seem
to go beyond the value of freedom of speech, I believe the key to successful
regulation lies not in restricting
the pornography itself but in vigorously
enforcing other criminal laws that may be broken in its production or
sale.
V PORNOGRAPHY ON THE
INTERNET
A Zoning
Technology
[40] Pornography raises essentially the same concerns and interests in any
medium. However, the Internet has a number of unusual features
that affect the
regulation of online pornography. The technology of the Internet is constantly
and rapidly developing, and well targeted
regulation clearly has the potential
to succeed in restricting access by particular classes of people to particular
Internet sites.
This could be done, for example, by requiring first time users
to ‘adult’ sites to pay a fee by credit card to ensure
that they are
adults, and thereafter to access the sites using a
password.
[100] While such a system
would contain some flaws (for example, where children learn their parents’
passwords), on the whole it
would be more accurate in differentially restricting
children’s access to Internet pornography than, say, channelling adult
television broadcasts into late night timeslots is in restricting
children’s access to television pornography. In the latter
case, the
regulation may be at once too narrow and too broad. That is, some children will
stay up to watch the broadcasts, while
some adults will be unable or unwilling
to do so such that their viewing choices are effectively restricted. The
Internet offers
the potential to overcome some of these
problems.
[41] Lawrence Lessig compares this kind of ‘zoning’ in
cyberspace to that which occurs in real space. Like anything else,
pornography
is subject to zoning in real space by a combination of laws and regulations,
contractual relationships, and social norms
and rules. Thus, pornography is sold
only in certain outlets and in certain areas, and typically only to people above
a certain age.[101] If
technologies are implemented to restrict children’s access to pornography
on the Internet, the zoning in real space will
be imitated in cyberspace, only
it will be even more precise.[102]
Taken at face value, this form of transplanting real space zoning into
cyberspace may seem innocent. As Lessig puts it, ‘if
zoning is a perfectly
permissible activity in real space, what possible argument would there be that
this zoning is impermissible
in
cyberspace?’.[103] Lessig
recognizes that the answer may depend less on whether we are satisfied with the
way zoning operates to restrict access to
pornography in real space than on
whether we are prepared to sacrifice the opportunities the Internet has to offer
on a broader scale,
without knowing the full extent of those opportunities, in
order to replicate the zoning we have created in real space. If we are
not
prepared to sacrifice those opportunities, there is every reason to resist
zoning in cyberspace.
B Open Forum
[42] While the Internet may enable near perfect regulation, it also
potentially enables regulation-free communication and interaction.
This is
another feature that distinguishes it from real space. A person can relatively
easily gain access to the Internet, whether
to view material already there or
establish a new site.
[104] Once
accessed, individual users and content providers have a significant degree of
control over what they see and what they provide
for others to
see.
[105] Originally at least,
according to Lessig,
cyberspace was a place where this ideal of zoning was rejected. Here was one
place where borders were not to be boundaries; access
was to be open and free;
people could enter and engage without revealing who they were; massive search
engines would collect, in
the most democratic way possible, everything that
cyberspace had to
offer.[106]
[43] Lessig’s
reference to borders is interesting. If the Internet can be used to replicate
zoning in real space by restricting
access to pornography, arguably it could
also be used to replicate national and geographic borders. Some commentators
contend that
regulation of the Internet in this manner is impossible because of
its nature and technological
limitations.
[107] However, because
we write the code that is the architecture of the Internet, the borderless world
of the Internet could theoretically
become a segregated one in which citizens of
one country could only access sites hosted in their own country. The segregation
could
even extend to e-mail. From a censorship perspective, this is another
example of a sweeping and (too) easy solution for regulators.
In Australia, for
example, an international effort to nationalise the Internet would eliminate the
difficulties of restricting access
to X-rated material when so much of it is
hosted offshore.
[108] It would
minimise the difficulties of enforcing laws against persons outside the
jurisdiction. However, at the same time, it would
involve throwing away the
benefits of unrestricted international e-commerce and electronic communication,
and curbing the development
of the Internet and related technologies.
[44] Zoning, at least as created by social norms, may be inevitable to some
extent even on the Internet. Thus, users that do not comply
with
‘netiquette’ (for example, by sending unsolicited advertisements)
may be sanctioned through electronic letter
bombs.[109] Nevertheless, the
relatively low costs and ease of access, and the absence of bottlenecks or
monopoly power on the Internet make
it a unique forum for communicating with an
enormous audience simultaneously. Further, even though limited zoning does exist
on the
Internet, this does not change the fact that it is much easier to look at
pornography in the comfort and privacy of one’s own
home than to go to an
X-rated cinema. The Internet pornography consumer avoids even the social anxiety
that may arise when hiring
a pornographic video or buying a pornographic
magazine. Indeed, this is one of the fears of pro-censorship advocates. The
freedom
of the Internet means pornography is around every corner, ‘just a
click away’.
[45] Just how much pornography is there on the Internet?
Critics have widely discredited a major study into Internet
usage,[110] and little other
research is available to establish the degree to which pornography has
proliferated on the Internet. Moreover, the
Internet is constantly growing and
changing, so that any such research is likely to become rapidly out of date.
This makes it difficult
to measure with precision the amount of pornography on
the Internet at any given time, but common experience suggests that pornography
is readily available online, whether you want to see it or not.
C Non-assaultive
Nature?
[46] Some judges and commentators have suggested that the Internet is not
as ‘assaultive’ as broadcast media. Since one
has to navigate
deliberately by clicking through the Internet and giving passwords as required,
it has been suggested that it is
very unlikely that an unwanted pornographic
image or file would appear on screen
unbidden.
[111] In contrast, one
might turn on the radio or television and be surprised by a graphic display of
offensive words or pictures before
having a chance to change the channel or
decide not to watch or
listen.
[112]
[47] This seems a
rather dubious distinction. A cursory look at several websites demonstrates just
how assaultive the Internet may
be. First, not all pornographic sites require a
password to enter, and those that do often include a ‘free tour’,
accessible
by anyone who clicks in the right place, accidentally or otherwise.
Secondly, where an initial screen requests a password before
entry, there will
often be vivid pornographic images on the initial screen to entice the user to
continue. Thirdly, it is not true
that Internet users only reach pornographic
sites intentionally. Users may come across pornographic sites unexpectedly when
doing
Internet searches, or when typing seemingly innocent addresses. Finally,
these sites have developed an alarming use of technology
and strategy to obtain
‘hits’ (presumably to raise advertising revenue and sale value) and
encourage new memberships.
Often, clicking the ‘Back’ button on your
browser will take you not to the last screen you were looking at, but to other
pornographic sites, and closing the pornographic window will take you to still
more such sites. Thus, the characterisation of the
Internet as
‘non-assaultive’ may ultimately prove an inappropriate basis for
regulating the Internet any more or less
strictly than broadcast
media.
VI THE UNITED
STATES’ APPROACH TO PORNOGRAPHY
A Regulating Indecent
Speech Generally
[48] In the US, the First Amendment protects indecent speech as described
in
Federal Communications Commission v Pacifica Foundation
(‘
Pacifica’).
