Pornography as Sex Discrimination? A Critical Reflection on the Constitutional Court’s Interpretation of Gender Politics, Differentiation and (Unfair) Discrimination

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Letetia van der Poll
• Pages: 381-413
• Citation: (2010) 21 Stell LR 381
• Published date: 16 August 2019

381

PORNOGRAPHY AS SEX DISCRIMINATION?

A CRITICAL REFLECTION ON THE

CONSTITUTIONAL COURT’S INTERPRETATION

OF GENDER POLITICS, DIFFERENTIATION

AND (UNFAIR) DISCRIMINATION

Letetia van der Poll

BA LLB LLM LLD

Associate Professor, University of the Western Cape

“What do you want to be when you grow up? Doggie Girl? Gestapo Sex Slave? Black Bitch in

Bondage? Pet, bunny, beaver?”1

“If [pornography] were being done to human beings, it would be reckoned an atrocity. It is being done

to women. It is reckoned fun, pleasure, entertainment, sex …”.2

“In pornography [there are], in one place, all the abuses that women had to struggle so long to even

begin to articulate … the rape, the battery, the sexual harassment, the prostitution, and the sexual abuse

of children. Only in pornography it is called something else: sex, sex, sex, sex, and sex, respectively.”3

1 Introduction

The advent of a constitutiona l democracy in South Africa after the rst

non-racial democratic elections in 1994 and the subsequent adoption of a nal

constitution in 19964 introduced a legal order based on “democratic values,

social justice and fundamental rights”.5 The rst par agraph of the Preamble

to the Interim Constitution6 expressed the “need to create a new order …

in a sovereign and democratic constitutional state in which there is equality

between men and women and people of all races that all citizens shall be

1 Dworkin “Against the Male Flood: Censorship, Pornography, and Equality” in Smith (ed) Femini st

Jurisprudence (1993) 449 455

2 Dworkin “Against t he Male Flood: Censorsh ip, Pornography, and Equal ity” 1985 Harvard Women’s LJ

1 11 Se e also Dworkin “Against the Mal e Flood: Censorship, Porn ography, and Equality” i n Itzin (ed)

Pornograph y: Women, Violence and Civil Li berties (1992) 515 523

3 MacKinno n “Francis Biddle’s Sister: Pornog raphy, Civil Rights, and Spee ch” in MacKinnon Fem inism

Unmodifie d: Discourse on Life and Law (1987) 163 171 See also MacKinnon “Fr ancis Biddle’s Sister:

Pornography, Civi l Rights, and Spee ch” 1985 Harvard Civil Right s – Civil Liberti es Law Review 1 16-17;

Itzin (ed) Pornog raphy 456 461

4 The text of the Con stitution of the Republic of South A frica, 1996 was adopted by th e Constitutional

Assembly on May 8, 1996 and certified by the Constitutional Court in In re: Certification of the

Constitut ion of the Republic of South Afr ica, 1996 1996 10 BCLR 1253 (CC) and Certification o f the

Amended Text of the Fi nal Constitu tion 1997 1 BCLR 1 (CC) It ent ered into force on Febr uary 4, 1997 a nd

is hereinaf ter referred to as th e Constitution; to be d istinguished f rom The Constitut ion of the Republic

of South Afric a, Act 200 of 1993 (“the Inte rim Constitut ion”)

5 See the Pream ble to the Constitut ion

6 The Interi m Constitut ion – which wa s the result of a leng thy and diff icult process of negot iation – e ntered

into force on Apr il 27, 1994

(2010) 21 Stell LR 381

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able to exercise their fundamental rights and freedoms”.7 The basic features

of, and constitutional ideals expressed in, both these constitutions signal a

radical and fundamental departure from, inter alia, a r acially-qualied,

sexist constitutional order and an oppressive system of censorship intended

to impose the Calvin ist Puritanism and political ideology of the r uling (white)

