Article 10: Getting The Dirt

In the wake of last week's ruling by a Tokyo court that a manga book violates Japanese obscenity law, Paul O'Brien looks at what obscenity really means, and asks whether laws like this are something we should be worried about.
19 January 2004

Obscenity. Always good for a laugh.

Two recent stories in particular have brought attention back to this perennial issue. First of all, the good folk of Michigan have enacted a new law which makes it a crime to allow a minor to examine a book that is "harmful to minors." The Comic Book Legal Defense Fund has joined the bookstores in their fight to get rid of it.

Meanwhile, over in Japan, the Tokyo District Court has ruled that the pornographic manga MITSUSHITSU ("Honey Room") violates the Japanese criminal law on obscenity. MITSUSHITSU apparently features fairly violent porn on 80% of its pages.

Of course, on one view, it's easy to overstate the importance of these things. Clearly, the Michigan law is idiotic. In order to comply, book and comic retailers would have to make sure that they either had a separate section for adults - which would cover pretty much everything, and thus effectively exclude teenagers from bookstores altogether - or seal everything in plastic, which is at best a ludicrous waste of money and effort. But there's still the practical question of whether it's going to be enforced along such literal lines. When it comes to moralising drivel enacted by politicians, there's no guarantee anyone in government is really going to take it seriously.

Take, for example, Britain's own anti-comics legislation. The Children and Young Persons (Harmful Publications) Act 1955 was enacted to deal with the scourge of American horror comics. The 1955 Act made it illegal to print, publish or sell:

"any book, magazine or other like work which is of a kind likely to fall into the hands of children or young persons and consists wholly or mainly of stories told in pictures (with or without the addition of written matter), being stories portraying

(a) the commission of crimes; or
(b) acts of violence or cruelty; or
(c) incidents of a repulsive or horrible nature;

in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall."

When the Act was passed, the Solicitor-General said that it was designed to prevent "the state of mind that might be induced in certain types of children by provoking a kind of morbid brooding or ghoulishness or mental ill-health." This sounds suspiciously like pre-emptive anti-goth legislation, so you'd think Vertigo would be shaking in their shoes.

However, despite being on the statute book for almost half a century, the 1955 Act has seen no prosecutions whatsoever. It's a paper tiger. Equally, it seems unlikely that Michigan's prosecutors are seriously planning to arrest booksellers for allowing fourteen-year-olds to flick through a copy of SANDMAN. As for Japan, most of us were probably surprised to learn that there even was an obscenity law in the land of the rapist tentacle. The fact that there have been one or two prosecutions in several decades still points more to an "anything goes" tendency, with the MITSUSHITSU case looking more like an anomaly.

But just because it isn't being used, it doesn't follow that a bad law is nothing to worry about. After all, future governments might not be so sensible. And there's always the possibility of rogue local prosecutors with strange ideas of their own. Governments are understandably keen on enacting sweeping legislation and asking us to trust to their discretion in how it's exercised. This is fine if you have faith in the wisdom and honesty of politicians, but for the other 99% of us, it's not an entirely comfortable set-up.

That said, laws in this area are very difficult indeed to draft - primarily because nobody's even entirely sure what obscenity means. One of the basic ideas of the law is that everyone should at least know where they stand. For that reason, it is highly unsatisfactory to draft laws in terms such as "obscene" or "indecent", which are ultimately subjective. Many legal systems try to square this circle by bringing in concepts such as "community standards". These are intellectually clever attempts to be simultaneously subjective and objective by at least appealing to common consensus. But while jurisprudentially somewhat satisfying, these tests all too often leave litigants at the mercy of the opinions of the particular judge and jury on the day. Miraculously, their own opinions have an incredible habit of turning out to mirror the community standards.

Besides which, the more diverse and atomised a society becomes, the harder it is to even identify a single community standard, whether or not you agree with it.

The UK legal system has always drawn a distinction between indecency and obscenity. Obscene material is actually harmful to the viewer. Indecent material is merely so offensive that people should be able to avoid it. Thus, it's illegal to display indecent material in a way where people can just stumble upon it, but as long as the audience is clearly warned in advance, that's their problem. And the obscenity offences target publishers rather than readers - child pornography aside, it's not actually illegal to buy or possess hardcore pornography in the UK, even if it's illegal to import, publish or sell it.

With a degree of charity, it's possible to see some logic in this as a matter of principle. But it all comes back to the same problems in the end - how can you tell whether any given work is indecent or obscene? Indecency appeals to a nebulous and increasingly empty concept of shared community values. Obscenity is premised on the assumption that certain works are "harmful" - and when the legitimacy, let alone scope, of that concept is seriously debatable, it leaves us none the wiser as to what the hell it actually means. British courts have got themselves tied up into all sorts of conceptual knots in an attempt to make sense of the rules and come up with sane results.

The Japanese appear to have got themselves tied up into similar knots. Their Supreme Court considered the whole issue of obscenity in 1957, in a case involving Sei Ito's translation of LADY CHATTERLEY'S LOVER. They apparently came up with a three stage test for obscenity: sexual stimulation, damage to "the appropriate sexual sense of shame of the people", and contrariness to "good sexual and moral principles."

Granted, these are translations, and it's always dangerous to read too much into non-specialist translations of court decisions. Supreme courts tend to pick their words with care. Still, assuming that the three stages are cumulative, the reference to "sexual stimulation" isn't as silly as it first appears. It just establishes the ground rule that the concept of obscenity is connected to eroticism (and thus a pamphlet campaigning for sexual freedom would not be subject to prosecution). The remaining two concepts are borderline meaningless without further explanation, since unless you know what is "appropriate" and "good", you can't even begin to judge whether you're damaging it.

Reading between the lines, I sense an appeal to shared community values. MITSUSHITSU is apparently not too far outside the norm for Japanese porn. Since it was sold sealed in plastic, it's hard to imagine that too many people stumbled upon it without knowing what was inside. Given the legendary prevalence of hardcore pornography (often of a fairly misogynist sort) in Japanese comics, one might infer that whatever Japanese community values may be, they're clearly fairly tolerant of this sort of thing.

And, of course, a quite separate argument arises as to whether or not material like this is in fact harmful to anyone - and, if so, whether it is harmful to such a degree as to justify restricting freedom of speech. Or, viewed another way, for so long as the question of harmfulness is still open to debate, to what extent can restriction of obscene material be justified on a "better safe than sorry" principle?

But, as interesting as those issues may be, the practical reality is that no country is likely to abolish its obscenity laws outright. Retailers and publishers will always, to some extent, be faced with the question of how these concepts are to be defined - if they can be defined meaningfully at all.

Paul O'Brien is the author of the weekly X-AXIS comics review.

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