[113]
However, according to the test set out in
Sable Communications of
California, Inc v Federal Communications Commission
(‘
Sable’),
[114]
the state may nevertheless regulate indecent speech, based on its content,
in order to promote a compelling state interest, provided
that the regulation is
‘narrowly tailored’ to that
interest.
[115] In other words, the
least restrictive means of regulation must be used. For example, the Supreme
Court has held unconstitutional
a statutory provision that effectively required
certain cable television operators to ‘channel’ their material into
the
hours between 10pm and
6am.
[116] The provision applied
only to channels primarily dedicated to sexually-oriented programming, and was
aimed at preventing children
from viewing these channels, without the knowledge
or permission of their parents, as a result of ‘signal bleed’.
Signal
bleed occurs where images from unordered channels flash onto other
channels – the images often appear only for a moment and
are difficult to
make out. According to the Court, a less restrictive means of protecting
children from viewing such material would
have been to require the cable
operator to fully block any channel on request by a household that did not wish
to receive that channel.
[49] US courts have tended to draw a distinction
between different types of media in determining indecency cases, so that the
Sable test does not always apply. Radio and television broadcasting are
typically regarded as less deserving of First Amendment protection
than other
media, such as newspapers, cable television and
film.[117] Courts are therefore
more likely to uphold regulations governing the time and manner in which
indecent programming may be aired on
broadcast radio or television, for example,
by requiring channelling of indecent programs into late hours of the
night.[118] This distinction is
largely attributable to the perceived ‘assaultive’ nature of
broadcast radio and television. Broadcast
media ‘have established a
uniquely pervasive presence in the lives of all Americans’ and confront
individuals not only
in public but also at
home.[119] In addition, as
mentioned above, because one does not necessarily know what is on before turning
on the television or radio, there
is a risk that viewers or listeners will be
unwillingly exposed to offensive material. It is no answer that the viewer can
change
the channel or turn the television off, as this does not help if the
exposure has already occurred – the damage is
done.[120] Nor are introductory
warnings about the content of a program always effective, since one may turn on
in the middle of the program
without having heard or seen the
warning.[121]
[50] US courts
typically view indecent material distributed via the broadcast media as
particularly threatening to children, since
even those too young to read can
access such media. Thus, the Supreme Court has held that the Miller
definition of obscenity is broader where children are involved, and the
state has more leeway in regulating speech in this
context.[122] In Pacifica,
the complainant was in fact a father who was unhappy at having unwittingly
exposed his young son to a radio broadcast of ‘Filthy
Words’ while
driving in his car.[123] In that
case, the Supreme Court upheld the Federal Communications Commission’s
declaratory order granting a complaint against
the radio station.
B The
Communications Decency Act
[51] In 1996, the US Congress created two criminal offences related to
Internet content under the
Communications Decency Act
(‘
CDA’).
[124]
The
CDA provided that it was an offence to:
(a) initiate the
transmission of an obscene or indecent communication by means of a
telecommunications device, knowing that the recipient
is under 18 years of
age;
[125] or
(b) use an
interactive computer service to send or display to a person under 18 years of
age a communication that describes sexual
or excretory activities or organs in
terms that are patently offensive as measured by contemporary community
standards.
[126]
[52] The words ‘indecent’ and ‘patently offensive’
as used in the
CDA were not defined. Two defences were available: taking
reasonable, effective and appropriate action in good faith to restrict access
by
minors, and restricting access by means of an ‘adult verification
mechanism’, such as requiring a credit card before
entering an Internet
site.
[127] In a 1997 case,
Janet Reno, Attorney General of the United States v American Civil Liberties
Union (‘
Reno No
1’),
[128] the Supreme
Court held that the
CDA infringed the First Amendment right to free
speech. The Court distinguished the Internet from broadcast media on three main
bases:
- The US has a history of extensive government regulation of broadcasting,
which is not matched in relation to the
Internet.[129] This reasoning
seems strikingly circular, and rather irrelevant. There does not appear to be
any meaningful or significant conclusion
to be drawn from a comparison between
the short history of the Internet and the much longer history of
broadcasting.
- The Internet is not as ‘invasive’ as broadcasting, and a user is
unlikely to access sexually explicit material by
accident.[130] For practical
reasons described in Part V(C) above, this is not necessarily true, perhaps
because of changes to the Internet since
the case was decided. Therefore this
also seems a rather weak basis for distinguishing between the treatment of
broadcasting and
the Internet.
- Broadcasting frequencies are scarce (or were originally), whereas access to
the Internet is relatively unlimited and
cheap.[131] This third distinction
provides the most persuasive reason for giving greater First Amendment
protection to the Internet than broadcasting.
As discussed in Part V(B) above,
the Internet provides a unique open forum for discussion, which should not be so
quickly or strictly
regulated such that it becomes indistinguishable from other
media.
[53] Since the Court distinguished the Internet from
broadcast media, it applied the narrow
Sable test in evaluating the
CDA,
[132] and held that the
provisions were not narrowly tailored enough to withstand the constitutional
challenge. Although there was a compelling
state interest in protecting minors,
the provisions were simply too broad. Other, less restrictive, means of
preventing indecent
communications to minors could include requiring that
indecent material be ‘tagged’ to enable better parental control
of
material accessed, and incorporating exceptions for material with artistic or
educational value.
[133] The Court
also held that the terms ‘patently offensive’ and
‘indecent’ were unconstitutionally vague, even
though the former was
based in part on the description of indecency in
Pacifica.
[134] This
vagueness threatened speech that fell outside the statute’s
scope,
[135] for example,
discussions about birth control practices, homosexuality, or the consequences of
prison rape.
[136] Finally, the
Court found that the defences were inadequate to render the provisions valid.
Implementing a credit card verification
system would be too costly, especially
for non-commercial sites, and in any case would mean adults without credit cards
would be
denied access.
[137] The
cost of implementing a password system as a method of age verification would
also be prohibitive for non-commercial
sites.
[138]
[54] Interestingly,
the Court noted the difficulty in applying a ‘community standards’
test (as found in s 223(d)(1) of
the CDA, as well as in the
Miller definition of
obscenity)[139] to the Internet.
Numerous ‘communities’ can be identified on the Internet, but it is
difficult to determine which community’s
standards to apply. This is
because the person uploading material onto the Internet may belong to one real
space community, while
users in countless other real space communities may
download the material, and another online community may discuss the
material.[140] The Court stated
that application of the community standards test would mean that ‘any
communication available to a nation-wide
audience will be judged by the
standards of the community most likely to be offended by the
message’.[141] This would
restrict the type of material that an individual could access and limit that
person’s autonomy in choosing what
material to view and what to ignore. It
would also mean that the progression of ideas would be stunted by the views of
the least
open-minded members of society.
