Pornography, and Freedom of Expressio Term Paper

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The freedoms of the Canadian people, as guaranteed in the Charter of Rights and

Freedoms states in section 1 that ". . . guarantees the rights and freedoms set out in it subject only

to such reasonable limits . . . ." This means that specific freedoms, though guaranteed in section

two of the Charter as "fundamental freedoms" are subordinate to limitations as the government

sees fit, unlike the freedoms of the United States constitutional freedoms, which have no limits put

on them, and are occasionally abused by groups such as the Ku Klux Klan, and anti- government

militia groups as a result. Pornography, hate propaganda, and racist literature are all examples of

areas of expression subject to limitation by the government in Canada, as they are all viewed as


The first laws governing obscenity in Canada were created in 1892. These laws prohibited

the sale and display of any material which was deemed immoral. Later, in 1927, the obscenity

laws were expanded to include anything referring to "the corruption of public morals." The laws

were expanded to make criminal the possession, circulation, distribution or fabrication of any such

material. During the 1950's, there was an increase in the availability of pornographic materials.

This resulted in two opinions regarding pornography to surface; one opposed to the pornography

industry, and demanded more rigid and strict regulations, while the other side of the debate called

for no further regulations. During 1958, amendments were put forth in the House of Commons to

define the term "obscene" in the Criminal Code of Canada, and were adopted in 1959.

Throughout the 1970's, there was an increased outcry by the Canadian public against the growing

amount of pornographic material available in Canada. A committee was formed to look at the

problem, and in 1978, decided that Canadians were justified in calling for the control of such

material. This advice, however, was never acted upon.

In 1992, Donald Butler appealed to the Supreme Court of Canada to overturn a decision

regarding his adult oriented members only video store. Mr. Butler opened his store in Winnipeg in

August of 1987. Later on that same month, the Winnipeg police force entered and seized the

inventory of Mr. Butler's store, and charged him with a total of 173 counts of selling, possessing

with the intent to distribute, and possessing with the intent to sell, obscene material, contrary to s.

159(1-2)(a) and 163(1-2)(a) of the Criminal Code of Canada. Mr. Justice J. Sopinka heard the

appeal, and reached the decision that "the restriction on freedom of expression does outweigh the

importance of the legislative objective."

The problem with an attempt to restrict what the public can or cannot view by the

government is that it is an infringement on the principle of individual liberty, as described by John

Stuart Mill. Mill states that so long as one is not causing harm to others, then "In the part which

merely concerns himself, his independence is, of right, absolute." Thus, the government has no

right to stop the public from viewing pornographic material, so long as no one was harmed in its

distribution or production. Thus, depictions of sex involving, or combined with, children,

violence, cruelty and/or dehumanization can be regulated or censored, as they are causing harm to


However, one could argue that if the depictions of sex combined with any of the

aforementioned violent actions is done by a person of legal age of consent, and done willingly by

this person, then it is not causing harm to let it be viewed by the public, as the persons involved

were willing participants. In such cases, censorship should still occur, as there must be a

reasonable limitation on the freedom of expression of others when there is the promotion of harm

to others in pornographic depictions. The distribution of such acts meets the definition of obscene

as defined in the Criminal Code of Canada, and therefore should be regulated, so as to avoid the

indirect harm which may be caused to the groups commonly depicted in such scenarios, namely


The potential for indirect harm is best described as an analogous situation in which an

individual who views a depiction of a violent sexual encounter, and becomes so aroused, or sees

such acts as normal in society, that he goes out to commit the same acts which he had just

witnessed. Thus there is an indirect harm caused to women as a result of the distribution of such

materials which promote harm to women, and are now at risk for being assaulted. Thus the

government should censor pornographic materials which offer such depictions. The potential for

an individual who agrees with harm to women, or views women as subservient to men is not a

social norm, and so materials depicting such should not be tolerated in society.

There are those who would state that those who act out on such intense impulses are but a

few of the many who view such material, and so the restriction of such material is essentially

punishing the majority for the evils of a select few. However, the same could be said about laws

governing domestic violence, or arms restrictions; "why are there laws to regulate specific aspects

of society simply because of one or two individual's actions or inactions? Why does the

government make it so that John Doe, who's children haven't touched his guns before, store his

ammunition and weapons locked up and separate?" Many anti-pornography groups state that if it

has happened before, then it could happen again. The potential for an individual who does feel

compelled to act upon viewing such material is too great for there to not be any government


There is also an analogy made by these same groups of pornography being no different

than any anti-minority hate propaganda. They view pornography as being anti-women. They state

that women are held as objects, not persons, and that women are commonly subordinate to men,

and are depicted as having no sense of authority over themselves as a result. The proponents of

pornography say that this is not the case, as the women who make these films are fully aware as

to what they are making, and do not view the films or themselves as promoting the subordination

of women. This does not seem to be the case, as most pornographic depictions have the male as

the dominate subject in the setting, while the woman simply does what she is told to do. It is not

common place to see a equal and mutually inclusive encounter in a pornographic depiction, with

the male and female having equal authority in the situation.

Although the problem of pornography is still persistent in society, the status of women in

seems to be less affected today than it would have been thirty or forty years ago. Though many

sexist attitudes do still persist in society, women are continuing to overcome these archaic

stereotypes to reach a position of equality with men. The elimination of such demeaning roles in

pornographic depictions however would no doubt aid in the abolition of views that have to be

eliminated before true equality of the sexes can be obtained.

Pornography and Freedom of Expression


Harm, Censorship, and Equality

Chris Stone

ID. 97107692

December 1, 1997

Philosophy 1100A

Prof. N. Brett

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