What is Pornography?

[I can't define what pornography is.] "But I know it when I see it."
Justice Stewart of the U.S. Supreme Court

Introduction
The literature on the moral, legal and social issues relating to pornography is extensive, but unfortunately a disproportionately small amount of effort has been expended on coming up with a satisfactory definition of the term. The quote at the top of this page seems to exemplify the frustration that many writers feel when they try to tackle the Herculean task of defining pornography. For there to be any real progress in our understanding of how to regulate pornography, it is imperative that there is a strong consensus about what is meant by the term. I will assess a number of rival definitions. In order to assess them in an adequate manner I will start off by clarifying what a satisfactory definition of the term needs to do, in addition to this I will also provide a paradigmatic set of examples of pornography and non-pornography.

Formulating a Good Definition
A good definition of pornography should largely concur with our intuitive understanding of what pornography is. However the possibility should be left open for it to reshape our intuitions and either exclude materials that were previously considered pornographic or include new materials as a part of what is deemed pornography. The definition should not be too broad and include objects that are clearly not pornographic, nor should it be too narrow and exclude objects that are clearly pornographic.

A vast array of materials have been described as pornographic throughout history. During the Victorian age images displaying a woman’s ankles were considered pornographic while those sorts of images are not considered pornographic today. It is not only the passage of time that has affected what is deemed pornography; different cultures often disagree about what pornography is. I don’t think it is only the case that some historical or cultural groups are mistaken about what pornography is, I would argue that a good definition should make allowance for the fact that different groups make differing judgments about whether particular objects are pornographic or not. I would argue that this can be achieved by acknowledging that the context that a particular image is placed in plays a role in deciding whether it is pornographic or not. This means that a good definition must be able to take social, historical and cultural contexts into account. For example a particular image of a woman’s exposed breasts may be considered pornographic if it is displayed in Playboy but not if it is displayed in a plastic surgeon’s portfolio.



People do not have homogenous sexual tastes, so the definition needs to able to factor in the diverse range of sexual preferences that people have. Not everyone is aroused by depictions of conventional heterosexual sex. For example shoe fetishists are sexually aroused by fondling shoes or viewing images of shoes.

There is a strong perception that art and pornography are mutually exclusive terms and that a piece of pornography by definition cannot have artistic merit. I dispute this on the basis that at least some of the materials that we ordinarily think of as pornography share features that we associate with works of art. The creator of a pornographic image can employ commonly recognized artistic techniques so that the image is composed and lit in a manner that is both aesthetically pleasing and sexually arousing. This means that a definition of pornography should make allowance for the fact that some works of art are also works of pornography.

The goal of the definition is to define the term pornography, but it must be emphasized that this is only a starting point. Pornography can be further categorized through the use of general descriptions as well as descriptions that refer to content. The terms soft-core, hardcore, violent, vulgar, empowering, degrading, educational and artistic would be a few general descriptions of pornography. The content could include reference to particular sexual acts as well as the sex, race, orientation and age of the parties performing in the pornography. A full description of a particular piece of pornography could be something like artistic interracial lesbian fist fucking granny porn.

Paradigms of Pornography and Non-Pornography
Pornography is material that is communicative by nature and it can take the form of a moving or still image, a written text or even an audio recording. The images found in the pages of Penthouse, Hustler are prime examples of what is generally considered to be pornography as are books like the Marquis de Sade’s The 120 Days of Sodom and movies like Deep Throat and Backdoor Sluts 9. However not all sexually explicit materials are pornographic. Representations of explicit sex acts can appear in documentaries, sex education booklets, medical diagrams, scientific journals and in works of visual or literary art in a non-pornographic way. It is of vital importance that a definition of pornography is able to distinguish between these two categories.




Rival Definitions of Pornography
Having established what a good definition of pornography ought to do, I will now proceed to examine a number of rivaling definitions of the term.

Sex and Profit
On one view pornography is “Any object mass produced and distributed with the purpose of marketing it for a profit by appealing to our sexual interests”

This definition fails on the basis that it produces results that are grossly counterintuitive. Firstly, it deems non-pornographic objects like sex toys, flavored condoms and lingerie as examples of pornography. Secondly a vast number of images that are generally considered pornographic are freely available on the internet. The definition would also imply that if a particular sexually explicit image was being sold on a website it would count as pornography but the same image would not count if it were being offered for free on another site.



Obscenity
On a second view material is pornographic if “(a) to the average person (b) the dominant theme of the material as a whole appeals to the prurient interest in sex; (c) the material [is] patently offensive because it [offends] contemporary community standards, relating to the description or representation of such matters...”

It must be noted that obscenity definitions can be understood as either descriptive or normative. In the first case it refers to what the average person is actually offended by and in the second, what the average person ought to be offended by.

Using a descriptive account would require one to conduct a survey that could determine which sexually explicit materials were considered to be offensive by the average person. The problem with this approach is that materials that relate to sex or have sexual content but are not ordinarily considered pornographic may be found to be offensive and be deemed pornographic by the definition. An example of this may be an advert for sex toys or images of the statue of David. Furthermore in societies where people are highly tolerant, magazines like Hustler and Penthouse would not be found to be offensive and by definition could not be considered pornographic. This would mean that pornography could be eradicated from a society by increasing tolerance towards sexually explicitly materials or by removing people that are offended by such material from the society.

The problem with the normative definition is that it lacks the necessary information to determine if a sexually explicit image is in fact pornographic. For example if a person were to view a sexually explicit image and not be offended by it, it would not be clear if the image was non-pornographic or if the viewer of the image was not decent or not easily offended. On the other hand if the image does offend it may be the case that the image is non-pornographic and the viewer is a prude. Some separate set of criteria would be required to determine what one ought to be offended by, but if this could be determined then that set of criteria would tell us what pornography is, not the obscenity definition, which means that the obscenity definition is either uninformative or superfluous.

Subordination
Dworkin and Mackinnon define pornography as “the sexually explicit subordination of women through pictures and or words.”

The claim can be interpreted in two ways. Firstly, that the image or text makes a general claim that women are inferior. Secondly, that the particular woman in the image or text is being subordinated. In the first case it is far from clear that any sort of general claim is being made by particular articles of pornography. A novel can depict a specific woman in a particular light but the characteristics ascribed to her apply to her only, not all women. For example in Hamlet Shakespeare represents the character of Ophelia as submissive and emotionally unstable, but this does not mean that all women are represented as sharing her qualities. In the second case it is also not clear that the actual woman in the image is being subordinated. I would argue that in many cases the woman is adopting the role of a sexual subordinate. For example, in the film Bitter Moon, Emmanuelle Seigner plays the role of Mimi, who is at times a sexually subordinate character. It would be absurd to conclude that Emmanuelle was actually sexually subordinate just because the character that she played was. Furthermore images of a woman actually being subordinated would often be better described as documentary images not pornography, as in the case of photographs of actual rape.

In order to further explain what is meant by their definition they provide a list of cases that they believe constitute pornography.

