Icasa’s poor reasons for TopTV decision

As submitted to the Daily Maverick.

In 1983, MacKinnon and Andrea Dworkin drafted an ordinance restricting pornography which was briefly adopted by the Indianapolis legislature before being declared unconstitutional. Much of the language defining pornography in this ordinance can also be found in ICASA’s “Reasons” document (pdf) explaining why On Digital Media (ODM, trading as Top TV) were refused permission to add three pornographic channels to their product line.

This ordinance defined pornography as the “graphic sexually explicit subordination of women through pictures and/or words”. The tests for whether or not a item was pornographic included “women are presented dehumanized as sexual object, things, or commodities”, “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”, and women being presented in “positions of sexual submission, servility, or display”.

ICASA accept the MacKinnon definition uncritically, much like their entire argument accepts various normative moral claims uncritically. In fact, you might struggle to find a more clear example of a regulator having its work done for it by remote-control, whether via the selective retreating of contested arguments from the likes of MacKinnon or by the latter day moral hysteria of the Christian Action Network (who have previously accused the Cape Times and the Cape Argus of censorship when those papers refused to publish obituaries for the 900 000 South African babies killed by abortion).

Many of the problems with ICASA’s reasoning were skewered in Ivo Vegter’s column on this topic and also my previous column on Multichoice’s similar experience, so won’t be repeated here. Suffice it to say that their argument is still premised on every young person being an expert in both psychological manipulation of his parents, and perhaps also a master hacker of set-top boxes (but one who mysteriously seems to never have heard of the Internet and the pornography available there).

He’d need to be all these things to a) persuade an adult to subscribe, pay the monthly fees, and reveal the two independent pin codes and b) crack those two pin codes if necessary. I checked the sums with the mathematician John Allen Paulos, who confirmed that there are 10 000 possible combinations of one 4-digit pin code, and 100 000 000 combinations for two pin codes. Parents would in other words have to stay away for months, if not years, for children to be able to guess the pin numbers in question. To put it another way, you would be seven times more likely to guess the Lotto numbers than to guess these two pin codes.

The 17-page Reasons document concludes with a summary of its three reasons for refusing the application. First, “the right of women to equality and human dignity overrides the Applicant’s right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home. The Authority holds this view because it regards the consumption of pornography as one contributing factor, amongst others, to the normalisation of violence against women in South Africa”.

While it’s true that the Authority holds this view, the document fails to explain why this is the case. The data they present on sexual offences certainly show a high incidence, but certainly not an increase in the period reported on (2003-2011) – if anything, they show a slight decrease. The data might of course be poor, but that’s the Authority’s problem to resolve if they want to make the connection between pornography and sexual violence.

Oddly, though, ICASA seems reluctant to make that connection despite using it in their conclusion. “The Authority is not saying that there is a direct causal relationship between the consumption of pornography and violent sexual crimes against women. … However, consumption of pornography may contribute to the incidence of rape by making it more likely that those who are already inclined to rape may feel validated by seeing women as sexual objects to actually rape, thereby increasing the overall incidence of rape”.

This thinking is utterly disingenuous, or entirely circular. I suspect the latter, as the document is riddled with phrases like “probable consequences” and “harmful effects” – the seeds of a moral panic are in other words widely planted. The point here is that either pornography does cause these effects, or it does not, or we don’t know. We’ve got some reason to suspect that it doesn’t (and, in fact, better evidence to suggest that it decreases sexual violence), but let’s assume – as ICASA does – that the “empirical evidence for this is not conclusive”.

In other words, we are being told that we should limit it just in case, on the precautionary principle. But unless we have reasons to suspect that pornography validates the perception of women as sexual objects more than Baywatch (for example) does, we also need to prevent the screening of Baywatch. Which is to say, the data needs to support the banning of pornography to prevent this decision from being based purely on an established moral conservatism.

This brings us to the second of the three reasons, namely that ODM “misconstrued the objections to its application as moral or religious grounds rather than as serious stakeholder engagement on constitutional or legal grounds”. The grounds referred, broadly speaking, are rights to equality and dignity. And again, if only consenting adults have access to this material and it cannot be shown to lead to increased sexual violence, the argument makes its case only by saying something to the effect of “pornography undermines equality and dignity because pornography undermines equality and dignity”.

As Margot St. James observed in response to the MacKinnon ordinance, “I’m against the censorship … [one] line that worried me tremendously was, `Pornography represents women as whores by nature.’ Well, what’s wrong with that? I’m a bad girl. I like being a bad girl. I like my whore status. I have control and power over men, in private certainly, and now also in my public life”.

Whether ICASA disapproves of these women or not, they feel empowered through pornography. And while we do have to balance the right to free expression against harms, evidence of such harms is necessary to override the presumption favouring freedom. (For those who want to retort that pornography isn’t a free speech issue, note that ICASA frames it as such, which legitimates a response on those same grounds.)

The second of the three reasons also includes an aside on ODM’s failure to participate in the public hearing. Earlier in the document, this is described as “inexplicable”, and ICASA laments how they “did not receive a courtesy” of being informed that ODM were planning on missing “such a golden opportunity”. The language, in other words, is fairly smug and not exactly impartial in tone. More relevant here though is that only the merit of the case should decide the issue. While ODM certainly erred in not being there to respond, this shouldn’t act as a reason for rejecting their application. Citing it as one seems to confuse making an impartial judgement on a case with teaching a moral lesson to ODM.

The final reason notes that the government has already “limited citizens’ rights to freedom of expression with regard to the consumption of pornography by law. Accordingly, the Authority sees no reason to expand access to pornography on the airwaves into the home”. For a regulatory body that proudly asserts that it is “regarded as pro-active rather than re-active”, this is an odd thing to cite as a reason. They had the opportunity – even if they ended up not taking it – to assert that current limitations are too severe. Instead, this appeal to precedent (and authority) seems to indicate the same intention to justify a foregone conclusion discussed in respect of the other two reasons.

Of course pornography can change the social landscape, and I’m even persuaded that it can do so negatively. Naomi Wolf is quite persuasive in arguing that pornography may be responsible for “deadening male libido in relation to real women, and leading men to see fewer and fewer women as ‘porn-worthy’”. If you agree, you should be free to choose to not subscribe to pornography channels. But you’re no longer free to make that choice – it’s been decided for you that you don’t have that option, and also that you’re not capable of keeping a pin number safe from your children.

P.S.: This FreakoStats post, crunching some porn-related numbers, is well worth reading.

By Jacques Rousseau

Jacques Rousseau teaches critical thinking and ethics at the University of Cape Town, South Africa, and is the founder and director of the Free Society Institute, a non-profit organisation promoting secular humanism and scientific reasoning.