Pornography as Sex Discrimination? A Critical Reflection on the Constitutional Court’s Interpretation of Gender Politics, Differentiation and (Unfair) Discrimination
| Jurisdiction | South Africa |
| Author | Letetia van der Poll |
| Pages | 381-413 |
| Date | 16 August 2019 |
| 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 int roduced a legal order based on “democrat ic values,
social justice and fu ndamental rights”.5 The rst par agraph of the Preamble
to the Interim C onstitution6 expresse d the “need to create a new order …
in a sovereign and democratic con stitutional state i n which there is equality
between men and wo men and people of all races that all cit izens shall be
1 Dworkin “Against t he Male Flood: Ce nsorship, Por nography, and Equ ality” in Sm ith (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 an d certif ied by the Const itutional C ourt in In re: Ce rtifica tion 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 funda mental rights and f reedoms”.7 The basic features
of, and constitutional ideals expr essed in, both these c onstitutions signal a
radical and fu ndamental depar ture f rom, inter alia, a r acially-qualied,
sexist constitutional orde r and an oppressive system of censorsh ip 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 statut ory censorship8 was h ardly conceived in a spirit
of liberty and democ racy, or argue that it was premise d upon a desire to
promote equality bet ween men and women.9
Consequent upon the ince ption of a constitutional democr acy, courts are
called upon to inter pret and enforce the Constit ution and Bill of Rights10 as
the supreme law of the Republic.11 The Constitut ion itself describes the Bill
of Rights as a “cornerstone of democr acy in South Afr ica,”12 a phrase which
has on occasion been inter preted to mean th at the rights contai ned therein
are placed beyond the inuenc e of, a nd are accordingly not dependent on,
the political and electoral proces s.13 Within this context, a host of rights
and freedoms have been ent renched in the Bill of Rights as p otentially
complementing and competing f undamental constitutional claim s.14
The recognition of free dom of expression as a basic right in section
16 of the Constitution15 is a case in point. In ack nowledgement 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, t he Indecent or Ob scene Photogr aphic Matte r Act 37 of 1967; the Sexual Offence s
Act 23 of 1957; the Liquor Act 27 of 1989; and the now repe aled Publications Act 42 of 1974 These
statutor y measure s prohibited th e possession of ind ecent or obscen e photograph ic matter, cer tain
forms of expres sion in public (such as st riptease d ancing and se x-related public ent ertain ment) and
“undesir able” material if deemed to be i ndecent or obscene or harm ful or offensive to public morals
The constit utionalit y of s 2(1) of th e Indecent or Ob scene Photogr aphic Matte r Act was successf ully
challenged un der ss 13 and 15 of the I nterim Constituti on which entren ched the rights to privacy a nd
freedom of spe ech and expres sion respect ively: see Case v Minis ter of Safet y and Securi ty; 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”
10 The 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)
11 The 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
12 S 7(1) of the Constitution
13 S 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 Barnette 319 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”
14 The 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
15 S 15 of the Interi m Constitution
382 STELL LR 2010 3
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that free expression plays in the pro cess of building a democratic socia l,
political and legal order based on fu ndamental huma n rights, free dom of
expression is believed to be the basis of many, if not all, human right s.16 Yet
no constitutional rig ht is absolute and boundaries a re set by competing rights
of individuals and legitimat e state interests.17 T herefore, it is commonplace
in all legal systems that, a lthough the boundar ies of free expression may
vary from one societ y to another and from one a rea of expression to another,
the right to freedom of expre ssion is not absolute.18 In the case of the South
Africa, sect ion 16 also contains internal restr ictions, modeled on art icles 19
and 20 of the Internationa l 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 inue nce of the United States First A mendment
doctrine,23 sexually explicit material is popularly dened (and protected in
the “marketplace of ideas”)24 as a par ticular mode of speech and exp ression,
thus allowing such mater ial to be viewed as part of the fabric of an open, free
and democratic society. The values which fr ee expression is typically seen t o
underpin in a n open and democratic so ciety centre upon the enc ouragement
16 Comparat 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
importa nt Politica l philosopher s are agree d about the pri macy of the fre edom of speech ”); India
Express New spaper (Bomb ay) (Pty) Ltd v Union of I ndia 1985 2 SCR 287 320 (“Indee d, 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 succo ur and protec tion to other l iberties ”); Palko v Connect icut 302 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” )
17 See, 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
18 See, 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
19 GA 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
20 See s 16(2)(a) of the Constitution
21 See s 16(2)(b) of the Constit ution
22 See s 16(2)(c) of the Constitution
23 The 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)
24 The “quest for the t ruth” or “marketpl ace of ideas” paradig m has been present ed to explain the ratio nale
behind the w ide recognit ion of freedom of expression as a fu ndamental right It has to a large exte nt
emanated f rom Mill’s On Liberty (first publishe d in 1851) and forms the basis of Unite d States Firs t
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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