(i) Women are presented dehumanized as sexual objects, things, or commodities.
(ii) Women are presented as sexual objects who enjoy pain or humiliation.
(iii) Women are presented as sexual objects who experience sexual pleasure in being raped.
(iv) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt.
(v) Women are presented in postures or positions of sexual submission, servility, or display.
(vi) Women’s parts- including but not limited to vaginas, breasts or buttocks- are exhibited such that women are reduced to those parts.
(vii) Women are presented as whores by nature.
(viii) Women are presented as being penetrated by objects or animals.
(ix) Women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.
The following clause was included in an earlier document: We also provide that the use of men, children, or transsexuals in the place of women is pornography.

Along with the types of sexually explicit magazines and videos that one would find in adult bookstores the definition adds other items to the list. Section (v) would include many of the images that we are used to seeing in adverts and magazines, of women displayed in a sexual way to sell a product or model clothing. Section (vi) would include works of art that only display a part of women’s body. Rene Magritte’s Le Viol would be a prime example since it depicts a women’s face made up of a set of breasts and a vagina. Numerous works of literature, including the Bible would be considered pornography by a few of the clauses. Section (ix) would include testimonies describing the sexual abuse of women and documentaries depicting harms caused by sexual violence.


With this in mind the producers and distributors of pornography would not only include the people that produce and sell copies of Hustler and other X rated material. Prominent writers, artists, filmmakers, mainstream cinemas and bookstores, art galleries and even museums would be included on the list. For these reasons the definition is unacceptably broad. However certain radical feminists might embrace the fact the definition is so broad because they aim to use the definition as basis for deciding what material ought to be censored or suppressed and they would prefer to censor a broader category of materials. If this move is made then it must be conceded that the definition of pornography that they provide is not a conventional one but rather a stipulative one.

Intention and Effect
Pornography could be defined as material that is intended to cause sexual arousal. The problem with this account is that an inept pornographer could take photos of people dressed in oversized and unflattering gym clothes with the intention of causing arousal without it actually doing so. A further objection is that people that create works of non-pornography have a vast range of intentions about their work, one of which may be a weak intention to cause the viewers of their work to become sexually aroused. The definition would have the implication of classifying a lot of what we do not ordinarily consider pornography as pornography.

Pornography could rather be understood as material that actually causes sexual arousal. Given the enormous range of sexual desires that people have this definition would make it possible for almost any form of expression to be considered pornographic. For example an ordontophiliac is aroused by the extraction of teeth and would presumably be aroused by photos of people having their teeth taken out. A capnologniac is aroused by watching someone smoke so the definition would have to include cigarette commercials as pornographic. Rea points out another shortcoming of the definition. Imagine that the latest issue of Hustler is being printed; it is then sent to the newsstands and read by someone until it causes that person to become aroused. On the definition the magazine can only be considered pornography at the moment that it causes the reader to become aroused, which seems grossly counterintuitive. Furthermore both of these definitions would consider a drug like Viagra pornography since Viagra is intended to cause arousal and it does actually result in such arousal.

While it is clear that the above definitions in this section generate counterintuitive results, I think that a modified definition can be produced that avoids their weakness. The definition takes the following form: Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal.

This definition avoids the problems associated with the case of the inept pornographer, since it is not reasonable to expect the target audience to become aroused. It also manages to avoid deeming all forms of expression as examples of pornography, while managing to take a wide variety of sexual preferences into account when determining what counts as pornography. For example a magazine created for dental fetishists that succeeded in arousing people with that particular predilection would count as pornography. If this sounds counterintuitive imagine the cover of a magazine with an image of a woman at the dentist with the following caption: “Watch this dirty whore get her mouth drilled for your viewing pleasure.” With this in mind it is plausible to view this type of magazine as pornographic.

The definition can also explain why the context of a text or image can change it status as a piece of pornography. The image of the woman’s ankles was actually pornography in the Victorian age because it was intended to cause arousal and it succeeded in its goal. In a modern context it is not pornography because it is not reasonable to expect the image to achieve the goal of causing arousal.

The definition also manages to avoid the problem of hustler only becoming pornography once it causes someone to become aroused since the moment that it is produced there is a reasonable expectation that it will cause its target audience to become aroused.

Finally it has the benefit of providing a value neutral account of what pornography is. Unless one is inclined to think that there is something inherently good or bad about being sexually aroused, there does not appear to be anything intrinsically good or bad about pornography. For the purposes of regulation it becomes much easier to target specific types of pornography by drawing on the list of general and specific descriptions of pornography that I provided earlier. Using the descriptive categories makes it easy to avoid regulating pornography that is morally neutral or praiseworthy.

The Sanctity of Marriage Objection
Rea argues that sexually explicit images produced by married couples of each other ought not to be considered pornography because of the intimate bond between the parties and because the material is only intended for private viewing. He goes so far as to claim that in cases where materials become unintentionally available to the public, they would not count as pornography. However these types of images are intended to sexually arouse the couple that make and view the material and they do actually cause such arousal. This means that if Rea’s objection holds then the proposed definition fails on the basis that it includes non-pornography in its account of what pornography is.

I would argue that the sanctity of the marriage should not prevent the images from being considered pornography. There are two examples which substantiate this point. Firstly, some sexually explicit images that are commercially available and advertised as pornography are made by amateur couples, who are intimately involved or married to each other. These images seem like clear cases of pornography. Secondly, one of the best known examples of a pornographic film was made by Pamela Anderson and her then husband Tommy Lee on their honeymoon. The footage was intended to be for their private consumption but it was stolen and made publicly available over the internet. I would argue that placing the footage in the public sphere was not the reason for the video being considered pornography; if it had stayed in the private possession of the married couple it still would have been pornographic. Neither the sanctity of a marriage nor the small range of people that the material is intended to be viewed by should affect that object’s status as a piece of pornography.

The Profit Machine Objection
Rea mounts a further attack against the definition through the use of a thought experiment. He asks us to imagine that a computer programmer has developed a program that will produce products that are guaranteed to be profitable. In order for the program to operate it requires a detailed list of information about the group of people that the product is intended to be sold to. The programmer enlists a team of anthropologists to gather data. The team is deployed on an island in the Pacific Ocean and they set to work observing the islanders and gathering all of the necessary data. The data is then fed into the computer program. The program processes the data and produces a product that is very similar to Hustler magazine. All of the images in the magazine are generated by the computer but they are indistinguishable from actual photographs. The magazine is sold on the island for a profit and it is treated in the same way that we treat pornography. The computer programmer never finds out what product is being sold and he is satisfied with taking his share of the profits. Rea argues that none of the parties involved intend to produce materials that will cause the consumers of those materials to become sexually aroused. The computer programmer only intends to make a profit, the anthropologists only intend to gather information and the computer has no intention at all since it does not have the capacity to have an intention. Rea argues that the magazine being sold on the island is an article of pornography and the fact the definition can not take this into account shows that it is an unsatisfactory definition.