[55] Congress’ attempt to
regulate online pornography in the CDA essentially failed because in
attempting to limit access by minors to indecent material on the Internet, it
effectively limited adult
access to such material as well. The constitutional
problem with the CDA was not that it attempted to limit such access by
minors (although the Court did not determine whether a blanket prohibition on
indecent
or patently offensive communications to minors would be
constitutional).[142] An
alternative form of regulation relying more closely on the technological
potential of the Internet would be for Congress to require
Internet pornography
providers to implement (and even develop) a device to discriminate between
different kinds of Internet content,
just as the V-chip discriminates between
television content. If all Internet sites were rated according to their content,
the so-called
‘C-chip’ could restrict access to sites with
particular ratings. The user could even choose from a number of rating systems,
which would then be automatically enforced by the C-chip. Lessig predicts, with
some trepidation, that the Supreme Court would uphold
such a statutorily
mandated system as
constitutional.[143]
C The Child
Online Protection Act
[56] Following
Reno No 1, Congress passed the
Child Online
Protection Act
(‘
COPA’)
[144]
in a second attempt to regulate Internet content. The
COPA made it an
offence to knowingly, and for commercial purposes, make a communication to a
minor by means of the Internet, where the
communication contained material
harmful to minors. It defined ‘material harmful to minors’ as
obscene and expressly
included a definition of obscenity based on
Miller[145] (ie, with
reference to ‘community
standards’).
[146]
Affirmative defences applied to commercial content providers who restricted
access to regulated material using an age verification
mechanism, including
requiring a credit card, personal identification, digital certificate, or
‘any other reasonable measures
that are feasible under available
technology’.
[147] On 22 June
2000, in
American Civil Liberties Union v Janet Reno, Attorney General of the
United States (‘
Reno No
2’),
[148] the US Court
of Appeals for the Third Circuit affirmed the grant of a preliminary injunction
preventing the enforcement of the
COPA. The main reason for the
affirmation was, as highlighted in
Reno No 1, the inclusion in the
definition of obscenity of a test based on ‘community standards’.
Such a test
essentially requires that every Web publisher subject to the statute abide by
the most restrictive and conservative state’s
community standards in order
to avoid criminal liability [because of the] inability of Web publishers to
restrict access to their
Web sites based on the geographic locale of the site
visitor.[149]
[57] Obviously,
it is impossible to identify a single community standard throughout the US, just
as it is impossible to identify such
a standard throughout Australia or the
world as a whole. This raises a difficulty for Congress, which may have to
develop some alternative
standard for assessing indecency and obscenity on the
Internet if it wishes to pursue the notion of Internet content regulation.
Alternatively, it might find that technology races ahead in offering a means to
target access to particular sites by people of particular
ages or in particular
regions. In either case, it will be up to the courts to determine whether the
resulting legislation is constitutional,
or whether the right to freedom of
speech in the First Amendment requires Congress to take a more restrained
approach.
VII AUSTRALIA’S
SOLUTION TO ONLINE PORNOGRAPHY
A Traditional Reluctance
About Rights[150]
[58] Rights in Australia are protected by democratic principles as well as
the federal constitutional system of checks and balances,
characterised by
judicial review and
bicameralism.
[151] The
Australian Constitution contains only limited guarantees of rights. Peter
Bailey lists specific ‘rights’ provisions of the
Australian
Constitution under the headings ‘Political Rights’, ‘Civil
and Legal Process Rights’, ‘Economic and Equality Rights’
and
‘Social Rights’.
[152]
These are not all strictly ‘guarantees’, and in some cases the
extent to which they involve the provision of rights is
debatable.
[153] Several provisions
of the
Australian Constitution are relevant to freedom of speech. For
example, in a broad sense, individuals have a right to free speech through the
requirement
of direct election by the people of members of the House of
Representatives,
[154] and through
the strict criteria for amending the
Australian Constitution by
referendum.
[155]
[59] Australia
has generally been reluctant to recognise or enforce specific individual rights
and freedoms. This reluctance is exemplified
by the pattern of sporadic calls
for a Bill of Rights in
Australia,[156] and the failure of
constitutional referenda for the entrenchment of greater guarantees of
rights.[157] The Australian people
rejected the proposed insertion of a guarantee of free speech and expression as
part of a broader referendum
proposal in
1944.[158] Hilary Charlesworth
suggests that this reluctance may be due in part to an enduring faith in the
system of responsible government
in a
democracy.[159] This is consistent
with Brian Galligan’s suggestion that equality ‘is the most
fundamental Australian value which pervades
social and political
life’.[160] While equality
and individual liberty are not necessarily mutually
exclusive,[161] if a society
focuses on justice in terms of giving everyone an equal say, this tends to
discount the fact that, without additional
protections, those in the minority
risk consistently having their interests subordinated in favour of the majority
view. In other
words, recognition of minority rights may run counter to the
utilitarian nature of Australian
society,[162] and democracy alone
will not necessarily protect those
rights.[163]
[60] Although the
Australian common law includes a principle that freedom of expression cannot be
legislatively curtailed except by
clear and unambiguous
language,[164] the right of
freedom of speech has traditionally played only a small role in judicial
decision-making.[165] For example,
in 1951, the High Court of Australia declared the Communist Party Dissolution
Act 1950 (Cth)
unconstitutional.[166] The Act
purported to dissolve the Communist Party, confiscate its
assets[167] and impose
disabilities on its members and
officers.[168] The Court’s
decision was based primarily, not on the rights of individuals to hold and
express particular political opinions,
but on the absence of a relevant head of
legislative power under which Parliament could enact such legislation in
accordance with
s 51 of the Australian Constitution. Individual
rights were only incidentally protected: ‘The court did not regard the
substance of the legislation as antithetical
to the rule of
law’.[169]
B Growing Recognition of
Rights
[61] Over the last decade, the Australian approach to human rights
principles and rights discourse in general has been changing. Rights
are
becoming a more important feature of the legal, social and political landscape.
One reason for this is the informal influence
of the US culture of civil
liberties, for example, through film, television, magazines and
newspapers.
[170] Another reason is
Australia’s role as a party to several human rights conventions, including
conventions guaranteeing freedom
of speech.
[62] Australia is a party to the
ICCPR.[171] Yet the
ICCPR has not been implemented in Australia through domestic legislation
(as required under Australian law if it is to take effect
domestically),[172] even though
the ICCPR is annexed to the Human Rights and Equal Opportunity Act
1986 (Cth).[173] However, in
the case of ambiguity, Australian courts may interpret a domestic statute with
regard to such conventions, and may prefer
a construction that is consistent
with Australia’s international
obligations.[174] Australia also
has a theoretical incentive to comply with international obligations because it
is now a party to the Optional Protocol to the International Covenant on
Civil and Political Rights (‘Optional
Protocol’).[175] This
means that Australian citizens can report violations of the ICCPR to the
Human Rights Committee of the United Nations. However, decisions of the
Committee are not binding. In practice, the Australian
Government’s
response is likely to depend on the degree of political will and pressure
associated with the particular
decision.[176]
[63] The High
Court has handed down several important decisions in recent years recognising
individual or human rights.[177]
For example, the High Court has recognised a specific freedom of political
communication as being implicit within the system of representative
government
established by the Australian
Constitution,[178] or at least
within the text of ss 7 and
24:[179]
Once it is recognized that a representative democracy is constitutionally
prescribed, the freedom of discussion which is essential
to sustain it is as
firmly entrenched in the Constitution as the system of government which the
Constitution expressly
ordains.[180]
[64] The
Court’s recognition of the importance of free political communication is
linked to the rationale of promoting democracy
through freedom of speech
generally.