minority on an e ntire society. Few would contest that the former constitutional

order and its system of statutory censorship8 was hardly conceived in a spirit

of liberty and democracy, or argue that it was premised upon a desire to

promote equality bet ween men and women.9

Consequent upon the inception of a constitutional democracy, courts are

called upon to interpret and enforce the Constitution and Bill of Rights10 as

the supreme law of the Republic.11 The Constitution itself describes the Bill

of Rights as a “cornerstone of democracy in South Africa,”12 a phrase which

has on occasion been interpreted to mean that the rights contained therein

are placed beyond the inuenc e of, a nd are accordingly not dependent on,

the political and electoral process.13 Within this context, a host of rights

and freedoms have been entrenched in the Bill of Rights as potentially

complementing and competing f undamental constitutional claim s.14

The recognition of freedom of expression as a basic right in section

16 of the Constitution15 is a case in point. In acknowledgement of the role

7 Emphasis adde d A similar reference t o gender equality h as, however, been excluded fro m the Preamble

to the Constit ution Th e Interim Con stitution i ncorporat ed – in spit e of its transito ry status – both the ide a

of constitut ionalism (which seeks to li mit the power of governmen t) and the principles of const itutional

supremacy a nd justiciability On t he significanc e of this, see n 11

8 See, for example, the Indecent or Obscene Photographic Matter Act 37 of 1967; the Sexual Offences

Act 23 of 1957; the Liquor Act 27 of 1989; and the now repe aled Publications Act 42 of 1974 These

statutory measures prohibited the possession of indecent or obscene photographic matter, certain

forms of expression in public (such as striptease dancing and sex-related public entertainment) and

“undesir able” material if deemed to be i ndecent or obscene or harm ful or offensive to public morals

The constitutionality of s 2(1) of the Indecent or Obscene Photographic Matter Act was successfully

challenged un der ss 13 and 15 of the I nterim Constitution which entren ched the rights to privacy a nd

freedom of speech and expression respectively: see Case v Minister of Safety and Security; Curtis v

Minister of Safe ty and Securit y 1996 5 BCLR 609 (CC) For a critical discus sion of the judgment, see 4

and the accomp anying footnote s below

9 S 1 of the Constit ution expressly stipu lates:

“The Republ ic of South Africa is one, sovereig n, democratic state fou nded on the following values:

(a) Human dignity, the a chievement of equality a nd the advancement of huma n rights and freedom s

(b) Non-raciali sm and non-sexism (c) Suprema cy of the constitut ion and the rule of law (d) Universal

adult suff rage, a national co mmon voters roll, re gular election s and a multi-par ty system of democ ratic

government , to ensure accou ntability, respon siveness and openne ss”

10The Bill of Righ ts, set out in Chapte r Two of the Constitution, ap plies to all law and bin ds the legislatu re,

executive, judici ary and all organ s of state: see, in par ticular, s 8(1)

11The prin ciple of constitut ional suprema cy means that Pa rliament is sub ject in all resp ects to the prov isions

of the Constit ution and that Parl iament has only th e powers vested in it by t he Constitutio n: see Executive

Council of the Weste rn Cape Legisla ture v President of t he Republic of South A frica 1995 10 BCLR 1289

(CC) 1317-1318 The s upremacy of the Con stitution is rec ognized in s 2 wh ich forms part of t he Founding

Provisions

12S 7(1) of the Constitution

13S v Makwanya ne 1995 6 BCLR 665 (CC) para 89, citing with ap proval Jackson J in West Virgini a State

Board of Educa tion v Barnette319 US 624 (1943) 638:

“One’s right to life, liber ty, and propert y, to free speech, a f ree press, fr eedom of worship and a ssembly

and other fu ndamenta l rights may not be s ubmitted to vo te; they depend on t he outcome of no elect ions”

14The Bill of Rig hts has both direc t vertical and hori zontal application : see, in particu lar, s 8(1) and s 8(2),

respectively S 8(3) grant s power to South Afr ican courts to re medy such infr ingements

