•This phrase was used in 1964 by the US Supreme Court Justice Potter Steward to describe his threshold test for obscenity in Jacobellis v. Ohio.
•In explaining why the material at issue in the case they were determining was not obscene, he said:
Image: FREDRICK ONYANGO
“I can’t define pornography, but I know it when I see it”.
This phrase was used in 1964 by the US Supreme Court Justice Potter Steward to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case they were determining was not obscene, he said:
“I shall not today attempt further to define the kinds of material I understand to be embraced within pornography, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that”. In light of this, he thus considered it protected speech that could not be censored. The film in question was Louis Malle’s The Lovers.
This week, the Member of Parliament for Garissa Township, Hon. Aden Duale proposed a Bill that will make it illegal to possess or publish pornography, to download, distribute, circulate, sell or make it available in any way from a telecommunications apparatus or other data storage device. The Bill also seeks to block access to pornographic websites by all persons within Kenya. If approved, failure to comply will expose one to the risk of KES 20 million fine or a 25 year jail term or both.
Undoubtedly, the Bill is an attempt to legislate morality. Regulation of morality vacillates in context, but traditional understanding of morality is often inextricable from a society’s perception of normality. For instance, women walking topless in some parts of this country is considered normal in their context, while in other contexts this would be considered an obscene act.
It is perfectly acceptable from a public health point of view, that proscriptions against public exposure of genitals and buttocks is justifiable to an extent because of the risk of transmitting diseases. However, seeking to criminalize nudity, is attempting to do so under morality statutes, and it is impossible to legislate against morals.
Hence, to draw the line on what is pornographic or not is a matter of opinion. And everybody has an opinion. All too often, a society’s opinions about nudity shifts depending on the time, place, person and purpose of nudity. In context, a naked human form may represent or communicate different things to different people such as insanity, immorality, sex, or even spirituality. Hence a viewer’s perception of nudity may differ from a nude individual’s intentions.
Begs the question, like Justice Steward, can Duale define pornography or he would only know it when he sees it?
The nature of man is to dominate. And when you give him unchecked power, he exercises it for hegemony. He desires to ban everything that does not align with his opinion. In Statecraft, this usually means calls for regulation, criminalization or prohibition. Those in power decide to make their opinions dominant through legislation. And the list is endless ranging from legalizing marijuana, sexual orientation and polygamous relationships.
I submit that pornography is bad. But criminalizing it is worse. When you outlaw supply, you do not eliminate the demand. Instead, it only serves to criminalize otherwise law-abiding people by turning them into criminals overnight once the Bill is passed. A fine of KES 20 million or a 25 year jail term or both is over punishment and over criminalization considering that we have more serious crimes committed daily, such as the daily embezzlement of KES 2 billion. Overcriminalization is in itself pernicious. Many people caught in the act will not be able to pay this fine. This will result in congestion in the prison facilities which are already overcrowded.
Criminalizing pornography will only serve to create opportunities to gain control of the business and take advantage of the economic opportunities of the trade. Once the Bill is enacted, the sale, distribution and consumption of pornography will be done in the shadows, because of the risk of the fine it will attract. An increase in a risk increases the potential returns. In economic-speak, this is known as the risk-return tradeoff.
Owing to the principles of supply and demand, prohibition will curtail supply which will drive the price of pornography up. And in this climate of huge unemployment, the high prices will attract even those that would not have under ordinary circumstances, contemplated involvement in the trade. Resultantly, rather than legalizing morals to create puritans, prohibition will only serve as a catalyst to entice more people into the industry. Crime will also increase as it will not be easy to abandon the lucrative business. Those seeking to control the trade will do whatever it takes to continue profiteering.
There will also be a misallocation of resources. Any law that very few people agree with, requires massive resources to enforce. Should this Bill be enacted, the number of law enforcement officers will remain static. The number of people likely to engage in pornography will far outstrip the number of the enforcers. And while they will be busy policing those producing and consuming pornography, they will be stretched too thin to attend to other ongoing acts of crime which equally require their attention. And the spiral of crimes will continue unabated.
If we must criminalize pornography, it ought to be situated in the do no harm principle. This holds that the actions of individuals should only be limited to prevent harm to other individuals, and that the freedom of someone to swing their fist, ends where your nose begins. The disapproval by those in power, of what in their opinion constitutes pornography, is not enough to justify overboard intervention by the State.
To be sure, pornography is an unhealthy habit. And while it is recommended to avoid it at all costs, this ought to be a decision for an individual to make, and not within the purview of their parliamentary representative.
Finally, my unsolicited advice is to Duale. Prohibiting pornography is like eating a pint of ice cream at midnight. You know you should not be doing it, but that is what makes it taste so good. Likewise, as well intentioned as your Bill may be, it is judicious to remember that the proclivity of passing laws that attempt to regulate what in your opinion is unsavory individual behavior, is similar to seeking a cure that is worse than the problem.
Vices are not crimes – Lysander Spooner.