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To See Or Not To See

Hearings before the Indecent Publications Tribunal under the 1963 Act began in 1964, and the operations of the Tribunal constituted under that Act have been under close and even severe scrutiny ever since.

We asked one member of the Tribunal, Stuart Perry, to set down some of his ideas about the necessity for censorship: they appear below.

It is worth a brief look to see why, historically, men have clamped down on freedom of expression. It is because of fear of consequences which might result from the acceptance of unorthodox ideas: this acceptance might be inconvenient to the authorities, civil or ecclesiastical, might seem to constitute a threat to established institutions.

The chief and the priest, often enough, have shared ideas of what is good for the community: not all churches are established by law, but the connection is usually a close one.

In a state of nature, it seems that the children of a primitive community are brought up by the tribe rather than by the parents alone. Economic considerations are not such as to demand monogamous unions, and religious teaching, at this stage not very sophisticated, does not demand monogamy either.

At this early point of development there may well be hunger and neglect, but there appears to be an extraordinary absence of the neurotic and psychotic disorders which plague the members of more advanced society.

Living one's life in a primitive community may be compared with running the length of a football field, carrying a ball to be touched down at the other end, with no opposition.

Living one's life in organised society is more like trying to touch down with fifteen men and a hundred rules in the way. It is a more difficult and hazardous undertaking and one is likely to acquire scars.

These scars are not produced by the simpler but by the more complex operation: they are the results of the additional hazards which are put in, and make the game of football—or of life—more heavily organised.

There is always the player who prefers his own rules to those laid down by the authorities: usually it is not long before he finds himself up against the herd. It is possible to amend the rules, but not by arguing with the referee, or the police for: for obviously that kind of conduct is anti-social; that is, it runs counter to the provisions that society has adopted to keep the wheels of community life turning smoothly.

Protest today is a fashionable pastime carried, in the eyes of some, to tiresome excess. It is always a question how far the protester may properly go in inconveniencing his neighbour through the vocal exercise of his right to persuade.

Protest taken too far in the wrong direction may be anti-social and infringe the right of one's neighbour to be left alone; but the right to persuade is the cornerstone of democracy.

Laws which forbid the forcible overthrow of the state are made by common consent for the preservation of the lives and safety of the whole of the community: in a democracy they are justified by the rules of the game. Rules which forbid argument or illustration directed towards peaceable changes in the constitution are thoroughly bad, for they would condemn the community to stagnation and inhibit development. There is always this tendency in extreme conservatism, and some conservatism of this kind usually resides in the government of the day, of whatever party. It is rooted in fear.

Public opinion is not one and indivisible, and it is not static.

In the censorship debate it is possible to Suggest that on balance society seems to require at present considerable freedom of adult access to literature; but as far as it has been articulate public opinion appears still to demand, on balance, a fair measure of protection of the young.

Many who in a state of nature, or starting from scratch, would find censorship unnecessary and even in today's conditions find it irksome cannot forget the contention that pornography and censorship on moral grounds normally co-exist: one is not usually found without the other.

But we do not live in a state of nature, and We are not starting from scratch. Comparing the two forces in the community Mr Justice Stable says:

'At the extreme you get the conception, I venture to think, of the mediaeval church, that sex is sin: that the whole thing is dirty; that it was a mistake from beginning to end (and, if it was, it was the great Creator of life who made the mistake, and not you or I); that the less that is said about this wholly distasteful topic the better: let it be covered up and let us pretend that it does not exist. . . . I suppose the high tide was obtained in the Victorian era, possibly as a reaction against the coarseness of the Georges and the rather libertine attitude of the Regency, when I understand that in some houses legs of tables were actually draped, and rather stricter females never referred as such to gentleman's legs, but called them their "understandings".'

-R. V. Martin Seeker & Warburg. 11954] All

E. R. . 683.

With such an attitude more or less generally accepted in the fairly recent past it is scarcely surprising that liberalisation has come accompanied by feelings of misgiving and guilt. Society has not been able to build up a single coherent attitude towards sex in life or in literature: even in the debates on the Bill which became the Indecent Publications Act l963 it was apparent that the community was sharply divided: it has been abundantly plain since.

No one in the search for truth is so wise that he can lay down absolute rules for his community: perhaps no individual should be so arrogant as to attempt it. It is for the community itself, through the best machinery it has been able to devise—Parliament, operating in the glare of articulate public opinion —to debate and decide whether there shall be any censorship.

What in fact we have in New Zealand is the result of many forces. It is imperfect of course; and equally of course abuses may stem from it. But it may very well be that the passage of this Act was about the longest step that society could sensibly have taken at that time towards an ultimately more satisfactory practice. It is not impossible that the sudden withdrawal of censorship from a community accustomed to a fair measure of it might have proved unhealthily disturbing and far too extreme.

