Who Defines Community Standards?


Warning: uncensored image at end of article.

Some months ago the nine other editors of Honi Soit and I decided we wanted to put images of vulvas on our front cover. Throughout the year we have published an extensive range of material exploring feminism, gender, and the body; from op-eds overturning the half-truths of anti-abortion society LifeChoice, to stories about the number of women studying engineering, and even debates about the politics of ejaculation and squirting.

We believed the cover naturally aligned with both the paper’s short-term and historically developed editorial direction.

This cover was not intended to stir discussion about the law or censorship — though student media has deliberately done so in the past.

Yet as our deadline approached it became clear we would have to engage with legal issues. After taking advice, the President of the Students’ Representative Council (SRC) decided the threat of criminal prosecution could only be mitigated by placing a series of identical black rectangles over each vulva, leaving not much more than a few tufts of pubic hair or centimetres of skin visible. This would more or less undo what we had tried to achieve.

Before 1969, censorship cases were dealt with on the basis of whether material had the “tendency to deprave and corrupt”, a precedent set in the jolly year of 1868. But after the High Court heard Crowe v Graham more than one hundred years later, this measure was overturned in favour of the so-called "community standards test".

Though it looked like an improvement, the new test met immediate opposition in the alternative and student press. When journalist and NM contributing editor Wendy Bacon was accused of defying these standards by printing the poem “Cunt is a Christian Word” in Tharunka in 1971, she told a jury that such standards were illusory and argued the test served only to impose conservative values on more progressive parts of the community (not least universities).

Today, this test remains embedded in both of the channels responsible for guiding censorship in NSW; the Classification Board (which can classify or restrict something you print, for example by forcing you to only sell it to adults) and section 578C of the Crimes Act, which can do a lot worse and bestow you with a criminal conviction for publishing indecent material. The latter offence has a maximum sentence of 12 months imprisonment.

The Classification Board test is slightly weaker than section 578C.

Though the Classification Board does not give advice on potential cases, a former member who asked not to be named told New Matilda the board, “would look at whether or not the [vulva cover]…would have been for sexual titillation, which clearly it was not in this case,” and that because of the potential public health benefit of distributing the images, they would have likely ruled it unrestricted. This would be different if we were depicting sexual images, as the ABC's Hungry Beast reported in 2010.

That leaves us with the Crimes Act.

Our cover was redacted, so it’s difficult to speculate on how a magistrate might have ruled.

What makes it such an interesting hypothetical is the fact the intention behind the piece was to openly challenge “community standards” and assumptions. There are plenty of reasonable people who think there is something abnormal about a prominent labia, or a vulva shrouded by a large, or small, mass of pubic hair. And there are surely scores of reasonable people who would be offended and would believe it indecent to show the images that suggest otherwise. But how do you make a new argument to those people when the most effective way to do it is contrary to prevailing community standards? This test means that by printing content deliberately designed to straddle the boundary between public "decency" and "indecency" with the intention of shifting those demarcations, you are putting yourself at legal risk.

More than 40 years later, Bacon still sees the community standards test as dangerously homogenising. “It is absurd that a magistrate who may be quite removed from the social situation in which [the cover]was to be published, has the power to arbitrate on what conforms to community standards,” she said.

According to Tanya Mitchell, a legal academic at the University of Sydney who specialises in criminal law, the terminology used in section 578C is deliberately vague.

“The thing about the word ‘indecent’ is that it’s deliberately fuzzy, it’s deliberately malleable to be able to change with the times, to be able to incorporate whatever this nebulous kind of idea of ‘community standards’ may be,” she told New Matilda.

Mitchell added that the legislation also allows for “an expert to be called to give an opinion on whether the publication has value as literature, art or science”. But as the arbiter of community standards, the magistrate ultimately has the power to decide what is indecent and, therefore, the fate of the publishers.

For a small organisation like the University of Sydney SRC, the prospect of appearing before even the most liberal, open-minded, well-humoured magistrate is risky. The mere possibility of litigation has a chilling effect on any organisation without the ability to pay legal fees. You might win the case, but you’ll be broke by the time you do. With larger corporate media groups unkeen to fall on the wrong side of “community standards”, it becomes hard to discern where the limits of our speech lie — and what we are missing out on as a result.

Senator Lee Rhiannon, the federal Greens women’s spokesperson, said the Honi Soit incident had revealed some of the flaws of section 578C.

“I think it’s very problematic really. With the Crimes Act, it’s like it’s from another century and it’s still influencing legal opinion and therefore what people write and say in our media,” she explained in a phone interview with New Matilda. Rhiannon argued the natural lethargy of politicians on censorship issues meant a substantial public debate would probably have to occur before anything could change.

The problem is that, in the long term, the “community standards” test is actually quite a useful mechanism. Mitchell notes that while its vagueness means it can be overly restrictive, it also allows it to be evolutionary and gives magistrates the chance to overturn conservative precedents when community standards discernibly shift.

Macquarie University’s Professor Catharine Lumby told NM the laws in question were not only stifling expression but actively reinforcing some of the norms Honi Soit had attempted to call into question. “The idea that there are certain things that are obscene – if we’re just talking about the female body for instance, particularly the vagina – reinforces this idea that there’s something taboo about the female body. That’s also why it’s so sexualised: because it’s taboo.”

In the end, Honi Soit did not have enough resources of its own to test the law.

In an unexpected turn of events, however, news of the censorship was picked up by other outlets who presented it to an audience tens of thousands of times larger than we could have hoped to have reached. Other newspapers and magazines were able to write headlines that included the words “censored” and “vagina”. Online outlets such as Guardian Australia and Jezebel ran the full, pre-censored cover.

The saga thus establishes an interesting model. If small and independent media outlets continue to feed material to progressive online mastheads, legally ambiguous content designed to challenge intersecting social and legal norms may be distributed to large audiences. But as things stand, the law will continue to exert pressure on publishers of all sizes to contain their material within the invisible but potentially oppressive bounds of “community standards”.

The uncensored Honi Soit cover

Max Chalmers is a former New Matilda journalist and editorial staff member. His main areas of interest are asylum seekers, higher education and politics.