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The right to freedom of expression is a fundamental right, which has not traditionally been prescribed by law, but can be considered more of a moral right. However the enactment of the Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law, Article 10 of which creates a right to freedom of expression. Article 10 (1) states Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. However this right to free speech is qualified and not absolute as Section 10 (2) imposes a number of restrictions upon its exercise; The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the reputation or rights of others.
Two of these restrictions prescribed by law are the criminal offences of Obscenity and Blasphemy, which abridge freedom of expression in order to protect individuals and in some cases the public in general, against harm to moral integrity and uphold standards pf public behaviour as well as protecting religious sensibilities. The extent to which they constitute a restriction on freedom of expression, however, is a contentious issue and will be considered in due course. The law on obscenity is aimed at protecting those who come to it willingly, against moral harm, which the obscene article is said to threaten. It guards moral integrity or protects some public interest in maintaining moral standards in a way, which overrides personal freedoms. Consequently any expression that contravenes accepted standards of social morality is potentially subject to restrictions. Such restriction on peoples expression is justified by the harm principle as developed by John Stuart Mills whereby expressive material may only be restricted / interfered with if can be shown to cause harm to others.
However there are divergent views on what constitutes harm. Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluate. Others, instead of concentrating upon material harm are prepared to include moral and ideological harm within the definition, which is less easy to establish upon objective criteria since it is not always scientifically verifiable. Hart, similar to Mills also favoured reliance upon personal harm and whereas these views are more individualistic, Devlin, on the other hand, believed that society needs a common moral core to retain its stability and therefore any attacks on basic moral standards threaten and cause harm to society as a whole even if no individual suffered immediate and identifiable personal harm. This essentially requires the law to enforce a wider range of moral demands.
However it is undesirable to indiscriminately criminalize all immoral conduct or expression, as the resulting interference with freedom of expression would be extensive especially due to the uncertain scope of morality within a diverse society. It must be clarified that the protection of morals is not purely a philosophically or politically advanced notion, as under Article 10 (2) of the ECHR, it is laid down as one of the justifications for interferences with freedom of expression. This also recognises that the steps necessary for the protection of morals will depend upon the morality to which the country is committed and thus the European Court of Human Rights will allow a margin of appreciation to states in deciding what moral standards they should enforce and by what means. One of the means adopted in Britain to enforce such morality is the Obscene Publications Act 1959, which makes it an offence to publish an obscene article. Under Section 1 (1) An article shall be deemed obscene if its effect or the effect of one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely in all the circumstances to read, hear or see the matter. This offence is a welcome liberalisation of the previous offence of obscene libel whereby in order for an article to be considered obscenely libellous it was sufficient that some part of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall as established in R v Hiking (1868).
Therefore not only was it possible to obtain a conviction by taking an isolated passage in a book out of its context and prove that it tended to deprave and corrupt, it was sufficient to prove that it would deprave and corrupt the most sexually nave person who may chance upon it. Thus the law was fairly wide and the tests laid down were easy to satisfy resulting in a great restriction upon freedom of expression. However, as Salmon LJ commented in R v Calder & Boyer's (1968) the Act of 1959 was an Act to amend the law relating to the publication of obscene material and it has certainly had a liberal ising effect in many respects. Under the current law, the likely readership who may be depraved and corrupted is far more restricted as it is any persons who are likely in all the circumstances to see / read the allegedly obscene material. This initially received clarification in R v Calder and Boyer's (1968) where it was held that clearly this cannot mean all persons, nor can it mean only one person for there are individuals who may be corrupted by almost anything. The court is of the opinion that the jury should be directed to consider whether the effect of the book was to deprave and corrupt significant proportion of the persons likely to read it.
