COMMENTARY: Defining the 'obscene'.

CAIRO: In 1964, Nico Jacobellis, manager of an Ohio film arts theater, was convicted and fined $2,500 for showing Louis Malle's controversial film "The Lovers."

After extensive deliberations, the US Supreme Court upturned the verdict, ruling that the film is not a product of obscenity. When it came to defining obscenity in solid terms though, the four judges overseeing the case failed.

The most striking, and famous, statement produced during the trial belongs to the famous Justice Potter Stewart. "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so," he wrote.

"But I know it when I see it."

This phrase became the touchstone principle upon which most subsequent trials of the kind were, to a great extent, judged by.

Most notorious among these cases were Miller vs. California in 1973. In it, the United States Supreme Court attempted, once again, to establish a number of criteria, known as the Miller Test, by which the judiciaries can determine what constitutes obscene material.

Another guiding principle the court considered was the 1868 Hicklin test that defines obscenity as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."

Again, the court was faced with several hurdles; chief among them was ascertaining these "community standards."

The highly divisive verdict of Miller vs. California required every state to evaluate similar cases according to their own "community standards." The verdict proved to be nonsensical with many later rulings upheld by the Supreme Court.

If these cases taught us one clear lesson, that would be the impossibility to come up with clear-cut definition of flappable concepts like "obscenity" and "community standards."Aa

Yet, apparently, Egypt's Administrative Court believes it holds the key to this centuries-old mystery when it ordered the Telecommunications Ministry and the National Telecom Regulatory Authority last Tuesday to block "obscene" websites.

The court ruling is baffling to say the least. "Rights and freedoms are not absolute," the ruling stated; "but rather limited by the [need to] protect the pure essence of the family which in its turn is the basis of society, and whose constituent elements are religion, morals and patriotism."

Patriotism? Pardon my ignorance but how does these so-called "obscene" websites defy "patriotic values?" Moreover, what are these "patriotic values" and how precisely can all "obscene" websites endanger the social fabric of our society?Aa

The statement of Nezar Ghorab, the lawyer who filed the case, was even more bewildering. Ghorab, who took it upon himself to represent the seemingly homogenous ideals and concerns of the 75 million Egyptians, said that case has nothing to do with personal freedoms. "If freedom harms others, it is no longer a freedom," he added.

How does, say, consuming porn harm the freedom of others? Is the increasing sexual harassment directly related to porn consumption? If that's indeed the case, it hasn't been proven yet and neither Ghorab nor the court succeeded, or even attempted, in establishing this co-relation. And as far as I know, no scientific studies have been presented to court to assert this link. Thus, this whole case is essentially built on mere assumptions and chit-chats.AaAaAa

To support his case, Ghorab named the recent swingers club scandal to illustrate the "dangers posed by such offensive websites." Again, how can such a rare and exceptional incident endanger the entire society?

I'm not defending obscenity; I just don't know what it is. Obscenity is a very subjective term; what's obscene for you might not be obscene for me and vice versa. Confining one or a small group of people to decide it is wishful thinking. Values and morals are also loose terms that cannot be shoved down people's throats.Aa

My biggest concern though that such ruling could be a pretext to curb various forms of creation and expression. A court order like that could mutate into a widespread ban on books, films, music and arts. You only need to look at recent lawsuits to recognize the potential hazards that could be ushered by this verdict.

Last month, the Administrative Court revoked the license of Ibdaa magazine for publishing a poem the court called "blasphemous." A couple of weeks ago, an Egyptian lawyer filed a lawsuit to ban oriental dancing, one of Egypt's oldest art-forms, and to fine the Ministry of Culture for granting work license to dancers. Last year, theater director Gala El-Sharkawy called for the cancellation of the Experimental Theater Festival, referring to it as "a sex festival," while former judge and current lawyer Mortada Mansour attempted to have Khaled Youssef's film "Heina Maysara" banned. Popular Muslim preacher Khaled El-Guindy, on the other hand, voiced his opposition to Latin singer Shakira's Cairo concert, calling her a "prostitute" on TV.

Under no concrete guidelines that clearly identify obscenity, anything can be considered obscene.AaAa

Banning has never proved to be useful with Egyptians. Before internet, there was satellite TV, and before that, there was the Cairo International Film Festival where hordes of men flocked to watch uncensored movies.Aa

Blocking "obscene" websites will not put Egyptians back on the road of righteousness. Sexual repression has become a fundamental plague of our society, one that will not be cured unless the government and the other influential institutions grant people the freedom to act and decide for themselves.

Daily NewsEgypt 2009

Provided by Syndigate.info an Albawaba.com company