8 - Pornography, obscenity and art

Summary

8.1 In the course of Chapter 7, we have referred almost all our discussion to pornography, rather than to obscenity. This emphasis was deliberate. “Obscene”, we shall suggest in this chapter, is a term which itself expresses the kinds of reactions we were discussing in Chapter 7, rather than telling one what kind of thing actually arouses those reactions. “Pornography”, on the other hand, we take to be a rather more objective expression referring to a certain kind of writing, picture etc. We have suggested that pornography does tend by its nature to be found offensive; and most of the publications and pictures which people find offensive are indeed pornographic. But we shall need to consider a little more precisely what pornography and obscenity are, in order to discuss an important question, the relations of pornography and obscenity to art. There is more than one reason why we thought that we should discuss this question. It has repeatedly surfaced in the history of this subject; it has constantly recurred, not surprisingly, in our own discussions; and it has been raised in various forms by many witnesses, some of whom were as certain that there could not possibly be an obscene work of art as others were that there could. The issues here are, moreover, deeply involved in both the theory and the practical use of the “public good defence” under section 4 of the Obscene Publications Act 1959. The discussion in this chapter directly bears on our recommendations and has, we believe, important consequences for legislation on these subjects. We have not been convinced that it is impossible for any pornographic or obscene work to have artistic merit, and we shall try to explain why we have not. At the same time, we are convinced, for reasons that we shall give, that a public good defence with respect to artistic merit is inevitably unworkable. Any proposals for legislation must, we believe, accommodate both these conclusions.

Pornography

8.2 The term “pornography” always refers to a book, verse, painting, photograph, film, or some such thing—what in general may be called a representation. Even if it is associated with sex or cruelty, an object which is not a representation—exotic underwear, for example—cannot sensibly be said to be pornographic (though it could possibly be said to be obscene).