Light is Right Joe Campbell
I grew up under the protection of the Hicklin rule. That’s the test for obscenity that England’s Lord Chief Justice Sir Alexander Cockburn formulated in 1868.
I don’t mean that I grew up in 1868. I mean, rather, that I safely completed my formative years before Canada abandoned the rule.
Chief Justice Cockburn defined published material obscene if it tended to deprave and corrupt “those whose minds might be open to such immoral influences and into whose hands it might happen to fall.” In doing so, he overturned Judge Benjamin Hicklin’s decision upholding the legality of a controversial pamphlet.
What first interested me in the Hicklin rule is that it immortalizes the junior judge who didn’t formulate it rather than the senior judge who did. But I wouldn’t think of making an issue of it. Not when there are more pressing legal practices that also don’t make sense.
Judge Hicklin, of course, didn’t achieve real immortality any more than I grew up in 1868. Rather, his immortality is legal, in the sense that Shakespeare’s is literary.
What later interested me is that the Hicklin rule is more dependable than the tests that replaced it. When Chief Justice Cockburn formulated the rule, Western culture still had a sense of natural law supported by Christianity. In this light, depravity and corruption violated universal moral principles.
However, Canadian courts changed direction in the latter half of the twentieth century. That is, they turned backwards, way backwards, all the way to the Roman Empire, in fact. The politicians set the stage for the retreat by amending the Criminal Code to define obscenity as the undue exploitation of sex. The judges followed by switching their focus from applying the Hicklin rule to trying to assess undue exploitation in non-moral terms.
Initially, the test was whether the published material violated community standards, which the judges acknowledged are changeable and national. Later, they added that the test is one of tolerance. It is not, they ruled, about what Canadians believe is right for themselves to see. Rather it is about what they can’t abide letting others see because doing so would exceed contemporary standards of tolerance.
It sounds like a sophisticated defense of “Do as I say not as I do.” Not only were the standards relative to time and place, the tolerance seemed hypocritical.
By 1985, the second feminist wave and the recently enacted Charter of Rights and Freedoms made their presence felt. Both contributed to the introduction and elaboration of a harm test for obscenity. For one thing, the judges found material obscene if it is likely to harm society by exploiting sex in a way that degrades and dehumanizes women. For another, they linked the harm to values enshrined in the Charter, particularly equality and freedom of expression.
Along the way, they found it awkward trying to juggle tests for both harm and community standards. What if the community tolerates material that causes individual or social harm? Or, what if material that doesn’t cause harm runs afoul of the community standard?
So they fused the tests, making the community standard depend on the degree of harm the material might cause. Maybe they thought that, by itself, community disapproval wasn’t important enough to justify denying the Charter freedom to express obscenity. Why, for all the judges knew, the community’s intolerance may arise from the material’s offensiveness or, heaven forbid, its immorality.
Thus weakened, the long-suffering test was marked for death. In 2005, the Supreme Court delivered the coup de grace, replacing the community standard of tolerance with a judicial standard of tolerance. Oh, the judges didn’t call it that. However, with the community out of the way, they could recast obscenity to suit themselves, as they’ve done with abortion, homosexuality, prostitution, and assisted suicide.
The judges established the new test in a context of alleged indecent conduct. They upheld the legality of a private club in which members and their guests met for group sex. We used to call that an orgy. However, a majority of the Court held that, among other things, the conduct didn’t threaten constitutional values by risking individual or social harm. In particular, they said, it didn’t physically or psychologically harm participants or pre-dispose others to anti-social behaviour.
It’s amazing what you can come up with when you ignore community standards, not to mention natural law. I wonder what’s next on the courts’ to do list: polygamy, incest, bestiality?
Part II of Joe Campbell’s ‘Broken Laws’ will appear in September.