[181] Rather than
extending to protect all or most speech, this implied freedom is restricted to
political communication, including: critiques
of or comments on
State
[182] or federal governments,
political leaders
[183] or public
agencies like the Industrial Relations
Commission;
[184] advertising by
political parties on radio or television during federal election
periods;
[185] and other speech
relevant to the development of public opinion or matters of public
affairs.
[186] Thus, although
non-verbal, visual images or symbolic speech may be
protected,
[187] this implied
freedom is unlikely to protect any form of sexually explicit material or
pornography, because of the absence of any
political content.
[65] The
freedom of political communication implied in the Australian Constitution
is therefore relatively limited in scope. It is focused on facilitating
representative government for the good of the community rather
than on allowing
individuals to develop personal autonomy or self-fulfilment through
speech.[188] As such, it involves
immunity from governmental action rather than regulation of matters arising
solely between private
parties,[189] ie, a freedom from
laws curtailing political communication rather than a freedom to
communicate.[190] It does not
guarantee voter equality,[191] and
has been held not to protect speech that encourages voters to fill in ballot
papers other than in accordance with the prescribed
method.[192] Finally, even if a
particular kind of speech is protected, a law that burdens that speech by its
terms may nevertheless be valid
if it is ‘reasonably appropriate and
adapted to serve a legitimate end the fulfilment of which is compatible with the
maintenance
of the constitutionally prescribed system of representative and
responsible government’ and the referendum procedure established
by
s 128.[193]
C The Online
Services Act
The passage of the Internet censorship legislation in Australia, and the
constitutional limits on the power of legislatures in the
United States to
regulate communications content, mean that Australia and the United States
represent extreme examples of the legal
responses of Western societies to the
problem of Internet
content.[194]
[66] On
1 January 2000,
[195]
Australia’s solution to online pornography came into effect, in the form
of the
Online Services Act. The main amendment effected by the
Online
Services Act was the insertion of a new Schedule 5 into the
Broadcasting
Services Act 1992 (Cth), which sets up a scheme for regulation of certain
content on the Internet. Internet content hosts and Internet service providers
(‘ISPs’) bear the primary burden of ‘cleaning up’ the
Internet in Australia, and substantial monetary penalties
apply for
non-compliance.
[196]
[67] Under
the Online Services Act, Internet content hosted in Australia may be the
subject of a ‘take down notice’ by the Australian Broadcasting
Authority
(‘ABA’). Such a notice directs the content host to cease
hosting particular content and not to host it in the future.
The classification
of content for the purposes of the notice is based on the Australian
classification scheme for films and television
programs, which includes the
categories of ‘R’ (restricted), ‘X’ (sexually explicit)
and ‘RC’
(refused
classification).[197] The ABA is
required to issue take down notices in respect of content hosted in Australia
that is prohibited or potentially prohibited,
being content that has been or is
substantially likely to be rated X or RC. Unless subject to a restricted access
system approved
by the ABA (for example, requiring a PIN to access), content
rated R is also prohibited.[198]
[68] The Online Services Act also regulates Internet content hosted
outside Australia, and the ABA can similarly issue a notice to an Australian ISP
to take reasonable
steps to prevent access to prohibited or potentially
prohibited content hosted offshore, in accordance with any applicable industry
code registered by the ABA, or any other applicable ABA
standard.[199] For offshore
content, the prohibition applies only to X and RC rated
material.[200] In late 1999, the
ABA registered a code of practice (developed by the Internet Industry
Association) allowing ISPs to provide end
users with approved content filters
rather than blocking content from overseas sites.
[69] Various commentators
have criticised the Online Services Act as being both ineffective in its
goal of limiting access to pornography on the
Internet,[201] and unduly onerous
in imposing strict obligations on
ISPs.[202] Peter Chen states that
the Online Services Act exemplifies ‘symbolic politics’:
‘the desire of the decision-maker to appear active on an issue when he or
she
is not’.[203] As such,
the Internet industry in Australia is likely to respond by hosting content
offshore if it is prohibited in
Australia.[204] This is an
illustration of the very nature of the Internet: ‘The Net interprets
censorship as damage and routes around
it’.[205] The principles
underlying the Online Services Act and the manner in which it has been
drafted are also confused and
inconsistent.[206]
[70] The
implementation of the Internet Industry Association’s code has also been
criticised. While ostensibly reducing the
extent of regulation, the unfortunate
effect of this change is that the acceptability in Australia of content hosted
overseas will
depend on ‘American beliefs and
values’,[207] since the
majority of commercial filtering services are designed by Americans. At the same
time, the usual difficulties with such
services
arise.[208] In particular, due to
technological limitations, content filters tend to be both over-inclusive and
under-inclusive, filtering out
desired material, such as educational material
about sex, while failing to filter out particularly offensive
material.[209] Moreover, users can
choose not to use the
filters.[210] This may be a
triumph for individual liberty, but it appears to represent an unwitting
departure from the strict, conservative approach
taken in the Online Services
Act as a whole.
[71] Aside from its poor drafting and unwanted practical
effects, the Online Services Act represents an insidious form of
regulation. It restricts access to material deemed offensive, even though such
material is available
in the form of books, magazines and
videos.[211] Moreover, while it
ostensibly derives from a concern about children’s access to such
material, it makes no attempt to limit
itself to children’s access and
restricts adult choices as
well.[212] This suggests an
unwillingness on the part of the Parliament to accept adults’ rights to
take responsibility for their own
viewing habits and to follow their own moral
compass. The Federal Government responded in this extreme fashion to the problem
of
pornography on the Internet in the absence of real contemplation and public
consideration of the competing arguments. The legislation
was heavily influenced
by the moral conservatism of the Senate Standing Committee on Information
Technologies,[213] and stands in
stark contrast to the US law on this issue.
VIII CONCLUSION
[72] The conflict between freedom of speech and pornography has produced
some strange bedfellows. Dworkin and MacKinnon accuse the
American Civil
Liberties Union of having economic ties with
pornographers.
[214] Strossen
cautions against the alignment of feminist anti-pornographers with right-wing
conservative and fundamentalist Christian
groups.
[215] The current US
approach to online pornography may be less than ideal, and should not
necessarily be followed in Australia. However,
it is clear that if Australia is
to reach a defensible position on online pornography it must give further
thought to issues of free
speech and harm. The reasons for protecting speech
– based on ideals of democracy, autonomy and equality – apply
equally
in Australia, despite the lack of an equivalent to the First Amendment.
