That is the easy comparison to draw, and one that may give some comfort to those who believe in the inevitable superiority of the U.S. Constitution. Reality, as always, is a bit more complicated, with precedent and a generally laid-back attitude over here producing end results, in respect of adult content, that may be broadly similar to those on the other side of the pond.
At least that may have been the case over the last few decades. Unfortunately, an Internet-inspired panic on the part of our legislators may finally have driven them toward "doing something" about a medium they only partly understand — and that bodes ill for our future freedom.
Unlike the U.S., the U.K. does not have a single view of "speech." We attempted to create one in 1959 with the passage of the Obscene Publications Act, which made it an offense for an individual to publish anything — picture, film or novel — which "tends to deprave or corrupt."
Well, we tried. The establishment certainly thought they had done something to stem the tide of filth that the '60s looked likely to unleash; and first up for prosecution in 1960 was "Lady Chatterley's Lover" by D.H. Lawrence, on account of the book's explicit sex scenes and repeated use of "bad language."
As the prosecution famously put it: is this the kind of book "you would wish your wife or servants to read?" The jury seemed to think it was, and thus began the long decline of Obscenity Law, at least in respect of the written word.
Various trials since then — the Oz trial and the Linda Lovelace trial in particular — have sought to condemn written material as obscene and to date every single attempt has failed. In effect, the U.K. has free speech in respect of adult content in written material, although recent legislation has drawn a line when it comes to advocating terror — but that is a separate subject.
That is not quite the case in respect of other media. The U.K. does not regard speech as indivisible, and over the years, there has been separate legislation on topics as diverse as cartoons, video "nasties" and video games. We expect legislation on "manga" to be coming shortly, as the adult themes that often appear in these Japanese comics have shocked at least one minister.
Furthermore, the Obscene Publications Act has been used frequently to prosecute creators and distributors of other forms of material, primarily films and photographs. More controversially, police use it to impound material pending a decision to prosecute: after a year or 18 months no prosecution follows and the material, now out of date and reduced in value, is returned.
However, the government prefers to keep its own direct involvement in censorship to a minimum. It is up to individual local councils whether or not they license films for viewing in their area, and they may — but do not have to — make use of a rating system provided by the British Board of Film Classification, a body set up originally by the film industry itself.
The incidence of child porn on U.K.-hosted Internet sites is probably lower than anywhere else in the world. This is achieved in large part through an independent body, the Internet Watch Foundation, set up by U.K. ISPs with a mandate to patrol the Internet and bring unlawful material to the ISPs' attention.
Broadcasting, on the other hand, is subject to the oversight of a body known as Ofcom, which is a statutory body and therefore does actually report to the government.
Regulation of speech and adult content in the U.K. is a patchwork of laws involving a variety of organizations. Some are enforced, some are not. What has changed is the Internet, and the perception that ordinary people now have access to material that is completely beyond the control of government.
Until recently, that was the conventional wisdom: it was technologically and legally unfeasible to do anything about the Internet. But now that is changing — and how! Quietly and with little opposition, government has put legislation in place that beginning next year will do two things. First, it will criminalize the mere possession of images that are deemed pornographic, extreme (or violent) and grossly offensive. Second, whilst much of the focus has been on this "extreme porn" legislation, they have put in place even more dangerous laws that mean individuals in a wide range of jobs can be barred from work for possession of "violent porn." This could affect about half the workforce.
Despite assurances that they don't have it in for the BDSM community, the community is not convinced. Listen carefully and you will hear the sound of shutters coming down, cooperation being withdrawn and, sadly, a great deal of amateur material being rigorously self-censored.
It is hard to escape the conclusion that this is what the government intended. A persistent undertone to the debate over the last year has been the government's exasperation with the democratic nature of the web. They've talked about reining in "uninformed" bloggers and in a recent parliamentary debate one speaker questioned the validity of a computer game "because it had been created by an individual in the privacy of his own bedroom."
Government likes dealing with organized business, because they are so much easier to regulate. That is the other big change of 2008. Two keynote reports, the Byron Review and a report on "harmful Internet content" have both talked enthusiastically about how the time to regulate the Internet has finally come. The days of the electronic "Wild West" are numbered, and politicians are queuing up to propose new controls: age verification, content classification, extended filtering and an official regulatory body for the Internet — we don't have one right now — are all on the agenda.
Meanwhile, having gotten the bit between their teeth in respect to censoring electronic content, they are starting to unpick what we believed to be settled positions on other media. It is probably no coincidence that spring 2009 is likely to see the first prosecution of written material under the Obscene Publications Act in nearly 20 years.
The offense in question originated on the Internet: a gruesome story on asstr.org that fantasized about the rape and murder of pop group Girls' Aloud. However the significance is not lost on writers generally: if this prosecution succeeds it is likely to usher in a new era of censorship in the U.K.
Or rather, in England and Wales; as local readers frequently point out, the law and politics in Scotland are increasingly divergent from the rest of the U.K. However, Scotland and Northern Ireland are the two parts of the U.K. where organized religion has a significant impact on everyday life. With a parliament split almost equally between Scottish Nationals and Labour, the powers that be are queuing up to flatter the church with measures that clamp down on aberrant sex.
It may come a year later, but by 2010, the main difference between Scotland and its southern neighbors is likely to be that the Scots will have taken an even harsher position on censorship.
Is there any chance this will not happen? The Labour Party is now seriously unpopular, and is within 18 months of the last date when they must call an election. The Conservatives, who are most likely to replace them, may pander to the same populist instincts but they are far less obsessed with managing our sex lives. So they could be an improvement.
Unfortunately, with 18 months to go and a series of antisex measures in the pipeline, Labour could still do much to clamp down on what we once believed to be almost given freedoms.
