It's time to abolish the obscenity law

Obscenity law robs us of agency. And it tells us that we are depraved.

"Do they even HAVE obscenity trials any more?!' my old editor at the Erotic Review exclaimed, when I told him I was live-tweeting from one this week (read David Allen Green on the not guilty verdict here).

Well, yes, they do, and it's a pretty surreal experience to think that statute from the burgeoning permissive society is still being used to make judgments about life in Britain 2012, a place where it's all too easy to have an expectation of sexual liberty and free speech, and a sense that the only person you need to gain permission from is the one you're doing something with.

That the precedent for obscenity trials quoted is still the Lady Chatterley trial of 1960 (R v Penguin Books) is even more bizarre, particularly if, like me, you studied the case at university. It's evidence of a time where artistic merit had barely evolved as a defence for literature with dirty bits.

Clearly, the artistic merit of pure pornography is even more contentious, where it's even appropriate, and while the evolution of English obscenity law has been marked by two seminal cases since - the Oz magazine trials of 1971, and the trial of Inside Linda Lovelace in 1977 - neither of these offer much in the way of obvious and direct relevance to prosecutors and jurors examining the kind of internet and DVD porn comprising obscenity trials today.

Take a look at the Crown Prosecution Service's directions on the OPA 1959 if you want to see what now constitutes 'obscene'. The list is 'not exhaustive' but includes sex with animals; sex with minors; fisting; torture, activities involving perversion and degradation (urination, vomiting and excretion). We've certainly moved on from being mortified by the egregious use of the word 'fuck', as those who brought the Lady Chatterley to trial were.

But the test of obscenity - whether something 'depraves and corrupts' - remains the same: 'to deprave means to make morally bad, to debase or to corrupt morally. To corrupt means to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality; to debase; to defile it.'

Obscenity law posits that boundaries of decency must be drawn somewhere. Obscenity is culturally relative. It is about moral judgment. It has to be in order to protect the moral fibre of the society it is serving. It just so happens that this frequently means castigating sexual subcultures by labelling their activities as debased, often with little attempt to understand practices which are outside the average person's experience.

Perhaps most curiously, the OPA 1959 makes a crime of publishing material featuring acts which are not illegal in themselves. Prosecuting those who distribute obscene material isn't about preventing physical or sexual harm, nor is it about avoiding provocation of crime, or illicit behaviour. It's about deciding whether the sanctity of a mind and character of the person exposed to the so-called obscene materials is at stake. Go back to the CPS definition of what constitutes obscene and you'll see we're not talking about mainstream porn, but the kind you only find when you know what you're looking for.

In its bid to establish moral standards, Obscenity law robs us of agency. And it tells us that we are depraved merely because we have thoughts about the acts designated as depraved; thoughts other than revulsion.

Does obscenity law even have any place in 21st century English law then? Should it perhaps not be abolished, as blasphemy law was in 2008, and treated as a similar cultural and legal anachronism? Surely yes, if the precedent for it is still a trial in which a conservative white male establishment failed to grasp the concept of artistic expression as a means of defence, and instead sought to impose standards on a society that was relaxing its morals faster than it raised its hem lines.

The outcome of R v Peacock -- a landmark because the defendant pleaded not guilty -- sets a contemporary precedent for discussing pornographic obscenity which should have little to do with its potentially degenerative effect on wives and servants as the Chatterley trial did - unless that's the point, of course.

Nichi Hodgson is a 28-year-old freelance journalist specialising in sexual politics, law and culture.

Nichi Hodgson is a writer and broadcaster specialising in sexual politics, censorship, and  human rights. Her first book, Bound To You, published by Hodder & Stoughton, is out now. She tweets @NichiHodgson.

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What Donald Trump could learn from Ronald Reagan

Reagan’s candidacy was built on more than his celebrity. Trump not only lacks experience as an elected official, he isn’t part of any organised political movement.