The importance of this freedom must be compared to the lack
of evidence of a
direct causal relationship between pornography and physical, emotional and
social harm. More importantly, even if
such a relationship could be established,
banning pornography is unlikely to remove, and may well intensify, any harms it
presently
causes. Criminal conduct associated with pornography would be better
dealt with under laws directed specifically at that conduct
rather than by
censorship.
[73] The Online Services Act imposes a strict regime
limiting access by adults and children alike to material considered offensive by
a group of moral conservatives.
This approach conflicts with the rights of
individuals to determine what is appropriate for them and their children to see.
Further,
in the context of the Internet, there is even less reason to attempt to
regulate pornography than in other media. The nature of the
Internet means that,
at least at present, it is extremely difficult to stop people accessing material
they wish to see. The likely
impact of the legislation is therefore to move
pornographic material offshore without preventing it being accessed from
Australia.
While it may fail in its goal of ridding Australians of online
pornography, it is still a step in the wrong direction. The Internet
offers a
uniquely open forum which should be embraced and nurtured rather than strangled,
as the Online Services Act seeks to do.
[*] BSc (Melb), LLB (Hons)
(Melb), LLM (Harv), AmusA; Solicitor, Mallesons Stephen Jaques, Melbourne. I
submitted an earlier version
of this article as part of a Graduate Diploma in
International Law at the University of Melbourne. I would like to thank Gigi
Sohn,
Andrew Mitchell, the Journal’s Editors and the anonymous referees
for their helpful comments in the preparation of this article.
The views
expressed herein, and any errors, are
mine.[1] American
Civil Liberties Union v Janet Reno, Attorney General of the United States,
929 FSupp 824, 883 (Ed Penn, 1996) (Dalzell
J).[2] See generally
Joan Kennedy Taylor, ‘Gender Symposium: Does Sexual Speech Harm Women? The
Split Within Feminism’ (1994) 5 Stanford Law and Policy Review 49.
[3] See, eg, Nadine
Strossen, ‘Fighting Big Sister for Liberty and Equality’ (1993) 38
New York Law School Law Review 1; Nadine Strossen, ‘A Feminist
Critique of “The” Feminist Critique of Pornography’ (1993) 79
Virginia Law Review 1099; Nadine Strossen, Defending Pornography: Free
Speech, Sex, and the Fight for Women’s Rights (1995); Nadine Strossen,
‘Hate Speech and Pornography: Do We Have to Choose Between Freedom of
Speech and Equality?’
(1996) 46 Case Western Reserve Law Review
449. See also Gillian Rodgerson and Elizabeth Wilson (eds), Pornography and
Feminism: The Case Against Censorship
(1991).[4] See, eg,
Catharine MacKinnon, ‘Not a Moral Issue’ (1984) 2 Yale Law and
Policy Review 321; Andrea Dworkin, ‘Against the Male Flood:
Censorship, Pornography, and Equality’ (1985) 8 Harvard Women’s
Law Journal 1; Andrea Dworkin and Catharine MacKinnon, Pornography and
Civil Rights: A New Day for Women’s Equality (1988); Catharine
MacKinnon, Only Words
(1993).[5] See below
Parts VII (A) and
(B).[6] Edward Cleary,
Beyond the Burning Cross: The First Amendment and the Landmark RAV Case
(1994) 109.[7] [1973] USSC 190; 413 US
15, 24
(1973).[8] Roth v
United States, [1957] USSC 100; 354 US 476, 489
(1957).[9] Federal
Communications Commission v Pacifica Foundation, [1978] USSC 176; 438 US 726, 740
(1978).[10] Ibid
746.[11] Ibid
740.[12] Dworkin,
‘Against the Male Flood’, above n 4, 515,
520.[13] Catharine
MacKinnon, ‘Pornography, Civil Rights and Speech’ in Catherine Itzin
(ed), Pornography: Women, Violence and Civil Liberties (1992) 456, 464.
See below Part IV(D) for further discussion of MacKinnon’s notion of
pornography in and of itself subordinating
women.[14] Ibid
465.[15] Dworkin and
MacKinnon, above n 4, 138-42; Mary Heath, ‘Catharine MacKinnon:
Toward a Feminist Theory of the State?’
(1997) 9 Australian Feminist
Law Journal 55, 55-8; Andrew Jacobs, ‘Rhetoric and the Creation of
Rights: MacKinnon and the Civil Right to Freedom from Pornography’
(1994)
42 Kansas Law Review 785,
785-92.[16] See the
discussion in Strossen, Defending Pornography, above n 3, 75-7. See
below Part IV for further examination of the various harms arising from
pornography.
[17] American
Booksellers Association v Hudnut, 598 FSupp 1316 (D Ind, 1984); 771 F2d 323
(7th Cir, 1985); 475 US 1001
(1986).[18] MacKinnon,
above n 13,
465.[19] Ibid
466.[20] Strossen,
Defending Pornography, above n 3, 13,
16.[21] Ibid
53-5.[22] See
generally the language used in Strossen, Defending Pornography, above
n 3.[23] See,
eg, the criticisms of this term in Strossen, ‘A Feminist Critique’,
above n 3,
1103-4.[24] Opened
for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23
March
1976).[25] Manfred
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993)
365. [26] See Henry
Steiner and Philip Alston, International Human Rights in Context: Law,
Politics, Morals (1996)
767-71.[27] Opened
for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952).
