In the general fallout from the Michael Peacock Obscenity Trial (if you missed the whole unedifying spectacle see, inter alia, the Guardian) the Hersey Corner highlights some important questions about obscenity and the law.

The questions raised by the trial are important, not so much in terms of jurisprudence, but in terms of developing society’s, as well as our personal, views of obscenity and indeed morality.

As usual I’m going to try to condense the arguments for you. Also as usual others express the ideas better, more succinctly and with greater knowledge than I can. So in this case here are some key extracts in the words of the Heresy Corner, with a minimum of comment.

The material in question depicted acts that are legal to perform, which did not fall within the definition of “extreme pornography” contained in the more recent Criminal Justice and Immigration Act 2009 but which nevertheless came within the CPS prosecuting guidelines for obscene publication […]

[T]he majority […] has welcomed the verdict, seeing it as another nail in the coffin of a paternalistic, judgemental and outdated piece of legislation, as a victory for free sexual expression, as a sign that the law may be at last coming to grips with a more liberal society […] [T]he guidelines used by the police, the CPS and the British Board of Film Classification are based on the current “best guess” of what would be judged obscene by a British jury […]

The OPA’s [Obscene Publications Act 1959] true significance doesn’t lie in the small number of prosecutions that are brought under it, but rather in that it sets the standard by which the police and the BBFC judge the shifting boundary of what is or is not to be considered “obscene”. It is unusual […] legislation in that it bans nothing outright but instead employs a notoriously subjective test, that of “tending to deprave and corrupt” anyone likely to see the material in question. Therein lies the law’s uncertainty — and, for many, its inappropriate moralism. On the other hand, the very subjectivity of the test does make allowances for changes in society. It gives it flexibility.

[T]he CJIA […] makes no allowances for taste […] And unlike the OPA it targets the possessor — even an inadvertent downloader — rather than the producer or the distributor. Though apparently narrower in remit, in respect of those activities it proscribes […] it is harsher and more regressive.

What of the concept of “obscenity” itself? Many would consider it outdated and illiberal by definition […] [N]ow that the OPA has had the life almost squeezed out of it — between more liberal social attitudes on the one hand and the new extreme porn laws on the other — it’s worth asking […] whether something of value is being lost.

The crux of obscenity law is that it bans the depiction of acts which, in themselves, are not illegal; it declares to be depraved and corrupting activities which it nevertheless acknowledges that consulting adults might indulge in, and still remain decent members of society […] Yet is this not also a way of saying that the needs of society and the needs of individuals might not always coincide, and that there might be a space between what must be privately allowed and what may be publicly depicted? Not everything that is socially unacceptable ought to be illegal, after all: that way lies totalitarianism. But by the same token, the fact that something is legal does not [necessarily — K] render it socially acceptable [nor necessarily suitable for depiction — K].

[T]he Obscene Publications Act sought to strike a balance between private and public rights. It recognised that citizens might lawfully get up to things that the majority of their fellows might consider depraved and corrupted while asserting that the majority also had the right to have their sensibilities protected. Most importantly, by leaving the final decision to a randomly-selected jury of ordinary citizens, it granted custodianship of the standards of decency to the people […] rather than their being decided unilaterally by politicians and police. These are principles worth clinging on to […]

So in short, let’s not kill the idea of a test of obscenity by jury. Consenting persons have a right to indulge, in private, in pass-times which others may find distasteful or worse. The majority, while upholding that right to indulge privately, may feel that such acts shouldn’t be promulgated publicly. Surely only a jury can make such a decision, reflecting the prevailing morality of the time. Which in turn leaves each of us to make our own decisions as to where the various lines (public and private) should be drawn.

And it is only by each of us developing our own ideas, whether in accord with or contrary to society’s view, that society’s opinions and morality can change. After all society’s collective view is but the consensus (average) of our collected personal opinions.

Isn’t that what democracy and free speech is all about: leaving us, the people, in control of our destiny?