In order to dispute his claim I offer an extended version of his thought experiment. In this version in addition to the computer generating a magazine that resembles Hustler, it also creates set of objects that resemble sculptures of people dancing and another set of objects that resemble sculptures of people engaged in sexual activity. After all of the products are sold on the island, a volcanic eruption occurs. No one is harmed but by an amazing coincidence the lava from the eruption sets and forms a set of objects that resemble sculptures of people dancing and having sex. The village sculptor on the island is dismayed since he has just finished creating a set of sculptures of people dancing and having sex, he is worried that all of the objects that have recently been introduced to the island will affect his business. All of the objects that look like people dancing are treated by the islanders as works of art and all of the objects that look like people having sex are treated as works of pornography. The objects created by the volcano were not created with any intention; they are natural phenomena that resemble works of art and works of pornography. I would argue that these objects ought not to be considered actual works of art or actual works of pornography despite the fact they are treated in that manner by the islanders. First of all, nature is full of objects that resemble works of art but it would be strange to consider them actual works of art, this principle also extends to works of pornography. Second of all, treating an object in a particular way does not mean that the objects loses its identity and becomes the object that it is being treated like. For example if one were to treat a dog like a pony by equipping it with a saddle, feeding it carrots and riding it around a race track, it would remain a dog and not be a pony.

To my mind the natural process that the objects produced by the volcano go through is directly analogous to the process that the objects churned out by the computer go through. In both cases there is no intention to produce either works of art or works of pornography. In both cases the objects that are produced resemble works of art and works of pornography. On the basis that the two processes are analogous, and the fact that it would be counter intuitive to consider the objects produced by the volcano as works of art or pornography, I think the objects produced by the computer should not be considered art or pornography. However the sculptures produced by the island sculptor would qualify as both works of art and pornography. This means that the definition that I have offered can be rescued from Rea’s objection.

Conclusion
I have provided an account of what a good definition of pornography should be, as well as providing examples of pornography and non-pornography. I have used this to assess all of the rival definitions of the term that have been discussed. I have argued that the definition: “Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal” meets the requirements of a good definition and it manages to survive the objections made by Rea. I have also demonstrated the merits of using a value neutral definition and explained how specific forms of pornography can be targeted for regulation through the use of general and content specific descriptions.

Is Affirmative Action Unjust?

I look forward confidently to the day when all who work for a living will be one with no thought to their separateness as Negroes, Jews, Italians or any other distinctions. This will be the day when we bring into full realization the American dream -- a dream yet unfulfilled. A dream of equality of opportunity, of privilege and property widely distributed; a dream of a land where men will not take necessities from the many to give luxuries to the few; a dream of a land where men will not argue that the color of a man's skin determines the content of his character; a dream of a nation where all our gifts and resources are held not for ourselves alone, but as instruments of service for the rest of humanity; the dream of a country where every man will respect the dignity and worth of the human personality.

¬- Martin Luther King, Jr.

Every philosophical inquiry must begin with a clear account of the key concepts that are to be discussed during the course of that inquiry. In order to set the parameters of this paper I will begin by defining the terms justice and affirmative action. I will then proceed to examine two contrasting accounts of affirmative action and assess whether either version is unjust. I will engage in a separate enquiry to determine whether affirmative action yields positive consequences. My focus will be narrowed by limiting my discussion to affirmative action in the context of academic appointments in South Africa. Some of the conclusions that I draw will be applicable to affirmative action in other contexts, but this will not necessarily be the case for all of my conclusions.

The concept of justice is firmly tied to the principle of treating individuals in a manner that is in accordance with what they deserve. For example individuals that work hard deserve to be rewarded for their efforts, while those that perform wrongdoings deserve to be punished. In addition to taking the notion of desert into account, a proper understanding of justice must also be rooted in the value of equality. Enlightenment philosophers, like Kant and Hobbes, were committed to the position that people are endowed with equal rights. Paying due regard to equality does not require one to treat all people in exactly the same way. It requires us to treat like cases in the same way, but it also requires us to take the different needs and abilities of people into account when deciding how to treat them equally.

This means that differential treatment must be based on morally relevant considerations. Take a case where there are two candidates eligible to receive an award for being good citizens. The first candidate gives to charity, takes care of the elderly and feeds the homeless. The second candidate vandalizes public property, cheats on his tax returns and beats up his wife. The virtuous behavior of the first candidate constitutes a morally relevant for treating him differently to the second candidate and giving him the award.

Sexism is wrong because it involves arbitrary discrimination on the morally irrelevant basis of sex. Similarly treating people unequally because of their language, religion, race or sexual orientation is unjust because none of those features are morally relevant reasons for differential treatment.

Justice demands doing the right thing, but this will not always result in the best possible consequence being produced. A utilitarian account of justice collapses the distinction between the right and the good, since the right action is the one that produces the best results. On this account justice is served by maximizing good consequences, which is essentially forward looking. The account of justice that I will use in this paper will be primarily concerned with backward looking considerations and present considerations.

Affirmative action (AA) policies tend to be concerned with the goals of compensation, correction and diversification. Compensation is a backward looking concern that strives to remedy the injustices of the past. Correction is concerned with eliminating policies that are presently discriminatory. Diversification aims to produce a society that is multicultural. This aim is different from the first two, since it aims at producing a state of affairs that is thought to be good. It is therefore not related to concerns about justice, but rather about positive consequences. AA policies aim to achieve the aforementioned goals by either being race neutral or by placing some weight on the basis of race.

AA policies that give some preferential weight on the basis of race take three major forms. Firstly, tie breaker AA operates in situations where two candidates that are equally qualified are up for the same position, but the person of the preferred race is chosen over the other one. Secondly, strong-preference AA accords significance to candidates of a preferred race by choosing them over candidates of other races even if they are less qualified for the position. The stronger the preference for the particular race the less qualified the candidate needs to be to in order to be hired. Thirdly, set asides work by designating certain positions for candidates of a particular race, while disallowing candidates of other races to obtain the position. Set aside policies were commonly used during apartheid since many positions of power in business and government were set aside for “whites”.

Race preference AA policies aim to redress the injustices of the past. “Black” South Africans were heavily discriminated against by the state on the arbitrary basis of race. They were forced to endure untold humiliations and many were deprived of the opportunity to receive adequate education or work in careers of their choosing. It is of the utmost importance that the wrongs of the past are corrected and that as far as possible those individuals that were harmed are compensated. It is argued that by using race as a proxy for disadvantage, the injustices of the past can be remedied by giving preferential treatment to “blacks”.

This is troubling for a number of reasons. Firstly, in the case of academic appointments race is not a good proxy for disadvantage. In order to become an academic one must first have met certain educational requirements, like the possession of a doctorate. This means that the vast majority of “blacks” that were denied an education because of the racist policies of the past, are not eligible to become academics. Those “blacks” that were able to obtain doctorate degrees, were by definition not deprived of an education. They may have had more obstacles to overcome in order to obtain their degrees, but discrimination did not prevent them from obtaining them. These individuals may have suffered humiliating forms of discrimination, like not being allowed to visit whites only beaches, but they were not discriminated against in a manner that is relevant to being appointed as an academic. We do not think that the way to compensate other victims of humiliation like those that have been raped or defamed is to give them preferential treatment in the workplace; there are other forms of compensation that better suit the harms that they suffered. The result of the policy would be to confer a benefit on a candidate that did not deserve to be compensated in the form of preferential hiring. Since justice demands treating people as they deserve to be treated, the policy is unjust in this respect.

