Envisioning a Constitutional Right to Pornography

The creative depiction of sex, sexuality and any associated concepts have since time immemorial been believed to be morally repulsive to the majority society and have been assumed to be morally degrading, so much so that even genuine literary or artistic works on such themes have been subjected to strict censorship citing grounds of public morality and decency. Almost all countries prefer substantial censorship if not outright prohibition on the sale, distribution and display of sexually explicit books, magazines, films or other materials. This article seeks to approach the efficacy of such restrictions on pornography on three fronts. On the philosophical front, this article advocates for a Utilitarian Approach which stipulates determination of censures after a collective deliberation and an egalitarian decision making on the basis of equal consideration for individual autonomy and public safety. Secondly, this article tries to discern whether it is feasible to derive a constitutional right to pornography from the existing cluster of rights to free speech & expression, right to liberty, right to privacy and to bodily autonomy. Finally, the shortcomings of the currently applicable test for obscenity shall be evaluated, and an alternative test which unambiguously segregates obscenity from erotica on the basis of the harm posed by each form of pornography shall be proposed to replace the current standards of obscenity.