“No one remembers who came in second.” That wisdom, frequently dispensed by the US presidential candidate Donald Trump, came back to haunt him this week. Trump’s loss in the Iowa Republican caucuses to the Texas senator Ted Cruz, barely beating Senator Marco Rubio of Florida for second place, was the first crack in a campaign that has defied all expectations.

It has been a campaign built on Trump’s celebrity. Over the past eight months, his broad name recognition, larger-than-life personality and media savvy have produced a theatrical candidacy that has transfixed even those he repels. The question now is whether that celebrity will be enough – whether a man so obsessed with being “Number One” can bounce back from defeat.

Iowa isn’t everything, after all. It didn’t back the eventual Republican nominee in 2008 or 2012. Nor, for that matter, in 1980, when another “celebrity” candidate was in the mix. That was the year Iowa picked George H W Bush over Ronald Reagan – the former actor whom seasoned journalists dismissed as much for his right-wing views as for his “B-movie” repertoire. But Reagan regrouped, romped to victory in the New Hampshire primary and rode a wave of popular support all the way to the White House.

Trump might hope to replicate that success and has made a point of pushing the Reagan analogy more generally. Yet it is a comparison that exposes Trump’s weaknesses and his strengths.

Both men were once Democrats who came later in life to the Republican Party, projecting toughness, certainty and unabashed patriotism. Trump has even adopted Reagan’s 1980 campaign promise to “make America great again”. Like Reagan, he has shown he can appeal to evangelicals despite question marks over his religious conviction and divorces. In his ability to deflect criticism, too, Trump has shown himself as adept as Reagan – if by defiance rather than by charm – and redefined what it means to be “Teflon” in the age of Twitter.

That defiance, however, points to a huge difference in tone between Reagan’s candidacy and Trump’s. Reagan’s vision was a positive, optimistic one, even as he castigated “big government” and the perceived decline of US power. Reagan’s America was meant to be “a city upon a hill” offering a shining example of liberty to the world – in rhetoric at least. Trump’s vision is of an America closed off from the world. His rhetoric invokes fear as often as it does freedom.

On a personal level, Reagan avoided the vituperative attacks that have been the hallmark of Trump’s campaign, even as he took on the then“establishment” of the Republican Party – a moderate, urban, east coast elite. In his first run for the nomination, in 1976, Reagan even challenged an incumbent Republican president, Gerald Ford, and came close to defeating him. But he mounted the challenge on policy grounds, advocating the so-called “Eleventh Commandment”: “Thou shalt not speak ill of any fellow Republican.” Trump, as the TV debates between the Republican presidential candidates made clear, does not subscribe to the same precept.

More importantly, Reagan in 1976 and 1980 was the leader of a resurgent conservative movement, with deep wells of political experience. He had been president of the Screen Actors Guild in the late 1940s, waging a campaign to root out communist infiltrators. He had gone on to work for General Electric in the 1950s as a TV pitchman and after-dinner speaker, honing a business message that resonated beyond the “rubber chicken circuit”.

In 1964 he grabbed headlines with a televised speech on behalf of the Republican presidential candidate, Barry Goldwater – a bright spot in Goldwater’s otherwise ignominious campaign. Two years later he was elected governor of California – serving for eight years as chief executive of the nation’s most populous state. He built a conservative record on welfare reform, law and order, and business regulation that he pushed on to the federal agenda when he ran for president.

All this is to say that Reagan’s candidacy was built on more than his celebrity. By contrast, Trump not only lacks experience as an elected official, he isn’t part of any organised political movement – which enhanced his “outsider” status, perhaps, but not his ground game. So far, he has run on opportunism, tapping in to popular frustration, channelled through a media megaphone.

In Iowa, this wasn’t enough. To win the nomination he will have to do much more to build his organisation. He will be hoping that in the primaries to come, voters do remember who came in second. 

This article first appeared in the 05 February 2015 issue of the New Statesman, Putin's war