Secondly the policy fails to compensate those that have suffered an injustice but are not part of the preferred racial group. All people that have been unfairly disadvantaged in the same way by being deprived or persecuted are equally deserving of compensation, regardless of the colour of their skin. If only a portion of those that were disadvantaged are given compensation because of their skin colour then those that were not given compensation could rightly claim that they have been treated unfairly. It may be the case that the majority of those that were disadvantaged fall into a particular racial category, but this not a good reason for ignoring the claims of the minority.

Thirdly, those “white” candidates that deserve to be hired by universities but are prevented from being hired because of the race preference policy are being unjustly discriminated against. Their equal right to employment is set aside on the arbitrary ground of race. Since there are a finite number of positions available in a university, there is a direct connection between hiring candidates because they are of a preferred race and depriving “white” candidates of work because of their race. It would be inappropriate to claim that “whites” were receiving some form of just punishment for wrongs they committed in the past. Many of them played no role in the perpetuation of Apartheid and some of them actively fought against the racist policies of the past.

Despite the fact that AA based on racial preference is unjust, it may be argued that it ought to be made use of because it yields good consequences. One of the major claims in favour of the policy is that it creates diversity which is either intrinsically good or good because of the results that it produces.

A racially diverse range of staff may be aesthetically appealing, but once it is acknowledged that the colour of a person’s skin is as irrelevant as their height or hair colour, it becomes evident that there is nothing intrinsically valuable about it. It may be argued that racial diversity is valuable because it leads to a diversity of opinions.

Providing room for a diversity of beliefs and opinions brings with it immense benefits. It allows for intellectual, cultural, artistic and scientific progress whilst provoking discussion and aiding the search for truth. Since we are not infallible we cannot know with certainty that a particular opinion is false. When we suppress opinions that are believed to be false we risk missing out on the truth. By stifling beliefs that are different from our own we lose the opportunity to “challenge, reconsider and perhaps reaffirm” our own views.

When people are exposed to a range of conflicting opinions on a subject they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own view on the matter. Engaging in this process is fulfilling because it is an exercise in autonomous opinion formation. Furthermore it helps people make informed and legitimate decisions about both their political and private lives.

However it is far from clear that hiring staff that are racially diverse will ensure that those staff members hold a diversity of opinions. The assumption that all black people think in a particular way and that the opinions that they hold are fundamentally different to the opinions held by members of other racial groups is an absurd form of racial stereotyping. First of all it is possible for people from different racial groups to hold the same opinion on a matter. It is also possible for members of the same racial group to hold radically different views. The old adage that if you put two Jews in room you get three opinions illustrates the point that there is no connection between a person’s race and what they believe.

If universities genuinely wanted diversity of opinion then they would hire people on that basis. It is easy enough to determine a candidates views on a subject by examining the articles that they have written. Instead of focusing on race, universities would ensure that they hire enough Marxists, Libertarians, Feminists, Anarchists, Conservatives, Africanist’s, and Religious Fundamentalists to meet the requirements of diversity of opinion.

A further argument in favour of racial preference AA is the claim that members of companies and institutions ought to proportionally represent the racial composition of the rest of the population. This means that if 80% of the country is made up of those that have been designated as Black, then the same percentage of Blacks should be working in Universities. It is claimed that justice requires proportional representation on the basis of race and that an under representation of a particular race is evidence of injustice. The implication is that in a just world there would be a racially proportionate distribution in all sectors, including university lecturers. Proportional representation would require a readjustment of the current racial mix of lecturers working in universities.

However there is evidence to suggest that racial clustering in certain sectors is not necessarily connected to injustice. Industries are often dominated by particular racial groups because of particular preferences in those groups or through accidents of history. In California ninety percent of the donut stores are owned by Cambodians, yet the number of Cambodians living in California is significantly lower than ninety percent. Cambodians did not come to dominate the donut selling business because of discrimination against other racial groups and there is nothing unjust about them having a disproportionate share in the industry. If racial quotas were used then almost all of the Cambodians running donut stores would be forced to sell their businesses to members of other racial groups. This type of wholesale dispossession on the grounds of race smacks of the worst kind of racist social engineering.

Not only does race based AA fail to produce the good results that it promises, it produces results that harm the people that it aims to benefit. The policy undermines the achievements of those that belong to the racial group that the policy prefers. “It imposes upon every member of the preferred (race) the demeaning burden of presumed inferiority. Preferences create that burden; it makes a stigma of the race of those who are preferred by race. An ethnic group given special favor by the community is marked as needing special favor – and the mark is borne prominently by every one of its members. Nasty racial stereotypes are reinforced, and the malicious imputation of inferiority is inescapable because it is tied to the color of skin.”

Blacks that are appointed to work at universities because they are the best qualified for the job, are still forced to carry the stigma that were only chosen to fulfill a quota. Instead of being recognized for their genuine talents and abilities, they are viewed suspiciously by their collogues, who are lead to believe that they were only appointed because they are black. The following quote testifies to the anguish that many highly qualified blacks feel as a result of racial preference.

“You always want to believe that you were hired because you were the best… But everything around you is telling you you were brought in for one reason: because you were a quota…No matter how hard I worked or how brilliant I was, it wasn’t getting me anywhere. It’s a hell of a stigma to overcome.”

In the realm of education, the policy acts as a disincentive for preferred candidates to do their best. The more that they are rewarded in the workplace for their race as opposed to their merits, the less reason they are given to develop their talents and strive for excellence when they are studying. This has a knock on effect in university teaching. When less qualified candidates are hired to teach because of their race, students are placed at a disadvantage because they are deprived of the opportunity to be taught by those that are best qualified to teach. The quality of their educational experience and their capacity to achieve the best possible results are both undermined.

The preceding arguments should not be misinterpreted to imply that members of particular racial groups are inherently less qualified then members of other racial groups. Such a claim is racist and obviously false. The claim is simply that the more emphasis that a preference policy places on race, the less weight it places on merit. The same would apply if preference was placed on some other feature like height or hair colour.

In order to adopt a policy that takes account of race some form of racial classification must be used in order to determine who counts as “black” or “white”. Every person would have to be identified as being part of a particular racial group. Such a system would be undesirable since it would reinstitute the humiliating classificatory processes that were used in Nazi Germany and Apartheid South Africa. The classifications would often be arbitrary since people of mixed racial descent cannot be easily classified.

Race preference requires us to ask a series of repulsive questions. In order to determine how benefits are to be allocated it must be decided how much “blood” from a particular race is required to be considered a part of that race. Is one black parent, grandparent or great grandparent enough to be considered black? Would the same test be used to determine who is white? A clear line would have to be draw between those that would benefit from the preference and those that would not. But on what basis would such a line be drawn? In Nazi Germany a person’s status as a Jew was determined by how much Jewish blood they had. Having one Jewish grandparent was enough to be sent off to a concentration camp. In South Africa would having one black grandparent be enough to secure a favorable position in a university?

Who gets to decide what racial group people belong to? If people were given the power to assign themselves to a race of their choosing the results would be inconsistent. Preferential policies would incentivise people to categorize themselves as being members of the preferred racial group. Given that the stakes will be high for people to prove that they belong to a preferred group, their will a lot of contestation among those that fall into ambiguous racial categories. The system would require administrators to engage in the same kinds of disgusting classification tests that were used in the past. “Race preference does this terrible thing to our community and ourselves; it compels us to do what the Nazis urged- to ‘think with our blood’.”