The issue was also addressed in R v Whyte (1972) where the question for the Magistrates was whether pornographic material, sold by the defendant, was likely to corrupt and deprave the likely readers, who were it was decided middle aged men since these were the frequent customers. A significant proportion of these likely readers were the hardcore of these regular customers whose morals were already in a state of depravity and corruption. Therefore it was doubted that such minds could be open to any immoral influence which the books were capable of exerting so that the books would not have a tendency to deprave and corrupt. Although this defence was initially accepted, the House of Lords reversing the QBDs decision allowed the prosecutors appeal on the basis that the Act is not merely concerned with the once for all corruption of the wholly innocent, it equally protects the less innocent from further corruption, the addict from feeding or increasing this addiction. It was also held that in determining the question of who are the likely readers of an obscene article, it is not appropriate to consider what is the largest category of most likely readers and then to exclude persons falling within other categories for consideration as some of the material may still fall into their hands and thus they may also constitute the likely readership.
Therefore the jury may be directed that the readership may include any persons not unlikely to see it. This is a narrow more intrusive test, which limits the scope of the offence to some extent, thus limiting the restrictions upon various forms of expression. These likely readers must be depraved and corrupted for the article to be considered obscene and thus a more difficult question is in relation to this is what constitutes being depraved or corrupted. This is the aspect of the offence based upon the aforementioned harm principle so that restriction of obscene materials can be justified on the grounds that it causes harm to those who come into contact with it.
However what constitutes harm in this context is also unclear as the case law has not been explicit on the matter. Some clarification was attempted in R v Anderson (1972) in which the defendants, who were publishers of a magazine aimed at school children, were charged under the 1959 Act for publishing articles of a violent and sexual nature without any suggestions that such activities were wrong. The defendants, having bought in a highly qualified psychologist, attempted to show that the articles in question were not obscene, as they did not tend to deprave and corrupt. The judge directed the jury that they should convict if they were satisfied that the articles were objectively filthy, lewd, loathsome or lewd. On appeal it was held the judge had misdirected the jury since articles that were filthy, lewd, loathsome or lewd were not necessarily obscene within the meaning of the Act. Lord Widely commented that obscenity means more than mere disgust or repulsion and involves an element of moral harm, which is not scientifically evaluate so that the use of expert evidence on the issue, as was the case here, was erroneous since the matter must be tried by jury without assistance or expert evidence.
Therefore in accordance with this, an article can be said to deprave and corrupt a person if it results in as suspension or complete destruction of their moral standards. It was further advanced in Whyte (1972) that deprave and corrupt referred to the effect of an obscene article on the mind, including emotions, and it was not necessary this was manifested in any physical or overt behaviour, therefore in this sense the harm may be seen as more individualistic. However it has been established that obscene material may not always morally harm its likely readers and thus will not tend to deprave and corrupt, where it produces in them an aversion to the behaviour described, often referred to as the aversion theory. This argument was advanced in Calder and Boyer's (1969) where it was the novel Last exit to Brooklyn that was alleged to be obscene on the grounds that it purported to give graphic descriptions of the depravity and degradation in Brooklyn. At trial the defendants, although claiming that the novel was in the interests of literature, conceded that the tendency of the book was to shock the reader into a rejection of the evils described. The trial judge failed to put this defence to the jury and consequently the defendants were convicted.
On appeal this was criticised and the aversion argument was endorsed. It was held that the effect of the book was intentionally disgusting, shocking and outrageous; it made the reader share in the horror it described and thereby so disgusted and outraged him that he would do what he could to eradicate those evils. Therefore instead of tending to encourage anyone to homosexuality, drug taking, or brutal violence, it would have precisely the reverse effect so that the book was not obscene. This indicates that extremely offensive material may benefit from the aversion argument and thus this will not allow all forms of expressions to be interfered with, enhancing rather than restricting freedom of expression. Ultimately, however, there is still potential for the legislation to restrict freedom of expression, but this potential interference is mitigated significantly through the legal defence of public good which was established in 1959 was under Sec 4 (1) of the Obscene Publications Act. This states that a person shall not be convicted of an offence against section 2 of this Act it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern and under Sec 4 (2) expert witnesses can be called to identify the literary, artistic, scientific, or other merits of the article but not to comment on its alleged tendency to deprave and corrupt...
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Research essay sample on Obscenity Blasphemy And Freedom Of Expression
