The right to obscene thoughts
University College London, January 2009
Ourselves and others: two levels of respect
Seeing others as similar versions of ourselves is a powerful antidote to cruelty and the unjust treatment of others. I believe this insight allows for the so-called ‘principle of reciprocity’ at the heart of many religions, saying: you should not act towards another in a way that you would not want them to act towards you. I think it follows that each person is equal as a human being – which fact we must respect but it also need not follow that we are bound to respect or like or agree with what others think, or I believe, act (at least as long as that act is consistent with respecting others as equals).
Much of this, I believe, follows from recognising faults in ourselves. We see ourselves independently from our faults, and we demand respect for that independent self. And we see that other people, like us, have faults; yet we still respect them, for their independent selves, in the same way we expect that for ourselves.
The irrelevance of coercion
If we have to respect people as our equals, but do not have to respect their thoughts or actions, what may be done about at least the thoughts of others? There can be no place for coercion here. When it comes to forcing people out of their thoughts, by punishment, or by coercive manipulation by heavy-handed regulation, an extremely significant line is crossed. To force a person not to have particular thoughts violates their right to the equality of respect that is due for their innate capability to think their own thoughts for themselves. Explaining, persuading, correcting and educating are quite different from conditioning a person, or forcing or coercing or punishing them, to make them change their behaviour. I cannot believe, or endorse, or be committed to, those thoughts that are thrust by force on me. To correct a mistaken thought instead requires understanding from within why it is mistaken. Take the aversion therapy that Alex underwent in the film A Clockwork Orange. Ghastly as Alex was, as soon as we saw what was done to him, we saw a great deal about what was wrong with the way his thoughts were changed. We saw it happen with Winston Smith in George Orwell’s novel 1984. And what is important about these two examples is that we can see the danger in taking a person’s thoughts away, and replacing them with something else. (And, as an aside, contemplate this: if your thoughts are not your own, then whose thoughts are they? The connection between the control of thoughts, and the endless possibilities of political manipulation are close, a fact brought out well in A Clockwork Orange).
So while we may explain, persuade, correct and educate, to make a person see, what we believe to be sense, we must stop short of taking that person’s judgement away from them. We cannot take away someone’s right to think whatever they like. I think it is in this context of deep respect for a person’s being human that we should see why it seems so odd to say that any person would have a right not to be insulted or offended by another’s thoughts.
The right to obscene thoughts
I therefore conclude that each human being has the fundamental right to have bad thoughts. I need, however, to make it clear what I’m saying. I think people have a right to their thoughts, however bad they are. I don’t mean by that, that we ought to respect the right to bad thoughts only because we might make a mistake as to whether those thoughts are really bad. People once thought that a novel such as Lady Chatterley’s Lover couldn’t be obscene because it was a work of art, and the issue in the Lady Chatterley court case in the early sixties was on that precise point. I think that is mistaken thinking. A person does not have a right to obscene thoughts merely because it might turn out to have artistic merit and so we might accidentally prevent a D.H. Lawrence, or a James Joyce, or a Shakespeare from engaging in a beneficial artistic project. It is, rather, that he or she has that right because those thoughts are their own, and this has, as I’ve argued, nothing at all to do with content. I think it was failure to appreciate this point that was lost in the not so much later trial of the obscene magazine, Oz. There wasn’t artistic merit there; no one could claim that. The point was that it was genuinely obscene. In fact, it was Oz’s obscenity that made it so very funny.
Thoughts are not fundamentally distinguishable from actions
You might agree so far, but believe that when thoughts become actions things change dramatically. But the distinction between thoughts and actions is not sufficiently clear to do much for us. It suggests perhaps because of Descartes a mental life inside one’s mind and a physical counterpart outside. But this does not help. We can read another’s thoughts, in many cases easily, from a facial gesture (or omission), a raised eyebrow, a shrug, or a failure to put out a hand. In fact, to say it like that – to read another’s thoughts – shows something less than an ordinary inference from action to thought is going on. The thought, instead, confronts you directly. Po-faced silence to the anguished question ‘does my bottom look too big in these jeans?’ is as much a statement that it looks huge, as the uttered ‘it looks huge!’