Race preference is at odds with the aim of non-racialism, since racial identity would be deemed as important under this regime as it was under the apartheid regime. Instead of seeing each other as fellow human beings, people would be inclined to think of each other in terms of race. This would hinder the noble goal of racial integration and encourage people to separate themselves into racial groups. Instead of creating a pluralist society where everyone can feel proud of their heritage, racial preference makes some citizens feel less worthy. It deprives those that are not given preference of an equal opportunity on the basis of the race that they were born into. “Preference by race yields disharmony, distrust and disintergration.”

I have argued that race preference AA is unjust and leads to harmful results. It confers benefits on undeserving candidates, disadvantages candidates that are undeserving of being disadvantaged and perpetuates the humiliation of racial profiling. I will proceed to provide an alternative AA policy that avoids the problems associated with racial preference.

Equal opportunity AA is race neutral, but it is concerned with eliminating discrimination on the basis of race. “(It) involves taking positive steps to avoid discrimination, to ensure that opportunities are open and available to all and that fair standards of selection are used.” In order to overcome a past wrought with racism and exclusion, the policy seeks to include members of all races. The policy endorses reaching out to marginalized groups and encouraging them to enter into professions that they were previously not a part of.

Equal opportunity AA may require enormous effort on the part of employers. All of the insidious forms of discrimination must be rooted out of the hiring process and the workplace. For example if a university only advertises for lecturing positions in newspapers, which are predominantly read by “white” English speakers, then it can reasonably be claimed that it is discriminating against people of other races and languages.

The notion of what constitutes the best candidate must also be overhauled to eliminate bias against people with different racial and cultural backgrounds. In addition to academic ability, qualities like the ability to overcome disadvantageous obstacles should be taken into account. This means that if two candidates both achieved the same qualifications at similar institutions but the first did so while aided by privileged surroundings while the second did so despite the presence of discrimination and lack of opportunity, the second ought to be preferred on the basis of merit since she has the added ability of determination in the face of impediment. For example at the University of Berkley California results that were achieved in impoverished high schools, which were afflicted with drugs, gangs and crime are given greater consideration for admission, than results achieved at middle class schools.

An employer would also bear the responsibility of creating a working environment that respected the specific needs of staff members that arose because of their culture, race or ability. Such a policy may require allowing religious members of staff to wear traditional dress on particular occasions, prohibiting the use of racial slurs in the workplace and addressing the mobility requirements of the disabled by building wheelchair ramps.

Equal opportunity AA meets the demands of justice by treating people as moral equals, who are all deserving of the opportunity to work in environments that afford them respect and do not undermine their dignity. It corrects the unjust practice of discrimination in the hiring process and the workplace. It must be concluded that this form of AA is not unjust.

Is the Prohibition on Virtual Child Pornography an Unjustifiable Limitation of the Constitutional Right to Freedom of Expression?

This article originally appeared in the 2007 edition of the Responsa Meridiana law journal. The original version is fully referenced.

Introduction
The Films and Publications Act prohibits two types of child pornography. The first type Real Child Pornography, involves actual children. This is the type of pornography that evokes a strong and near universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation; the distribution of the material is a further harm against their dignity and privacy. During the course of this paper I will discuss why the state is justified in instituting criminal sanctions for the production, distribution and possession of this type of child pornography.

The legislation also takes aim at another form of child pornography. This type does not involve real children. This Virtual Child Pornography is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of children involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct. Digitally created images that resemble actual child pornography, but which do not make use of real children are also prohibited.

In this paper I highlight the key difference between Real and Virtual Child Pornography. After showing why the state is justified in prohibiting Real Child Pornography I will argue that those reasons do not provide a basis for the state to institute criminal sanctions against those that produce, distribute and possess Virtual Child Pornography. I will explain why the current prohibition on Virtual Child Pornography infringes the right to freedom of expression and argue that the infringement cannot be justified by the limitations clause.


Real Child Pornography
The state has a duty to uphold the right to freedom of expression, but it must also place appropriate restrictions on this right in certain circumstances. Real Child Pornography serves as a record of a particularly severe rights violation. The producers of child pornography actively participate in the sexual exploitation of minors. Younger children lack the capacity to fully appreciate the magnitude of what they are involved in, and cannot be considered consenting parties to sexual conduct. Real Child Pornography lasts as a haunting memory of abuse and a continual source of harm to the children that were involved in its production. The distributors of this material play a lesser but significant role in the perpetuation of this form of child abuse. They stimulate a market for Real Child Pornography and encourage its creation. By encouraging a greater demand amongst consumers they incentivise pornographers to increase the supply of materials. Consumers are not without blame in this process, since they provide the capital incentive for people to continue to produce and distribute Real Child Pornography. I would argue that there is a sufficient connection between the production, distribution and possession of Real Child Pornography and the abuse of real children to warrant the criminal sanctions against Real Child Pornography that are currently in place. This is a clear case where freedom of expression can be limited to prevent significant harm to children.

However the law ought to recognize that producers, distributors and possessors are not deserving of equal punishment. A possessor is not as intimately linked to the abuse of a child as the person that actually molests a child and films that molestation. I would suggest that a blanket punishment for the three categories of offenders is inappropriate since it fails to distinguish between the levels of harm caused by the offenders.

Virtual Child Pornography
Virtual Child Pornography does “not involve, let alone harm, any children in the production process.” “The statute proscribes the visual depiction of an idea - that of teenagers engaging in sexual activity - that is a fact of modern society and has been a theme in art and literature throughout the ages.” The law specifically states that artistic films and publications are not exempted from prohibition if they constitute virtual child pornography. In order to illustrate the severity and extent of the prohibition I will endeavor to provide a short list of materials that would incur criminal sanction under the act. Paintings by the prominent and well respected artists Gustav Klimt and Egon Shiele. Numerous sculptures and sketches produced during the renaissance period. The most famous love story ever written, Romeo and Juliet, involves a relationship between two teenagers, one of whom is only 13 years old. Several adaptations of the play have been produced for film and some of them show the lovers involved in sexual conduct. The recent Oscar winning films Traffic and American Beauty both feature scenes depicting woman under the age of 18 involved in sexual conduct. All of these valuable and beautiful works of art are examples of child pornography as defined by the Act.

The examples that I have used provide a basis for the conclusion that virtual child pornography is drastically different from real child pornography and ought not to be regulated in the same manner.


Limiting the Right to Freedom of Expression
The Constitution guarantees the right to freedom of expression and our courts have recognized sexually explicit material as a form of expression that is covered by the right. Therefore the prohibition of Virtual Child Pornography constitutes an infringement of this right, since the material is not an instance of material excluded by S 16(2) of the constitution. It must now be decided whether the infringement of the right can be justified with reference to the limitation clause in S 36.


The clause states the following:
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

In order to comply with the demands of the limitations clause the state must ensure that any limitation it makes on a right “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” Denise Meyerson argues that this prohibits the state from making use of arguments based on a particular conception of the good. Conceptions of the good encompass a range of views about what makes life valuable or meaningful. Religious beliefs are an example of a particular conception of the good. For example a Christian may understand a good life as a life devoted to the worship of Jesus Christ, while a Buddhist may believe that life is most meaningful when it aims at escaping the cycle of reincarnation. Given that our understanding of the world is limited it is not possible for anyone to proof that their particular religious views are true. Therefore it would be unfitting for the state to rely on contested religious views as a basis for limiting rights, even if those views are shared by the majority.