It is easy enough for some of us to be dogmatically sure that books do not corrupt but have simply a cathartic effect: others are equally sure that books do corrupt and there is a legal assumption to this effect that has been approved by British courts since 1868. We do not know, but we can surely accept that the Act which requires that likelihood of corruption should be taken into account is in these circumstances, not departing from good sense or responsible regard for the public interest. Likelihood is a hard thing to assess but the attempt must be made. Ex-President Johnson's recently-appointed commission may come up with the answers: but we do not have them yet.

It is possible that a wide open society would be a healthier society. Scandinavian experiments may point the way or provide a warning—we do not know yet.

The social process moves slowly and it is a good thing that it does. Society works better when it is not being sharply dislocated.

It has been said that pornography and the demand for it will never decline through repressive measures taken to prevent its circulation. It is true, too, that removal of restrictions is likely in time to result in a diminution of prurient interest. Yet would it not be irresponsible for a legislature serving a divided community to take all restrictions away at once and to risk any and all untoward results of the chaotic period which would inevitably and immediately follow?

If any one were so ingenuous as to imagine that when a book is cleared by the local Tribunal it just quietly goes on sale, then he is not keeping his eyes open. Justice must be seen to be done and only grave reasons would justify suppression of publication of what is done by the Tribunal—but once the news comes out that a book is exonerated one has only to walk down the street to see copies prominently displayed. Because it has been put up for consideration is obtains additional publicity. We do not work in a vacuum. Restrictions may have been responsible for the development of a market for books designed to exploit youthful susceptibilities for mercenary reasons, and if all restrictions were to cease this market might in time dry up.

Even son a government would require great hardihood and great certainty that the will of the community was really being interpreted if it were to remove restrictions suddenly and to allow a sudden flooding of the market, a sudden filling of the vacuum, with the extremes of deliberate way-out pornography.

Ernest van den Haag in a contribution to Encounter—Is Pornography a Cause of Crime? — (December 1967, pp. 52-56) writes some words which, whether or not one agrees with them, should cause one to pause and think:

'Censorship is no less possible nor less needed than pornography. If we indulge pornography and do not allow censorship to restrict it, our society at best will become ever more coarse, brutal, anxious, indifferent, de-individualised, hedonistic; at worst its ethos will disintegrate altogether.

'The self-restrained and controlled individual may exist and function in an environment which fosters reasonable conduct—but few such individuals will be created, and they will function less well in an environment where they receive little social support, where sadistic acts are openly held up as models and sadistic fantasies are sold to any purchaser. To be sure, a virtuous man will not commit adultery. But a wise wife will avoid situations where the possibility is alluring and the opportunity available. Why must society lead its members into temptation and then punish them when they do what they were templed to do?

That, perhaps, goes further towards protection than many would wish; but enough of it can be accepted to provide a warning to proceed cautiously. If change is to come, let it come at society's own rate, not in response to any doctrinaire demand.

Perhaps we should have no statute but the fact of the matter is that we do have one and that it is there by the will of the majority exercised in due constitutional form. In that statute the, overriding consideration is the public good.

Mr Bevan Burgess' generally admirable article (Landfall 81, March 1967) which was quoted in Rostrum 4, (September 1967) in an article by Jan Walker entitled "To Deprave and Corrupt" suggests that the Tribunal would not have functioned with so great liberality if it had not been certain of such widespread liberal backing and had so many liberal hatchet-men not been waiting for it to make a mistake. The fact is, of course, that the members of the Tribunal took office in the sick certainty that whatever they did they would be unlikely to please everyone: there can be few issues on which the community is more sharply divided. Most or perhaps all of them were known to have expressed liberal views and it must surely have been obvious to everyone that the very interests which were responsible for the expression of apprehension in and around Parliament would in time become vocal in the community—as they did when the fire in the fern spread from Invercargill to Mairangi. Mr Burgess' suggestion that the Tribunal is all the time trying to keep out of trouble has always seemed to me slightly offensive. A far juster perspective, if more remote from the corridor whisperings of the House of Representatives, would have been given the public by the simple statement that those who accepted office had first to make sure that they accepted the principle of the statute, and then to assure themselves that their administration of their part of it would not set them at odds with their own consciences. That may sound a bit smug and toffee-nosed but it is the simple fact.

It is easy to sympathise with the view that any system of censorship is repugnant and must be illogical: in final and absolute terms this contention may be valid, subject only to the right of any citizen not to have his privacy too seriously invaded, not to be swamped with unsolicited and repugnant annoyances. But I do not think it follows that the present statute is a bad one: I think it is a particularly useful one to serve society until it sloughs off, if it does, the Apollyon-burden of its Victorian heritage. I agree that constant vigilance on the part of the public is an integral part of the process. I do not regard this as society's monitoring and auditing of a bad law, but simply as the logical and necessary and accepted operation of the democratic process of testing and trying to improve a good one

(Stuart Perry has been a member of the Indecent Publications Tribunal from its establishment in 1964)