When deliberating over whether access to pornography should be prohibited, four areas of contention must be elaborated upon and evaluated critically to provide a sensible basis on which a judgement can be made. Firstly, it must be concluded whether pornography can be classed as a form of speech, and whether it enjoys the same protections as art and literature under the principle. Secondly, works such as those of Catherine MacKinnon can be drawn upon to offer a feminist perspective of the effects of pornography on the treatment of women within modern democratic society. Moreover, the principles of Devlin and Feinberg offer relevant acumen regarding the criminalisation of pornographic media. Overall, this essay will argue that whilst access to pornography should not be entirely prohibited; publications that depict ‘extreme’ situations should be subject to regulation and restriction.
Freedom of speech is archetypally recognised as a basic human right in free and democratic societies. When contending whether speech that may be deemed offensive should be safeguarded one may refer to the judgement of Redmond-Bate v. DPP:
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence..."
Any speech therefore, however disagreeable it may be; that does not incite violence must be allowed in our society. One must then consider whether pornography may be classed as speech. Nadine Gourgey argues that speech is not solely defined as the communication of information, but rather encompasses any act made by a party that which can be viewed and comprehended by another. Gourgey states that if pornography may be classed as speech then society would need compelling evidence for its regulation than it might require for regulating public conduct. As a free and democratic society, Gourgey asserts that we are committed to upholding a 'Free Speech Principle.'
However, it might appear that pornography cannot be protected as free speech through the traditional justifications that the public must have access truth and democracy. In fact, Gourgey hints that pornography does the opposite, as many feminists argue, it 'hides and distorts the truth' regarding what is 'normal' sexual conduct. It goes without saying that pornography cannot be said to provide any insight into democratic process.
On the other hand, these justifications are based solely on the requirements of society rather than the individual. Gourgey 's article offers support for the claim that from an individual stance, pornography offers a means by which the rights ' self-development and self-fulfilment' may be realised. If this is to be believed, then pornography is justifiably unregulated.
In contrast, Frederick Schauer wrote that:
“...a refusal to treat hard-core pornography as speech in the technical sense at issue is grounded in the belief that the prototypical pornographic item...