NCJ Number
115852
Journal
Journal of Law Reform Volume: 21 Issue: 1 and 2 Dated: (Fall 1987, Winter 1988) Pages: 201-253
Date Published
1988
Length
53 pages
Annotation
This article examines the regulation of pornography in West Germany and compares it to regulation in the United States.
Abstract
After an overview of the legal framework, constitutional and statutory, of pornography regulation in West Germany, this article traces the evolution of the concept of human dignity as a standard for defining pornography in West Germany. The practical impact of this idea in two widely debated recent cases is then considered. The article argues that West Germany's human-dignity approach to pornography regulation raises important questions about how to view pornography, but that cultural and constitutional differences between West Germany and the United States caution against the direct application of the German approach in this country. The article notes that the comparison in the two countries reveals a paradox. American pornography regulation rests upon the claim that pornography is not speech, so the first amendment does not protect it. Under classical liberal theory, regulation would be legitimate only if it aimed to prevent dangers to the safety of society or its members. The U.S. Supreme Court, however, justifies pornography regulation as the right of society to keep itself decent, a rationale for the majority's imposition of its moral views on the minority, which is a violation of the tenets of classical liberal theory. West Germany, on the other hand, does not espouse the tenets of classical liberalism but refuses to regulate material that is not dangerous although it may be considered immoral by the majority. 218 footnotes.