Is porn industry regulation a freedom of expression issue?

Nude girl lounging in a box full of rabbit fur

Fiona Snyckers wrote an interesting post for Thought Leader titled “Regulation of the porn industry is not a free speech issue“. Her basic premise is that the porn, or adult entertainment, industry is primarily a commercial endeavour and content the content the industry produces is not protected as “free speech”. Leaving aside whether its desirable to have this sort of adult content available on TV and, by extension, the Web and other media (that is a different debate which I’m not going to explore in this post), Snyckers tries to make an interesting point, albeit on a flawed premise.

In most western-style democracies, pornography does not enjoy the protection of the freedom of speech laws. This is because it is classified as a form of commercial expression, rather than artistic or ideological expression. Have you never wondered, for example, why the advertising industry is subject to such stringent laws? It even has its own control board — the Advertising Standards Authority of South Africa. Advertisers are not permitted to do a whole bunch of things, including explicitly compare their own brand with someone else’s, offend the public’s religious or moral sensibilities, or post billboards of naked people. The list of things they’re not allowed to do is a very long one indeed.

So how come the government is allowed to restrict the advertisers’ freedom of expression in this way? And why does nobody ever protest about it?

It all has to do with the fact that advertising is regarded as a form of commercial, rather than artistic expression. The advertisers are not trying to bare their artistic souls to us — they are trying to sell products. And because selling products is an entirely commercial enterprise, laws have evolved to regulate it.

Snyckers’ first assumption is that commercial expression is not protected under our Bill of Rights. This is not necessarily correct. The right to freedom of expression states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion,

and that constitutes incitement to cause harm.

The right does not limit its application to commercial forms of expression. The Bill of Rights applies to both natural persons (humans) as well as juristic persons (such as companies) “taking into account the nature of the right and the nature of any duty imposed by the right”. It is entirely plausible that commercial expression could be protected under this right and we have seen this in cases like Print Media South Africa and Another v Minister of Home Affairs and Another which dealt with an amendment to the Films and Publications Act which established criteria for ratings for sexual and other content. This case centred on whether the amendment violated the right to freedom of expression in the context of adult content (Also take a look at Pierre De Vos’ post titled “On freedom of expression and censorship of magazines” in which he considered this case):

In essence, the contention of the applicants is that the challenged provisions are unconstitutional mainly because the said provisions are a limitation of the entrenched constitutional right to freedom of expression.

Another flawed assumption in Snyckers’ post is that the fact that commercial expression, such as advertising, is regulated is confirmation that commercial expression is not protected. This is not the case at all. The rights in the Bill of Rights are not absolute. The right to freedom of expression is, like the other rights, subject to limitation on certain grounds. This particular right has a number of limitations detailed in section 16 itself (sub-section 2) and is also subject to a general limitations clause which allows for national legislation, for example, to limit a right. Rights are also limited by Courts when they compete with other rights. In defamation cases, for example, Courts often weigh up one party’s right to freedom of expression against another party’s rights to dignity and privacy and attempt to strike a balance between these competing rights.

When it comes to the porn industry, the test a Court applies probably won’t be whether the enterprise is a commercial one and, therefore undeserving of protection under the right to freedom of expression, but rather whether the enterprise, in exercising its right to freedom of expression, infringes on other people’s rights and whether the enterprise’s ability to exercise its right to freedom of expression should be limited?

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