15S 15 of the Interi m Constitution

382STELL LR 2010 3

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that free expression plays in the process of building a democratic social,

political and legal order based on fundamental human rights, freedom of

expression is believed to be the basis of many, if not all, human rights.16 Yet

no constitutional rig ht is absolute and boundaries a re set by competing rights

of individuals and legitimate state interests.17 Therefore, it is commonplace

in all legal systems that, although the boundaries of free expression may

vary from one society to another and from one area of expression to another,

the right to freedom of expression is not absolute.18 In the case of the South

Africa, section 16 also contains internal restrictions, modeled on articles 19

and 20 of the International Covenant on Civil and Political Rights,19 which

proscribe “propaganda for war,”20 “incitement of imminent violence”21 or t he

“advocacy of hatred that is based on r ace, ethnicity, gender or religion and that

constitutes incite ment to cause harm”.22

Under t he strong inue nce of the United States First A mendment

doctrine,23 sexually explicit material is popularly dened (and protected in

the “marketplace of ideas”)24 as a particular mode of speech and expression,

thus allowing such mater ial to be viewed as part of the fabric of an open, free

and democratic society. The values which free expression is typically seen to

underpin in an open and democratic society centre upon the encouragement

16Comparat ive jurisprude nce widely support s this view See, for example, Mandela v Falati 1994 4 BCLR

1 (W) 8 per Van Schal kwyk J (“In a free societ y all freedoms are impo rtant, but they are not equ ally

important Political philosophers are agreed about the primacy of the freedom of speech ”); India

Express Newspaper (Bombay) (Pty) Ltd v Union of India 1985 2 SCR 287 320 (“Indeed, freedom of

expression is th e first condition of libe rty It oc cupies a preferred position i n the hierarchy of liber ties

giving succour and protection to other liberties ”); Palko v Connecticut302 US 319 327 (“[Freedom

of speech is] the mat rix, the indispensa ble condition of nearly every othe r form of freedom ”); Retail,

Wholesale an d Department Sto re Union, Local 580 v Dolphi n Delivery Limited [1987] 33 DLR (4th) 174

183 (“Representat ive democracy … is in g reat part the pro duct of free expressio n” )

17See, in gene ral, Erasmus “Lim itation and Suspen sion” in Van Wyk, Dugard, De Vil liers & Davis Rights

and Constit utionalism: The Ne w South African Le gal Order (1996) 629 639

18See, for example, I slamic Unity Convent ion v Independent Br oadcasting Author ity 2002 4 SA 294 (CC)

para 32; Van der Westhuize n “Freedom of Expres sion” in Van Wyk et al Rights and C onstitutio nalism 264

272-273

19GA Res 21/2200A GAOR 21st Session Supp 52 UN Doc A /6316 999 UNTS 171 Ar t 3 protects the ri ght to

freedom of expr ession subject to p ermissible li mitations to p rotect the rig hts or reputat ions of others or for

the protect ion of national secur ity and public order A rt 20 contains ma ndatory lim itations to free dom of

expression by req uiring stat es to outlaw propagan da for war and hate spe ech See also, in gene ral, Curri e

& De Waal “Expressio n” in Currie & De Waal T he Bill of Rights Handboo k 5 ed (2005) 359 359

20See s 16(2)(a) of the Constitution

21See s 16(2)(b) of the Constit ution

22See s 16(2)(c) of the Constitution

23The First Ame ndment to the Constitu tion of the United States (which wa s added to the Constit ution in

1791) r ead s:

“Congres s shall make no law respect ing an establishme nt of religion, or promoting th e free exercise

thereof; or abr idging the freedom of spee ch, or of the press; or the righ t of the people peaceably to

assemble, and to p etition the Govern ment for a redress of g rievances ” (Empha sis added)

24The “quest for the t ruth” or “marketpl ace of ideas” paradig m has been present ed to explain the ratio nale

behind the wide recognit ion of freedom of expression as a fu ndamental right It has to a large exte nt

emanated from Mill’s On Liberty (first published in 1851) and forms the basis of United States First

Amendment ju risprudence Mill sug gested that society is mos t likely to discover the tr uth, not only in

science, but abou t the best condition s for human advanc ement as well, if it tolera tes a free market place of

ideas Thi s sentiment is echoe d by Brandeis J in Wh itney v The Stat e of California 274 US 357 (1927) 377

who argued th at the appropriat e remedy for the har ms produced by speec h is “more speech, not en forced

sile nce”

PORNOGRAPHY AS SEX DISCRIMINATION 383

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