See generally Anthony Strahan, ‘An Overview of the Protection of Freedom
of Expression under
Article 10 of the European Convention on Human Rights’
(Research Paper No 6, Centre for Media, Communications and Information
Technology Law, University of Melbourne,
1998).[28] T Emerson,
‘First Amendment Doctrine and the Burger Court’ (1980) 68
California Law Review 422,
423.[29] John Stuart
Mill, On Liberty (1972) ch 2; see also Kent Greenawalt, ‘Free
Speech Justifications’ (1989) 89 Columbia Law Review 119,
131-41.[30] Abrams
v United States, [1919] USSC 206; 250 US 616, 630 (1919) (Holmes J,
dissenting).[31] Adam
Newey, ‘Freedom of Expression: Censorship in Private Hands’ in
Liberty (ed), Liberating Cyberspace: Civil Liberties, Human Rights and the
Internet (1999) 13,
27.[32] C Edwin
Baker, Human Liberty and Freedom of Speech (1989)
7.[33] Wojciech
Sadurski, Freedom of Speech and Its Limits (1999)
8-10.[34] Alexander
Meiklejohn, ‘The First Amendment is an Absolute’ [1961] Supreme
Court Review 245; see also Richard Fallon Jr, ‘Post on Public
Discourse under the First Amendment’ (1990) 103 Harvard Law Review
1738.[35] Owen
Fiss, The Irony of Free Speech (1996)
2-3.[36] Sadurski,
above n 33, 22-7; Eric Barendt, Freedom of Speech (1985)
21.[37] Ronald
Dworkin, ‘Is there a Right to Pornography?’ (1981) 1 Oxford
Journal of Legal Studies 177,
177.[38] Sadurski,
above n 33,
17.[39] Ibid 19-20;
Barendt, above n 36,
18.[40] Dworkin,
above n 37,
185.[41] Margaret
Blanchard, ‘The American Urge to Censor: Freedom of Expression Versus the
Desire to Sanitize Society – From
Anthony Comstock to 2 Live Crew’
(1992) 33 William & Mary Law Review 741, 771,
774.[42] Ibid 803,
828-34.[43] See
generally Lee Bollinger, The Tolerant Society: Freedom of Speech and
Extremist Speech in America
(1986).[44] Sadurski,
above n 33, 33; see also Greenawalt, above n 29,
147.[45] Mill, above
n 29, ch 1; Beth Gaze and Melinda Jones, Law, Liberty and
Australian Democracy (1990)
382.[46] Greenawalt,
above n 29,
122.[47] Stella
Rozanski, ‘Obscenity: Common Law and the Abuse of Women’ [1991] AdelLawRw 9; (1991) 13
Adelaide Law Review 163, 177, 181; Gail Dines, Robert Jensen and Ann
Russo, Pornography: The Production and Consumption of Inequality (1998)
21-2; MacKinnon, above n 13,
462.[48] Barbara
Sullivan, The Politics of Sex: Prostitution and Pornography in Australia
Since 1945 (1997)
3.[49] Rozanski,
above n 47,
178-9.[50] Dines,
Jensen and Russo, above n 47,
23-8.[51] Anne
Orford, ‘Liberty, Equality, Pornography: The Bodies of Women and Human
Rights Discourse’ (1994) 3 Australian Feminist Law Journal 73, 91;
Rozanski, above n 47, 164, 193; Dines, Jensen and Russo, above n 47,
23; Susanne Kappeler, ‘Pornography: The Representation
of Power’ in
Catherine Itzin (ed), Pornography: Women, Violence and Civil Liberties
(1992) 88,
91.[52] Liz Kelly,
‘Pornography and Child Sexual Abuse’ in Catherine Itzin (ed),
Pornography: Women, Violence and Civil Liberties (1992) 113,
116.[53] Ibid 116-7;
Catherine Itzin, ‘Pornography and the Social Construction of Sexual
Inequality’ in Catherine Itzin (ed),
Pornography: Women, Violence and
Civil Liberties (1992) 57, 65.
[54] Kelly, above
n 52, 113, 115.
[55] For example, in
the video produced by The Education Resource Centre, Institute of Education,
University of Melbourne, Cutting Edge – Against Pornography: The
Feminism of Andrea Dworkin (30 June 1992), several horrifying accounts are
given, including of a snake being inserted into a baby’s anus and a young
girl
being raped by her father or
grandfather.[56] For
example, reports of a woman’s labia being nailed to a table: Catherine
Itzin, ‘Pornography and Civil Liberties: Freedom,
Harm and Human
Rights’ in Catherine Itzin (ed), Pornography: Women, Violence and Civil
Liberties (1992) 553,
569.[57] Jill Meyer,
‘In Search of a Right to Escape From a Pornographic Society’ (1996)
23 Northern Kentucky University Law Review 553,
568.[58] H L A Hart,
Law, Liberty and Morality (1963)
31-3. [59] Mill,
above n 29, ch 1; Gaze and Jones, above n 45,
382.[60] D F B
Tucker, Law, Liberalism and Free Speech (1985) 127-33; Hart, above
n 58,
47.[61] Kappeler,
above n 51,
91.[62] See below
Part VII(C).[63] See
Dines, Jensen and Russo, above n 47, 109-34; Deborah Cameron and Elizabeth
Frazer, ‘On the Question of Pornography and
Sexual Violence: Moving Beyond
Cause and Effect’ in Catherine Itzin (ed), Pornography: Women, Violence
and Civil Liberties (1992) 359, 361-7; MacKinnon, above n 13,
477-80.[64] Dworkin,
‘Against the Male Flood’, above n 4, 528; see also MacKinnon,
above n 13,
477.[65] Itzin, above
n 53,
67.[66] Ibid
68.[67] MacKinnon,
above n 13, 461-3, 473-8; MacKinnon, Only Words, above n 4,
118-20.[68] MacKinnon,
Only Words, above n 4,
95-7.[69] Rodgerson
and Wilson, above n 3, 36; see also Strossen, Defending Pornography,
above n 3,
113-14.[70] C Edwin
Baker, ‘Harm, Liberty, and Free Speech’ (1997) 70 Southern
California Law Review 979,
984.[71] Ibid
982.[72] Sadurski,
above n 33,
121-2.[73] See, eg,
MacKinnon, above n 13, 483-5; MacKinnon, Only Words, above n 4,
29.[74] Sadurski,
above n 33,
123.[75] Rae Langton,
‘Speech Acts and Unspeakable Acts’ in Tom Campbell and Wojciech
Sadurski (eds), Freedom of Communication (1994) 95,
110.[76] Sadurski,
above n 33,
123-32.[77] Catharine
Lumby, Bad Girls (1997) xxv; Strossen, ‘A Feminist Critique’,
above n 3,
1131.[78] Strossen,
‘Defending Pornography’, above n 3, 146; see also
Strossen, ‘A Feminist Critique’, above n 3,
1128-30.[79] Nancy
Friday, Women on Top (1991) 4-5, cited in Strossen, Defending
Pornography, above n 3,
173.[80] Jean
MacKellar, in collaboration with Menacham Amir, Rape: The Bait and the Trap:
A Balanced, Humane, Up to Date Analysis of Its Causes and Control (1975)
260, cited in Strossen, Defending Pornography, above n 3,
173.[81] Strossen,
Defending Pornography, above n 3, 172-3; Nancy Friday, Forbidden
Flowers (1994)
169-71.[82] See
General Assembly of the United Nations, Optional Protocol to the Convention
on the Rights of the Child on the sale of children, child prostitution and child
pornography; Optional Protocol to the Convention on the Rights of the
Child on the involvement of children in armed conflict, UN Doc
A/RES/54/263 (2000).