People are not only fallible when it comes to their religious beliefs; they often make mistakes about what makes life worth living. Therefore the state ought not to limit rights by resorting to a particular view about the good life. This does not mean that all conceptions of the good are equal or that they should be treated equally. For example if a group of people believed that eating the first born male at birth was a meaningful activity, the state would be justified in prohibiting their conduct. The state can found its prohibition on the basis that there is a “distinction between harms which all reasonable people would seek to avoid, and harms which are harms only against the background of a particular, intractability disputed conception of the good.” The first set of harms is neutral while the second set is non-neutral. A prohibition on eating the first born is a prohibition of a neutral harm, since all reasonable people would deem the activity to be harmful regardless of their particular conception of the good. Jehovah’s Witnesses believe that blood transfusions are harmful and they base this claim on their interpretation of the Old Testament. In general people that do not subscribe to that biblical interpretation do not consider blood transfusion to be harmful. This means that blood transfusions are an example of a non-neutral harm, since they are only harmful against the background of a particular conception of the good. Therefore the state would not be justified in prohibiting blood transfusions.

In order to justify its prohibition on Virtual Child Pornography the state cannot rely on arguments that show that the material is a non-neutral harm. Arguments in favour of the prohibition must be grounded in evidence that the material is a neutral harm. For example Feminists like Katharine Mackinnon make the claim that pornography degrades women and portrays them as inferior to men , while Feminists like Camille Paglia dispute this view and hold the belief that pornography celebrates and empowers women. Neither of these interpretations of the message that pornography sends is entirely unreasonable. If the state were to pick sides in the dispute, it would be promoting a particular view about the representation of sexuality at the expense of another reasonable view on the matter. Since the dispute is not one which could be solved by using public reason, the state ought to remain neutral and concern itself with combating harms that are agreed by all reasonable people to be harms.

I proceed by showing how the specific clauses of the limitations analysis interact with the prohibition of Virtual Child Pornography. I will limit my discussion of the reasons in favour of the prohibition, to those reasons that are grounded in the prevention of neutral harms.

Nature of the Right
Allowing the free dissemination of beliefs, opinions and other forms of expression brings with it immense benefits. It allows for intellectual, cultural, artistic and scientific progress whilst provoking discussion and aiding the search for truth. Since we are not infallible we cannot know with certainty that a particular opinion is false. When we suppress opinions that are believed to be false we risk missing out on the truth. By stifling beliefs that are different from our own we lose the opportunity to “challenge, reconsider and perhaps reaffirm” our own views.

Freedom of expression is the cornerstone of a functioning democratic state, since it gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives. Furthermore without the right to freely express beliefs society would disintegrate into a state of stasis where there would be no substantial intellectual growth.

It must also be acknowledged that expression is a vital component of human development. When people are exposed to a range of conflicting opinions on a subject they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own view on the matter. Engaging in this process is fulfilling because it is an exercise in autonomous opinion formation.

Nature and Extent of the Limitation
The penalty for Virtual Child Pornography is currently a prison sentence of up to ten years for the production, distribution or possession of the material. A 14 year old high school student could be imprisoned for a period of up to 30 years if she drew a cartoon or painted a picture of herself involved in sexual conduct, distributed copies to her friends and retained a copy for herself. It is not only existing works that would suffer the force of censorship.

The chilling effect on speech, caused by the Act, would be enormous since the risk of being imprisoned, would deter people from producing or distributing anything that could result in a criminal sanction. This means that the prohibition would prevent new works of art from being created. Furthermore the process of defending oneself in court places a financial burden on the accused, even in cases where the accused wins the case, the legal costs involved in fighting a case can be crippling. It is also possible that materials which fall outside the scope of the definition of child pornography proposed by the law would not be distributed since booksellers and video stores are unable to review all of the titles that are sent to them by publishers, for pragmatic reasons they may have to avoid stocking a large number of films and publication that contained sexual content, to avoid imprisonment.

One of the further problems with censorship is that it drives production of banned materials underground where they cannot be regulated at all. The prohibition of alcohol in America did not cease the consumption of liquor; it created room for criminal networks to take control of alcohol production and distribution. Prohibition gave criminals the financial resources to strengthen and expand their criminal empires. The forbidden fruit phenomenon means that the act of censoring material has the effect of increasing an individual’s desire for that material. Furthermore if viewers are under the impression that the media that they are exposed to has gone through a filtering process to remove all inappropriate forms of expression, then they are less likely to be critical of the material that they consume. Societies that allow for a broad selection of opinions create an environment that strengthens people’s analytical skills and trains them to question the views that are presented to them.

Importance of the Purpose of the Limitation and the Relation Between the Limitation and its Purpose
I have combined two sections of the limitations clause under one heading in order to discuss what the prohibition of Virtual Child Pornography aims to achieve and to assess whether prohibition will actually achieve those aims.

Firstly, it may be argued that since Virtual Child Pornography may be used to entice children to have sex with pedophiles, it ought to be prohibited. This argument fails on the basis that innocent objects like cartoons and candy may be misused by pedophiles to achieve the same end of seducing children, but we do not think that it would be appropriate to prohibit those items. Furthermore, the prohibition would not be an effective way of preventing pedophiles from enticing children, since they would continue to entice children with innocent objects.

Secondly, in some cases it is not possible to distinguish Virtual Child Pornography from Real Child Pornography. This will be the case where adults are made to look younger then the age of 18 or where images are created through the use of digital imaging software, which does not make use of performers at all. It is therefore argued that in order to prosecute Real Child Pornographers it is necessary to prohibit the Virtual counterpart. However, if it really is the case that a certain class of virtual images is indistinguishable from real images, “the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.” It seems that virtual Child Pornography would have the positive effect of reducing the amount of Real Child Pornography being produced; it would in fact be saving children from suffering abuse. In essence what is being argued is that in order to prohibit unprotected forms of expression it is necessary to prohibit forms of expression that would otherwise be protected. However in the Broadrick case this type of argument was held to be an affront to the very principle of freedom expression. In the same way that it is better to let ten guilty people go free than to punish one innocent person, “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”

Thirdly, it is argued that Virtual Child Pornography will encourage pedophiles to abuse real children. In order to address this argument I will provide a discussion of the empirical evidence on the matter. There are four types of evidence that attempt to show the link between pornography and violence against third parties. Firstly, there are laboratory experiments that show how exposure to pornography affects the behavior of men. Secondly, studies that describe the factors that play a role in causing sex offenders to commit crimes. Thirdly, statistical data that seeks to correlate the availability of pornography to acts of sexual violence. Finally, there are anecdotal accounts that detail the role played by pornography in cases of sexualized violence. Such accounts are typically from testimonies made by victims and perpetrators of sexualized violence.