That interflow between thoughts and their expression is, I think, important to bear in mind in considering suppression of thoughts. Suppressing expressions on faces, suppressing expressions of opinion, are all suppressions of ways of thinking. And of course it is nonsense to think of human beings as independent atoms unconnected with others. It is part of being human, of being part of a community, to exchange ideas, to talk, to express, and, in short, to live with others with natural intimacy. It is unhelpful to regard the thoughts of any person so personal that they cannot ever be expressed; the attitude that what people think not only cannot but mustn’t be part of common interaction and association invites the silly idea that people have a right not to be hurt, or offended, as silly an idea that people have no right to hear what is true, or interesting or humorous.
The offence of possessing extreme pornography
The new criminal offence of possessing extreme pornography violates all these principles. It means obscenity depicted with violence. ‘Obscenity’ used to be confined, at least in popular speech, to sexual thoughts and expression; but now it popularly refers to violence. And of course it is true that the actually carrying out of the sexually perverse and violent can be pretty bad, in cases, about as bad as it can get. It is all imagined in 120 Days in Sodom by the Marquis de Sade, and in Brett Easton’s American Psycho, and parts put into films by producers such as Quintin Tarantino. But now you can make your own images of these things on your computer. If you have an image of such horror, including such things as knifing and worse, and it was produced for sexual arousal, then you have committed the new offence of possessing extreme pornography.
Let us say you are sexually aroused by the thought of a sado-masochistic sex. You doodle, with PhotoShop and create a computer-generated image on your laptop, or perhaps, shortly, on your e-book, altering, stretching, adding different photos, and you produce a ghastly picture, as ghastly as you can make it. Because it is done with real images, disguised and altered, it looks real, which is one of the tests of the legislation. You are now liable to three years imprisonment under s.63 of the Criminal Justice and Immigration Act 2008. There is no need for proof of the risk of harm to anyone. Merely to possess this extreme pornographic image – an image that represents your fantasies – constitutes the offence.
It is difficult to see a significant difference between having this thought and computer-generating it in what basically amounts to a sexual daydream.Â I believe it is pedantic to argue that the offence lies only in the fact of possession, and not the thought.
In any case, is constructing an image on Photoshop to be sexually aroused so bad a thing? Our sexual thoughts are private, perhaps the most private many of us have. Our sexual interests, thoughts, desires, fantasies are ours alone to know, and even then they can be inchoate, mad, odd, eccentric, in short, everything that all our ideas can be, without harm to others. No-one really should think that there is a norm of sexually appropriate behaviour (short of harm) that it is in the public interest to prohibit. Much of sexual thought is fantasy just that and, where no harm results, what is the bother that people have?
So what is the proper reason for this offence? It is not clear from its wording, and the offence will remain for decades, since no politician will have the courage to stand up in Parliament to say it should be abolished. They would immediately, and cheaply, be accused of being in favour of nasty pornography. As indeed I may be thought to be, for arguing that I don’t think there should be such an offence.
We can, of course, infer reasonable concern behind the legislation, in the possible harm to children.Â There are two ways this may be explained.Â First, the practical one of what is called ‘fishing’. The offence is created to enable police to ‘fishâ’ for potential paedophiles, or at any rate those with a disposition to cause harm to children. The fishing argument is one that can create a lot of injustice. You can see it from the policeman’s point of view; he will say, ‘whenever I arrest a someone for a suspected paedophilic offence, and go back to his flat, I will find an image of child pornography’. The logic of this is not right of course: whenever you arrest such a person you will find that there is a jar of coffee in his flat. To make the argument work, you need a statistical account that shows not just a significant conjunction between the commission of paedophiliac offences, and the possession of nasty paedophiliac images – because that argument works with jars of coffee. You also have to prove that people who don’t commit paedophiliac offences don’t possess such images: that is almost impossible to do because it means proving a negative. We will see in a moment, too, the tenuous nature of the evidence the Home Office adduced.