[83] Strossen,
Defending Pornography, above n 3, 179-88; Nadine Strossen,
‘Book Review: The Convergence of Feminist and Civil Liberties Principles
in the Pornography
Debate’ (1987) 62 New York University Law Review
201, 211-12; Strossen, ‘A Feminist Critique’, above n 3,
1137-9. Contra: Andrea Dworkin, Woman Hating (1984) 184; Catharine
MacKinnon, Toward a Feminist Theory of the State (1989) 113, 125; Andrea
Dworkin, Pornography: Men Possessing Women (1979)
23.[84] See, eg,
Strossen, Defending Pornography, above n 3, 41; Strossen,
‘Hate Speech’, above n 3,
454.[85] Cf Strossen,
‘A Feminist Critique’, above n 3,
1135.[86] Jeffrey
Goldsworthy, ‘The Constitutional Protection of Rights in Australia’
in Greg Craven (ed), Australian Federation: Towards the Second Century
(1992) 151, 171; Fiss, above n 35, 16; MacKinnon, above n 13, 471; cf
Alon Harel, ‘Bigotry, Pornography, and the First Amendment:
A Theory of
Unprotected Speech’ (1992) 65 Southern California Law Review 1887,
1902.[87] Sadurski,
above n 33, 99-101; MacKinnon, above n 13, 483-5; Dworkin,
‘Against the Male Flood’, above n 4, 515,
529.[88] MacKinnon,
above n 13,
471.[89] Ibid
483-5.[90] MacKinnon,
Only Words, above n 4, 9-10, see also
40-1.[91] Ibid
9.[92] Strossen,
Defending Pornography, above n 3, 192; Strossen, ‘Hate
Speech’, above n 3,
461-2.[93] Strossen,
Defending Pornography, above n 3, 180,
254.[94] Dworkin,
‘Against the Male Flood’, above n 4, 515,
533.[95] Strossen,
Defending Pornography, above n 3, 31-2, 62; Strossen, ‘Hate
Speech’, above n 3, 462-8; Strossen, ‘A Feminist
Critique’, above n
3, 1145; cf David Knoll, ‘Anti-Vilification
Laws: Some Recent Developments in the United States and their Implications for
Proposed Legislation in the Commonwealth of Australia’ [1994] AUJlHRights 14; (1994) 1
Australian Journal of Human Rights 211,
234.[96] Strossen,
Defending Pornography, above n 3, 11; Meyer, above n 57, 566;
Blanchard, above n 41,
766-7.[97] Strossen,
Defending Pornography, above n 3,
20-1.[98] Ibid
228-9.[99] Ibid
164-70.[100] Lawrence
Lessig, ‘Reading the Constitution in Cyberspace’ (1996) 45 Emory
Law Journal 869,
892.[101] Ibid
885-6.[102] Ibid
888-9.[103] Ibid
894.[104] Thomas
Krattenmaker and L A Powe Jr, ‘Converging First Amendment Principles for
Converging Communications Media’ (1995) 104 Yale Law Journal 1719,
1736; Adrianne Goldsmith, ‘Sex, Cyberspace, and the Communications Decency
Act: The Argument for an Uncensored Internet’
[1997] Utah Law
Review 843,
843.[105] David
Lindsay, ‘Censoring the Internet: the Australian Approach to Regulating
Internet Content’ (Research Paper No 9,
Centre for Media, Communications
and Information Technology Law, University of Melbourne, 1999)
34.[106] Lessig,
above n 100,
887.[107] Lindsay,
above n 105, 20,
22.[108] These
difficulties have not been resolved by the Online Services Act, see below
Part VII(C).
[109] Dominic
Andreano, ‘Cyberspace: How Decent is the Decency Act?’ (1996) 8
St Thomas Law Review 593, 597, 610; Newey, above n 31,
31.[110] Marty
Rimm, ‘Marketing Pornography on the Information Superhighway: A Survey of
917 410 Images, Descriptions, Short Stories
and Animations Downloaded 8.5
Million Times by Consumers in Over 2 000 Cities in Forty Countries, Provinces
and Territories’
(1995) 83 Georgetown Law Journal 1849; see the
discussion in Peter Johnson, ‘Pornography Drives Technology: Why Not to
Censor the Internet’ (1996) 49 Federal Communications Law Journal
217,
224-5.[111] See,
eg, Janet Reno, Attorney General of the United States v American Civil
Liberties Union, [1997] USSC 73; 521 US 844, 854, 867-9 (1997); Andreano, above n 109,
600-1; Angus Hamilton, ‘The Net Out of Control – A New Moral Panic:
Censorship
and Sexuality’ in Liberty (ed), Liberating Cyberspace: Civil
Liberties, Human Rights and the Internet (1999) 169, 170; Goldsmith, above
n 104, 846-7,
857.[112] See below
Part VI(A); Goldsmith, above n 104,
855-6.[113] [1978] USSC 176; 438 US
726, 740, 746 (1978). See also above Part
II.[114] [1989] USSC 139; 492 US 115
(1989). [115] Ibid
126.[116] United
States v Playboy Entertainment Group Inc, [2000] USSC 46; 529 US 803
(2000).[117] But
see Krattenmaker and Powe, above
n 104.[118] Action
for Children’s Television v Federal Communications Commission (No 3),
[1995] USCADC 259; 58 F3d 654 (DC Cir,
1995).[119] Pacifica[1978] USSC 176; ,
438 US 726, 748
(1978).[120] Ibid
748-9.[121] Ibid
748. [122] New
York v Ferber, [1982] USSC 169; 458 US 747 (1982); see also ibid
749.[123] [1978] USSC 176; 438 US
726, 719-30
(1978).[124] 47 USC
s 223
(1996).[125] Communications
Decency Act, s 223(a)(1)(B), 47 USC s 223
(1996).[126] Communications
Decency Act, s 223(d)(1), 47 USC s 223
(1996).[127] Communications
Decency Act, s 223(e)(5), 47 USC s 223
(1996).[128] [1997] USSC 73; 521 US
844
(1997).[129] Ibid
867,
868-9.[130] Ibid
854,
867-9.[131] Ibid
868-70.[132] See
Sable[1989] USSC 139; , 492 US 115, 126
(1989).[133] Reno
No 1[1997] USSC 73; , 521 US 844, 879
(1997).[134] See
Miller[1973] USSC 190; , 413 US 15, 24
(1973).[135] Reno
No 1 [1997] USSC 73; 521 US 844, 874
(1997).[136] Ibid
871.[137] Ibid 856,
881-2.[138] Ibid
856-7.[139] Miller[1973] USSC 190; ,
413 US 15, 24
(1973).[140] Anne
Branscomb, ‘Anonymity, Autonomy, and Accountability: Challenges to the
First Amendment in Cyberspace’ (1995) 104 Yale Law Journal 1639,
1654; see also Goldsmith, above n 104, 860.
[141] Reno No
1[1997] USSC 73; , 521 US 844, 877-8
(1997).[142] Ibid
878. [143] Lessig,
above n 100,
893-5.[144] 47 USC
s 231
(1998).[145] [1973] USSC 190; 413 US
15, 24
(1973).[146] Child
Online Protection Act, s 231(e)(6), 47 USC s 231
(1998).[147] Child
Online Protection Act, s 231(c), 47 USC s 231
(1998).[148] [2000] USCA3 123; 217
F3d 162 (3rd Cir,
2000).[149] Reno
No 2[2000] USCA3 123; , 217 F3d 162, 166 (3rd Cir,
2000).[150] See
Hilary Charlesworth, ‘The Australian Reluctance About Rights’ in
Philip Alston (ed), Towards an Australian Bill of Rights (1994) 21, 25;
see also Elizabeth Evatt AC, ‘Meeting Universal Human Rights Standards:
The Australian Experience’ (Paper
presented at the Department of the
Senate Occasional Lecture Series, Parliament House, Canberra, 22 May
1998).[151] Brian
Galligan, ‘Australia’s Political Culture and Institutional
Design’ in Philip Alston (ed), Towards an Australian Bill of Rights
(1994) 55, 63; Goldsworthy, above n 86,
158.[152] Peter
Bailey, Human Rights: Australia in an International Context (1990) 84-6.