Laboratory Experiments
Laboratory experiments are conducted by exposing subjects to pornographic images and assessing the levels of sexual aggression that are caused by the exposure. Numerous studies have failed to produce reliable results that prove that being exposed to pornography causes sexual aggression. The experiments were only able to show that being exposed to pornography caused subjects to revise their beliefs about how common certain sexual practices were.

Studies on Sex Offenders
Studies that have been conducted on sex offenders show that those men have been exposed to less pornography then the average man. Furthermore a large number of sex offenders “were raised with strict, antisexual, repressive attitudes.” This seems to suggest that it is healthier for a person to be exposed to pornography in an environment that supports sexual expression as opposed to one that condemns such expression. It is obviously the case that some sex offenders were also users of pornography. However using this evidence to support the claim that using pornography causes one to rape is as fallacious as using evidence that shows that some rapists are soccer players and suggesting that playing soccer causes people to rape. The number of people that play soccer or view pornography that do not commit rape far outweighs the numbers that do.

Correlative Studies
Studies that show a relationship between an abundant use of pornographic materials and high levels of sexual violence would not in themselves show that consumption of such materials caused sexual violence. The chain of causality could run in the opposite direction. It could just as well be the case that sex offenders purchased pornography after committing their crimes in an effort to relive their actions. There could also be independent factors that cause high levels of consumption of pornography and sexual violence, like a disproportionately high number of young men in society.

In addition to these problems there are numerous cases where there is an inverse relationship between the levels of violence and discrimination against women and the level of availability of pornography. In countries like Japan, Denmark and Germany there are very low levels of violence against women despite the fact that pornographic materials are easily accessible in these countries. On the other hand in countries like Iran and China where women are frequently subjected to violence and discrimination, there are strict policies against pornography. This is not sufficient evidence to show that an increase in pornographic materials decreases violence against women, but it does show that there are independent factors that affect both sets of data. Tolerant environments that place fewer restrictions on freedom of expression tend to allow for more pornography to be produced but they also reduce the levels of violence and discrimination against women.

Anecdotal Accounts
Catherine MacKinnon cites a disturbing case where “a brother holds up pornography magazines as his friend’s gang-rape his sister, making her assume the poses in the materials, turning her as they turned the pages.” It is shocking anecdotes like this one that have the power to sway our emotions and cause us to side with MacKinnon’s cause. Without trivializing the horrendous harms that were suffered by the girl who was gang raped a few things must be noted. First of all, the men that used the pornographic magazines could have done exactly the same thing if they used diagrams found in guides for newlyweds, sketches or written discussions of sexual positions found in religious texts like the Karma Sutra or in the sex advice section of women’s magazines. Such a large part of the causal explanation for why a man commits rape has to do with his dispositions and his psychological make up, “that it is likely that some similar crime would have suggested itself to him in due time.”

In their defense rapists have blamed their actions on the influence of pornography, in an effort to transfer responsibility from themselves onto the pornography industry. But it is not only pornography that has been blamed for the perpetration of violent acts. After watching the film The Ten Commandments, which showed a group of Hebrew women dancing around the golden calf in praise of it, a man in Germany became convinced that women were the root of all evil and he set out on a killing spree directed specifically at women. In another case a child attempted to murder his parents with a meat cleaver after watching a film based on Dostoyevsky’s book The Brothers Karamazov . Classical literature like the Odyssey is filled with extreme depictions of violence, as is the Bible. It is entirely possible for an individual to commit actions that are described in these texts.

“In arguing that exposure to pornography causes violent crimes against women, pro-censorship feminists dilute the accountability of men who commit these crimes by displacing some of it onto words and images, or onto those who create or distribute them.” Rapists ought to be held accountable for their actions. The defense that “porn made me do it” unfairly transfers responsibility. MacKinnon has argued that showing porn to a man is like shouting kill to a dog, but this crude analogy flies in the face of evidence that people are rational agents that are capable of deliberating about the material that they view and the opinions that they hear.

Unfortunately there will always be a few individuals that are highly susceptible to the influence of words and images. Placing restrictions on pornographic materials would burden those that enjoy them and it is likely that those individuals that would otherwise have been susceptible to the influence of pornography will be influenced by something else. “If we attempted to ban all words or images that have been blamed for inspiring or inciting particular crimes by some aberrant or antisocial individual, we would end up with little left to read or view.”

MacKinnon’s claim that “there is no evidence that pornography does no harm” is not a reasonable basis for the suppression of pornography. If we were to use her standard as a basis for censorship then we could substitute any word for the term pornography to justify censoring it. For example on this account the fact that there is no evidence that Bible stories cause no harm would be a good reason to prevent further production and distribution of the Bible.

The ultimate aim of the legislation is to protect children from harm. This is an admirable aim that is achieved by prohibiting Real Child Pornography. However the purpose is not achieved by prohibiting Virtual Child Pornography. I have demonstrated that virtual Child Pornography is unconnected to the abuse of real children. This means that the limitation on the right to freedom of expression is also unconnected to the prevention of child abuse.

Less Restrictive Means
It is evident that the costs of adopting the law would be heavy and it is not clear that there would be any benefit in doing so either. As Judge Barker once proclaimed “to deny free speech in order to engineer social change in the hope of accomplishing a greater good for one section of our society erodes the freedoms of all.” I have argued that the current definition of child pornography is too broad since it includes both real and virtual child pornography. If the section were completely struck down as being unconstitutional, we would be in the unfortunate position of leaving Real Child Pornography unregulated. In a recent Supreme Court decision in America the court struck down legislation that is similar to our own on the basis that it was unconstitutional. It is for this very reason that there is an imperative to amend the current law so that it no longer prohibits Virtual Child Pornography but that it continues to prohibit Real Child Pornography.

The Act’s purpose is to protect people, especially children from harm, and it can achieve this purpose without unduly infringing the right to freedom of expression by only prohibiting Real Child Pornography. This can be achieved by reformulating the existing definition of child pornography. The following definition should be used in place of the one currently found in S 1 of the Films and Publication Act.

Revised Definition of Child Pornography
Child pornography includes any actual photograph or film of a person who is under the age of 18-
(i) Engaged in sexual conduct;
(ii) Participating in, or assisting another person to participate in, sexual conduct; or
(iii) Showing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to a sexually exploitative infringement of that person’s dignity.

Furthermore the act can take measures to regulate particular forms of Virtual Child Pornography that are offensive, without the use of criminal sanctions. A degree of caution must be taken when it comes to regulating offensive material, given the range of materials that people find offensive. People suffer genuine offence at the sight of garish clothing; homosexual kissing and poor table manners yet few of us would be in favour of regulating depictions of these things. However there does seem to be a case in favour of regulating sex in public, making loud noises in the middle of the night or the desecration of religious symbols. The model that I will be using strikes a balance between competing interests to determine the content and extent of what should be regulated.


Regulating Offensive Material
I will now provide an account of Joel Feinberg’s framework, that I will use to determine the manner and extent of regulation that is appropriate to the offending material. The regulatory model works by balancing the seriousness of the offence against the reasonableness of the offence. Further procedures determine which offending parties interests ought to be taken into account and they distinguish between different types of offensive material.

The Seriousness of the Offence
The seriousness of the offence can be determined by examining the following three factors. Firstly, the intensity, durability and extent of the repugnance produced. Secondly, the effort required to avoid making contact with the offensive material. Thirdly, whether the viewers of the material “willingly assumed the risk of being offended.”

