The constitutionality of pornography

[摘要] ENGLISH ABSTRACT:The advent of a constitutional democracy in South Africa after the first non-racial democraticelections in 1994 and the subsequent adoption of a final constitution in 1996 introduced a legalorder based on democratic values, social justice and fundamental rights. The inception of aconstitutional democracy in South African encourages an assessment of the possibleconstitutional ramifications of pornography, specifically within a discourse on women's interestsin equality, human dignity and physical integrity. Under the strong influence of United StatesFirst Amendment doctrine, pornography is defined (and protected in the marketplace of ideas)as a particular mode of expression, thus allowing pornography to be viewed as part of the fabricof an open, free and democratic society. Within this doctrinal context, the recognition andentrenchment of freedom of expression have firmly placed pornography on both the SouthAfrican constitutional and political agendas.The objective of this study is to address specific aspects of the debate on adult heterosexualpornography (that is, pornography produced for and targeted at the male heterosexual market) inorder to establish its constitutionality. This dissertation is not, however, intended as a discourseon pornography as a possible threat to the moral fibre of society, but rather about pornography asan invasion ofwomen's particular constitutional interests in equality, human dignity as well assecurity in and control over their bodies.To this end, Chapter 2 serves to establish a suitable theoretical framework that is capable offacilitating a woman-centred analysis of adult heterosexual pornography within the ambit of theBill of Rights in the South African Constitution. Consequently, the merit ofliberal feminism andradical feminist thought is critically assessed against the particular (constitutional and doctrinal)demands presented by a study of this nature. Chapter three - the first in a trilogy which seeks toevaluate the different conceptualisations of pornography in the United States, Canada and SouthAfrica - critically reflects on the obscenity jurisprudence of the Supreme Court of the UnitedStates of America as well as radical feminist campaigns in Minneapolis and Indianapolis to re-conceptualise pornography and its harm.Chapter 4 entails a critical reflection on the capacity of Canadian constitutional jurisprudence toaddress adult heterosexual pornography either as a patriarchal structure which impacts onwomen's interests in equality, dignity and physical integrity or as a mode of expression whichincites gender hatred.Chapter 5 traces the history of South African censorship law as prelude to a critical discussion ofthe current Films and Publications Act as well as the first decision of the South AfricanConstitutional Court on the possible human rights implications of sexually explicit material. Thechapter concludes with proposals for a suitable conception of the (constitutional) harm as well asa legal definition of adult heterosexual pornography for South African law.The constitutional implications of the proposed conceptions of pornography and harm areevaluated in Chapter 6 with specific reference to sections 9, 10 and 12 as well as subsection16(2)( c) of the South African Constitution. Chapter 7 concludes the present study with somethoughts on the suitability of censorship as legal and political strategy.

[发布机构] Stellenbosch University