음란물 규제의 예외성 및 불안정성

Abstract

The current obscenity regulation that potentially criminalizes allexplicit expressions of sexual activities is not sustainable under theclear and present danger doctrine of freedom of speech for thevery reason that the depicted sexual activities are legal, andtherefore that there is no harm that such expression threatens. Tocompensate this problem of punishing non-harmful speech, thejudiciaries of many countries have tried to narrow the scope of theregulation by exempting works that have “any intellectual or artisticvalue”. The author argues that such attempt is bound to fail becausediscussions of obscenity of obvious “intellectual value” mustinclude within it the materials being tested for obscenity. Obscenityregulation punishes “showing” of non-harmful human actions. Thereis no harm to anchor all criminal legal inquiries on. Murder entailsa specific harm, i.e., termination of a life, around which all legalquestions are anchored by: “Who has actually done the act thatterminated the victim’s life?” There is no such thing in obscenityregulation and therefore, one must “see it” to “know it” as JusticeStewart has claimed. Obviously, the judiciary can simply ignore theproblem by declaring all such discussions of obscenity non-obscenebut will be under much pressure not to, for different people willbe stimulated by different parts of the discussion. The ultimate solution is to fit obscenity regulation back into theauspices of clear and present danger doctrine. In order to do that, we must adjust the scope of the regulation to those works thathave specific recognized evils, e.g., (1) depictions of rape,bestiality, sex with minors, adultery(if applicable), incest, sexaccompanied by violence, kidnapping, and any other harmfulactions condemned by positive law; (2) depictions of women,inciting discrimination against them.