The Reasonableness of the Offence
The reasonableness of the offending party’s conduct can be determined by examining the following four factors. Firstly, the personal importance of the material to the offending party. Secondly, the social value of the material. Thirdly, the motive of the party causing the offence. Fourthly, “the availability of alternative times and places where the conduct in question would cause less offence.”

Mere Offence and Profound Offence
Joel Feinberg makes an important distinction between material that is merely offensive and material that is profoundly offensive. Merely offensive material has the following four characteristics. Firstly, the experience triggered by the material is of a trivial nature. Secondly, the offence must be perceived for to it have an affect and it constitutes an affront to one’s physical senses. Thirdly, the offence is experienced in a personal way, which means that the offended party thinks of herself as being personally wronged by the offending party. Fourthly, the offence is thought to be wrong because of the unpleasant states that it causes, not because it is thought to be inherently wrong.

Profoundly offensive material has the following four characteristics. Firstly, it is experienced in a serious and often shattering way. Secondly, the idea of the conduct occurring is offensive in itself and one does not need to perceive it to be offended. Thirdly, the offence cannot be avoided by staying out of physical contact with the material. Fourthly, the offence is of an impersonal nature, which means that the conduct does not directly target the offended party and can be understood as an affront to the offended party’s moral beliefs.


The Offended Parties’ Interests
One final consideration must be taken into account before a decision can be reached on how to regulate the offending material. It must be determined which offended parties should be given consideration and I will do this by looking at four categories of people. Firstly, all observers of the material. Secondly, all captive observers. Thirdly, people that are offended by the bare knowledge that the material is being produced or distributed in a specific location that they cannot observe. Fourthly, any offended party that has the bare knowledge that making the material legal will result in it being produced and distributed somewhere.

The problem with considering the people in the first group is that the category includes those that willingly assumed the risk of being offended and still chose to view the material, which means that the group is too broad. The people in the second group would not only refer to people that are strapped down and forced to watch hours of the offending material. It would include people that do not choose to be exposed to offending materials that cannot be reasonably avoided, like those subjected to billboards or other forms of advertising that depict the material. I would argue that the interests of people in this group are the most important of the four, since they are innocent parties that hold widely shared interests. I would argue that placing a large amount of importance on interests of those people in the third group would cause an excessive burden to those that value the offending conduct. It must be noted that those that are offended by the thought of their interracial neighbors engaging in sexual acts behind closed doors, would fall under this third group. Those in the fourth group could accurately be described as abnormally sensitive and this on its own would constitute a reasonable basis for paying less attention to their concerns, but there is an even more pressing reason for not regulating material with them in mind. Carrying out the demands of this group would be a major imposition on personal privacy. Regulation would require police officers to burst into bedrooms to make sure that no one was doing anything offensive, a scenario that was all too familiar in South Africa during Apartheid.

Regulating Virtual Child Pornography
I will now use the model that I have presented to determine how virtual child pornography should be regulated. It must of course be noted that not all forms of Virtual Child Pornography are offensive. Recognized works of art like those produced by renaissance painters, or films like American Beauty are only considered offensive by extremely prudish members of our society. In this section I will therefore only be considering those forms of virtual Child Pornography that are indistinguishable from Real Child Pornography but do not make use of real children. I think those forms of the material are widely regarded as aesthetically disgusting and offensive.

Categorizing the Nature of the Offence in Virtual Child Pornography
The material produced by virtual child pornographers is most accurately described as profoundly offensive. Firstly, because the offense that it causes is particularly severe. Secondly, one does not need to be in contact with it to feel offended, but being in contact with the material would only exacerbate the situation. Thirdly, the offense is of an impersonal kind.


The Seriousness of the Offence
The extreme nature of the content ensures that the intensity of the repugnance caused would be large. However the seriousness of the offence can be reduced by taking regulatory measures to limit the extent and durability of the offence, as well as making it easy for people to avoid contact with the material if they wish to do so. For example displaying images of virtual child pornography on billboards across a city would increase the severity of the offense since it would target a large captive audience, while restricting promotion of the material to adverts placed in sex shops or pornographic websites would reduce the severity of the offense. Books containing the material could be adequately marked and sealed to prevent people from stumbling across them unwittingly and being offended.

The Reasonableness of the Material
The material is of great personal value to virtual child pornographers since they derive their livelihood from distributing it. It is also important to those that buy the material since they derive pleasure from watching or reading it. Any regulation of the material would constitute a limitation on freedom of expression and there is social value in allowing expression to go unhampered, but this does not mean that no regulation ought to be permitted. Feinberg states that “unpopular, unorthodox and extreme opinions no less then any others need their spokesmen, in order that our chances of discovering truths and making wise decisions be increased.” Virtual Child Pornography embodies attitudes that have political content, which play a role in the marketplace of ideas and are thus worthy of a degree of protection. The material is undoubtedly unpopular but at least some of it is motivated by an interest in reforming social values.

Conclusion
I began by drawing a distinction between Real Child Pornography, which involves the use of real children and Virtual Child Pornography, which does not make use of children but depicts or describes them engaged in sexual activity. I argued that the state is justified in prohibiting Real Child Pornography because of the severe harm that it causes to the children that are used to produce it. I argued that a prohibition on Virtual Child Pornography could not be based on a particular conception of the good, since the state has a duty to base its reasons for limiting rights on neutral harms. I examined the importance of the right to freedom of expression by demonstrating its role in a functioning democracy, the search for truth and the personal development of citizens. I argued that the prohibition is a severe infringement on the right because of the penalty that it imposes and the chilling effect it has on expression. I examined a series of arguments that aim to show that Virtual Child Pornography results in some form of harm. My assessment of the empirical evidence demonstrates that a sufficient link can not be drawn between the consumption of pornography and harm to others. I proceeded to argue that less restrictive measures can be taken by the state. The first measure involves redefining the current legal definition of child pornography so that it only refers to Real Child Pornography. The second involves a nuisance regulation of Virtual Child Pornography that strikes a balance between the interests of those that are offended by the material and those that produce and value the material. In light of the above arguments it must be concluded that the current prohibition on Virtual Child Pornography is an unconstitutional violation of the right to freedom expression, which cannot be justified by the limitations clause.



Bibliography

Books
Joel Feinberg, The Moral Limits of the Criminal Law Offense To Others Law, (Oxford University Press, 1987)
Denise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution, (Juta, 1997)
Nadine Strossen, Defending Pornography Free Speech, Sex and the Fight for Women’s Rights, (Doubleday, 1996)
Feminism and Pornography edited by Drucilla Cornell, (Oxford University Press, 2000)
J De Waal et al, Bill of Rights Handbook, (Juta, 2005)
Jonathon Wolff, An Introduction to Political Philosophy, (Oxford University Press, 1996)

Journals
Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society, Journal of Law and Society vol 29, No 3, September 2002

Cases
Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)
Broadrick v Oklahoma, 413 U. S., at 612 (1973)
Case v Minister of Safety and Security: Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC)

Legislation

Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256 (CPPA).
Constitution of the Republic of South Africa, 1996
Films and Publications Act, 1996