The provisions listed are ss 8, 16, 24, 30, 31, 34, 41, 51(ii), 51(xxiiiA),
51(xxxi), 75, 80, 84, 88, 90, 92, 99, 100,
102, 104, 109, 113, 116, 117, 119,
128. [153] See
Goldsworthy, above n 86,
151-2.[154] Australian
Constitution
s 24.[155] Australian
Constitution
s 128.[156] On
the question of whether Australia should introduce a Bill of Rights see
generally Philip Alston (ed), Towards an Australian Bill of Rights
(1994); Enid Campbell and Harry Whitmore, Freedom in Australia
(2nd ed, 1973) 432-56; Frank Brennan, Legislating Liberty? A Bill
of Rights for Australia (1998); Goldsworthy, above n 86,
160-76.[157] Charlesworth,
above n 150,
28-33.[158] Constitutional
Alteration (Post-War Reconstruction and Democratic Rights) Bill 1944 (Cth); see
George Williams, Human Rights under the Australian Constitution (1999)
251-2.[159] Charlesworth,
above n 150, 22-3,
53.[160] Galligan,
above n 151, 59; see also Eugene Kamenka and Alice Erh-Soon Tay,
‘Introduction: Human Rights and the Australian Tradition’
in Alice
Erh-Soon Tay (ed), Teaching Human Rights (1981) 1,
3.[161] Strossen,
‘Hate Speech’, above n 3, 458-77; Strossen, Defending
Pornography, above n 3, 30-2; cf Fiss, above n 35, 12-13;
MacKinnon, Only Words, above n 4,
71.[162] Goldsworthy,
above n 86, 153; Hugh Collins, ‘Political Ideology in Australia: The
Distinctiveness of a Benthamite Society’
(1985) 114 Daedalus 147;
cf Galligan, above n 151,
61-2.[163] Cf Sir
Anthony Mason, ‘Future Directions in Australian Law’ [1987] MonashULawRw 6; (1987) 13
Monash University Law Review 149, 163; Goldsworthy, above n 86, 165;
Dworkin, above n 37,
202-5.[164] Attorney-General
v Guardian Newspapers (No 2) [1990] 1 AC 109, 283, cited in Lange v
Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, fn
62.[165] For
example, in one case a group of Indigenous Australians challenged the validity
of legislative restrictions on the use of certain
words related to the
Bicentenary. In its decision, the High Court made only passing reference to the
importance of free expression:
Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79,
100, 116.[166]
Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR
1.[167] Communist
Party Dissolution Act 1950 (Cth) s
4.[168] Communist
Party Dissolution Act 1950 (Cth) ss 9,
10.[169] Charlesworth,
above n 150,
26.[170] Orford,
above n 51,
75.[171] See above
Part III(A) for a discussion of art
19.[172] Chu
Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1,
74.[173] Minister
for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287; Ivan
Shearer, ‘The Relationship between International and Domestic Law’
in Brian Opeskin and Donald Rothwell (eds),
International Law and Australian
Federalism (1997) 34,
94.[174] Chu
Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1, 38; Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60,
69.[175] Opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Australia became a party on 25 December
1991.[176] See, eg,
Toonen v Australia (1994) 1(3) IHRR 97 and the Human Rights (Sexual
Conduct) Act 1994 (Cth) s 4, discussed in Hilary Charlesworth,
‘International Human Rights Law and Australian Federalism’ in Brian
Opeskin and Donald
Rothwell (eds), International Law and Australian
Federalism (1997) 280,
297.[177] See, eg,
Australian Capital Television Pty Ltd v Commonwealth (No 2) [1992] HCA 45; (1992)
177 CLR 106; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Mabo v
Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1; Lange v Australian Broadcasting
Corporation [1997] HCA 25; (1997) 189 CLR 520; Levy v State of Victoria [1997] HCA 31; (1997) 189
CLR 579; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR
1.[178] Nationwide
News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television v
Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106; Lange v Australian Broadcasting
Corporation [1997] HCA 25; (1997) 189 CLR 520
559.[179] McGinty
v Western Australia [1996] HCA 48; (1996) 186 CLR
140.[180] Nationwide
News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 48-9 (Brennan
J).[181] Lindsay,
above n 105,
36.[182] Stephens
v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211,
232.[183] Theophanous
v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 124 (Gaudron J). On the
impact of this case on defamation law see generally Sally Walker, ‘The
Impact of the High Court’s
Free Speech Cases on Defamation Law’
[1995] SydLawRw 3; (1995) 17 Sydney Law Review
43.[184] Nationwide
News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 53 (Brennan
J).[185] Australian
Capital Television v Commonwealth (No 2) [1992] HCA 45; (1992) 177 CLR 106, 132 (Mason
CJ).[186] Theophanous
v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104,
124.[187] Levy v
State of Victoria [1997] HCA 31; (1997) 189 CLR
579.[188] Williams,
above n 158,
168.[189] Lange
v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520,
560.[190] Sally
Walker, ‘Lange v ABC: the High Court rethinks the
“constitutionalisation” of defamation law’ (1998) 6 Torts
Law Journal 9,
14-15.[191] McGinty
v Western Australia [1996] HCA 48; (1996) 186 CLR
140.[192] Langer
v Commonwealth [1996] HCA 43; (1996) 186 CLR
302.[193] Lange
v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520,
567-8.[194] Lindsay,
above n 105,
58.[195] Broadcasting
Services Act 1992 (Cth) sch 5, s 22(5).
[196] Broadcasting
Services Act 1992 (Cth), sch 5,
s 82.[197] See
generally Classification (Publications, Films and Computer Games) Act
1995
(Cth).[198] Broadcasting
Services Act 1992 (Cth) sch 5,
ss 10-11.[199] Broadc
asting
Services Act 1992 (Cth) sch 5,
s 40.[200] Broadcasting
Services Act 1992 (Cth) sch 5,
ss 10-11.[201] See
Brendan Scott, ‘Silver Bullets and Golden Egged Geese: A Cold Look at
Internet Censorship’ [2000] UNSWLawJl 13; (2000) 23 University of New South Wales Law
Journal 215, 220; Peter Chen, ‘Pornography, Protection, Prevarication:
The Politics of Internet Censorship’ [2000] UNSWLawJl 14; (2000) 23 University of New South
Wales Law Journal 221,
221-3.[202] Scott,
above n 201,
218-20. [203] Chen,
above n 201,
222.[204] Ibid;
Lindsay, above n 105,
122.[205] Cited in
Lindsay, above n 105, 20.
[206] Ibid
119-22.[207] Chen,
above n 201,
226.[208] Lindsay,
above n 105,
123-49.[209] Ibid
150.[210] Ibid
121.[211] Ibid
69.[212] Ibid
71.[213] Ibid 49,
65; Chen, above n 201,
223-5.[214] Dworkin
and MacKinnon, above n 4,
83-4.[215] Strossen,
Defending Pornography, above n 3, 13, 82; Jacobs, above n 15,
801-2.
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