Oliver Wendell Holmes, the great dissenter of the early 20th century US Supreme Court, once famously said that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. Given the size of the pornography market in the US today (its revenues far exceed that of Hollywood) some might question the universal wisdom of equating truth with market power.
It is doubtful that Holmes had pornography in mind when he spoke these words, and even more doubtful that John Stuart Mill, from whose essay, 'On Liberty' the words were borrowed, was thinking of the top-shelf industry. Their remarks, echoed in many recent cases about freedom of speech in the English courts, were made primarily in the context of the freedom to express political thought.
Lord Steyn, having quoted Holmes in the landmark 1999 House of Lords case about prisoners' rights of access to journalists, continued in the same vein: “Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate.”
So, to what extent is the freedom of expression protected by the courts, which are dependent on the subject matter of what is said? What difference have the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights made to the right to free expression in this country?
Case law from the European Court of Human Rights in Strasbourg, which the English courts have a statutory obligation to take into account but are not bound by, has traditionally placed different levels of importance on different classes of expression. Broadly, three categories have emerged: political, artistic and commercial expression. The courts have attached by far the greatest weight on protection of the first category.
If a publication falls within the political sphere, it is likely to be protected, even if it is offensive or disturbing to many people. In 2002, the Court of Appeal upheld a challenge brought by the ProLife Alliance against the BBC's refusal to broadcast its public election broadcast on the grounds of taste and decency, having concluded that it would offend public feeling contrary to the Broadcasting Act 1990. The intended broadcast depicted graphically the effects of abortion on a foetus, which many would have found disturbing. The court noted that if a television producer had been insensitive enough to include these images in an episode of a television soap, the broadcaster would have forbidden it being shown and the courts would have upheld that decision. However, where the images were used as part of a party political election broadcast, the protection afforded was in an altogether different league, and the margin of discretion afforded to the BBC to balance the rights of others under Article 10(2) was narrow.
Providing that election broadcasts are truthful and not sensational, only in the rarest of circumstances can they be rejected. The BBC subsequently obtained permission to appeal to the House of Lords, with its judgment expected soon. Whatever the outcome, it is doubtful that anything will be said to dilute the importance attached to political expression.
So, what about protection for publications that most would consider to be at the other end of the free-expression spectrum? The first question is whether, in spheres so far removed from democratic political debate, the protection of Article 10(1) of the convention is engaged at all. While in the past it has been questioned whether pure 'entertainment' falls within Article 10, the courts now seem to accept that even hard-core pornography falls within its bounds. In R v Perrin (2000), the defendant was convicted under the Obscene Publications Act 1959 for publishing what even he had described as “filthy sites” on the internet. The prosecution accepted that Article 10(1) was engaged, yet the appeal failed because the court had no difficulty in finding that the existence of the offence under the 1959 act was within Parliament's discretionary area of judgment under Article 10(2), to provide for the protection of public morals.
The Court of Appeal in Perrin was treading a well-worn path from Strasbourg, where the European Court in cases such as Hoare v UK, involving the distribution of hard-core pornography, has regularly afforded supremacy to arguments under Article 10(2). When questions of morals or religion are concerned, the European and domestic courts are far happier to give states a wider margin of appreciation in the scope of their criminal laws, and wider margins of discretion to censors.
As a general principle, such an approach is right, yet sometimes the Strasbourg court has gone too far. In Otto-Preminger Institute v Austria the Strasbourg Court upheld the Austrian government's seizure of a film that caricatured aspects of Christianity on the basis that it was “likely to arouse justified indignation”. A similar approach was followed in Wingrove v UK, when Strasbourg upheld the British Board of Film Classification's refusal to issue a certificate licensing a video that depicted erotic visions experienced by a 16th century Carmelite nun.
In each case, the public had the choice whether or not to enter the cinema or buy the video in order to see the film. The risks of being offended were therefore clearly minimised. These decisions seemed to ignore the principle of moral and personal autonomy clearly articulated by US professor of law Ronald Dworkin, which demands that people have the right to choose to view what they want, whether they be works of 'art' or not, and to decide for themselves whether such publications offend or have value to them. Relatively few people would go so far as to suggest that the new South Bank Saatchi Gallery, housing Damien Hirst's infamous sliced cow in formaldehyde, or the West London gallery showing a picture of David Beckham as Christ, should be closed because of the risk of offending sections of society.
As we move into an undoubtedly more secular – and hopefully more liberal – 21st century the Mary Whitehouse school of thought, holding that blasphemous and sexually explicit images are co-evils with depictions of violence from which society must be protected, no longer holds water. Why should far-right political parties that openly vent views which, while carefully couched to avoid committing offences under race relations legislation, clearly stoke racial tension and indirectly lead to violence against the most vulnerable groups in our society, be seen as more worthy of protection under Article 10 just because their views are political? Compare this with those who produce images that might offend the moral or religious sensibilities of some, but which, when available only to those who wish to see them, are unlikely to lead to real harm?
It is time the requirements of proportionality under Article 10(2), which demand a “pressing social need” before restrictions on freedom can be justified, are applied with greater force when censors or other branches of the state seek to restrict free expression in realms other than simply the political.
Sam Grodzinski is a barrister at Matrix Chambers specialising in public law and human rights