The other, second, way of explaining the offence is just that of direct harm. The rationale for the well-known offence of possessing indecent photographs of children was that it created a harmful market in such photographs, which were made using children. The odd thing about the offence of extreme pornography is, however, that neither of these reasons is directly invoked. In fact, the reasons the Home Office gives are not very clear. In an â€˜FAQâ€™ sheet on its website, the question is posed: â€˜why are you criminalising the people who access this material, rather those who produce it?â€™ The reply is just that those who produce extreme pornographic images mainly operate outside of the jurisdiction of English law, and are from Eastern Europe and the United States.
The difference with the doodle Iâ€™ve imagined is that the extreme pornography is self-generated, involving no other people, and involving no market.Â I am just daydreaming unpleasant thoughts.Â I donâ€™t see the harm in this to anyone.
The significant lack of evidence of significant harm caused by extreme pornography
The evidence of harm that the Home Office produced for introducing the offence of extreme pornography is contained in a report entitled a â€˜rapid evidence assessmentâ€™ and consists of a â€˜meta-analysisâ€™ summarising the findings of many studies, in this case, going back to the sixties.Â Here is their verbatim summary of the two main findings.Â It is pretty mild, and the research of the past two or three decades is fairly well known to be on the tenuous side, no doubt to the disappointment of some.Â It strengthens the mildness of the results of this research that it was the work of an all-women team of nine researchers centred between the Home Office, that time under Jackie Smith, and South Bank University (on the assumption that women would be more likely biased against pornography than men; an assumption that could of course be false).Â The research summary found that there was:
a.Â â€˜â€¦ the existence of some harmful effects from extreme pornography on some who access it.Â These included increased risk of developing pro-rape attitudes, belief and behaviours, and committing sexual offencesâ€™; and also that
b.Â â€˜Men who are predisposed to aggression, or have a history of sexual or other aggression were more susceptible to the influence of extreme pornographic material.â€™
At no point is the level of risk specified; indeed, the significance of the risk does not appear to be of the slightest concern to the researchers.
What sort of evidence is this?Â Everything we do carries â€˜some harmful effectsâ€™, and the Home Office was messing here with something so fundamental to our respect as our freedom to think what we like.Â Many activities we engage in raise the risk of some harmful â€˜behavioursâ€™ (that â€˜sâ€™ suggests much of the evidence comes from the United States) particularly in predisposed individuals.Â On the same ground, we should therefore make it an offence to â€˜possess extremely strong lagerâ€™ since, particularly by men who are â€˜predisposed to aggressionâ€™, can create the â€˜increased riskâ€™ of committing violent offences.Â Obviously we would need to make it an offence to possess a car.
The grave dangers of prurience
Why, then, was the possession of extreme pornography made criminal?Â It is clearly just prurience: most people find these sorts of thoughts disgusting.Â For that unexamined reason alone our Government introduced criminal prohibition.
But you may feel that there is something else about the possessing of extreme pornography – that the material of it can be just so horrible.Â All I can say to that is, many things are horrible, and one of them is the thoughts that some people have.Â But these thoughts are their own thoughts, and ones they produced themselves.Â If we really value what Iâ€™ve called the â€˜human sparkâ€™ we must genuinely value it; we canâ€™t pick and choose.Â We canâ€™t say that freedom is both a great thing, but not certain kinds of freedoms, especially, I think, when it is to form thoughts.
Banishing thoughts is the beginning of evil.Â It contains the essence of torture: the destruction of the human person by mocking and condemning their thoughts and who they are.Â Merely having thoughts is so very human that no thought is so bad that a person should be coerced into not having it.Â And the same goes for the expression of those thoughts.Â Coercion is only justified where the freedoms of others is significantly endangered; but short of those cases, it is not justified.Â I believe the principle, that freedom of thought and expression is fundamental to respect for humanity, is worryingly little understood, and too infrequently stated.
 The Protection of Children Act 1978 s.1 makes it an offence to possess â€˜indecent photographs â€¦ with a view to their being distributedâ€™.Â It is important to note the concept of â€˜pseudo-photographsâ€™ in this Act.