Court verdict will determine if pornography law applies to political satire in Amos Yee case
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Court verdict will determine if pornography law applies to political satire in Amos Yee case

In Singapore, it is illegal to raise questions that suggest a Prime Minister may be corrupt — that is now considered defamation.[i] It is also illegal to engage in idle talk that sanctions violence against the state, even if there is no real possibility that people will take action — it is considered sedition.[ii] Now, public prosecutors are trying to expand the definition of obscenity laws to criminalise political satire which depict sex acts. Today’s verdict will determine both Yee’s fate and that of all Singaporeans.

On March 28, Yee created a blog post entitled “Lee Kuan Yew buttfucking Margaret Thatcher” with their pictures superimposed on a line drawing. The picture depicts the two ironfisted leaders engaging in a sex act. Yee called it “perhaps the 1st ever satirically sexual image of a political leader, in Singapore”. He explained that it was meant to “to satirize and make fun of, the once supposedly great dictator, Lee Kuan Yew”.

By now, most people would have heard of Amos Yee’s YouTube video, “Lee Kuan Yew is finally dead”. This is the video that turned Amos Yee into a cause célèbre, and it is this video that has been the main subject of media attention. By contrast, his allegedly obscene picture is barely worth a mention on an internet that is filled with sexually explicit material, if indeed it is just another pornographic picture.

Nonetheless, perhaps because of the political overtones of this picture, the prosecution felt that it was necessary to use public resources to put a 16-year-old boy in jail. The best it could come up with to achieve this end was a law meant to catch purveyors and peddlers of pornography; not political satire. And to make their case, the prosecution had to stretch the definition of what “obscene” means.

What’s obscene and what’s not?

In its closing submission, the prosecution conceded that an image is only obscene if it has the tendency to corrupt or deprave the minds of its likely viewers. But rather than explain the words “corrupt” and “deprave”, and show how Yee’s image might cause viewers to become corrupted or depraved, the prosecution made a series of fanciful assertions and relied, rather ironically, on previous cases which involved hard pornography.

First, prosecutors said the image is “plainly ‘obscene’” because “it gratuitously depicts sexual activity”. But the mere depiction of sexual activity does not necessarily corrupt or deprave since sex in the right context is neither corrupt nor depraved. In fact, as the defence pointed out in its closing submission, the image is based on a line drawing that can be found on a Women’s Health website.[iii] The image actually depicts the wheelbarrow sex position (the image is named as such). If the court accepts the flawed reasoning that such depictions of sex acts are obscene, then all such images should also be considered obscene, including those that one may find in other magazines such as Cosmopolitan and Women’s Health Magazine.

Although the prosecution did include the modifier “gratuitous”, suggesting that only depictions of sexual activity that are uncalled for are obscene, the term itself raises more questions than it answers. Where exactly do we draw the line between good reasons and bad ones? Images in health magazines may arguably have a clear educational function but they aren’t always necessary to make the point. There is seldom a clear line between education and sensationalism. Hence it is often necessary to grant some latitude in order to avoid creating a chilling effect on free expression.

Does the political cartoon have any redeeming value?

Related to this is the prosecution’s claim that the image has “no redeeming scientific, educational or medical value”. But this discounts the importance of political satire in public discourse and it ignores Yee’s own comments about why he made the cartoon. In his blog post, Yee explains that he seeks to encourage “more citizens to be able to openly criticize and make fun of their political leaders”. He hopes that this will lead to critical analysis and an open discussion. This is surely a good reason that does not deserve the label “gratuitous”.

In his defence, Yee’s lawyers argued that the subject of Yee’s satire was this statement by Margaret Thatcher’s about Lee Kuan Yew being right all the time:

In office, I read and analysed every speech of Harry’s. He had a way of penetrating the fog of propaganda and expressing with unique clarity the issues of our time and the way to tackle them. He was never wrong…

Understood in its context then, Yee’s picture is very much unlike the pornographic material which the obscenity law is meant for. Unlike pornography, the image encourages people to participate in political dialogue. It would take quite a bit of imagination to believe that it satisfies prurient interests.

Even if the image shocks, offends and causes public outrage, these are not sufficient grounds for considering something obscene. If they are, what of Lee Kuan Yew’s statement that Aljunied residents will have five years to repent if it chooses the opposition Workers’ Party? While the prosecution does not make it explicit that the image’s shocking nature and the resulting public outrage is in fact the reason it chose to bring criminal charges against a 16-year-old boy, its novel interpretation of the obscenity law give us reason to question its motivations.

Does the superimposition of Lee Kuan Yew’s and Lady Thatcher’s faces “accentuate and amplify the depravity”?

Although the prosecution considered this to be so obvious as to not require further explanation, it is not at all clear what this “depravity” consists of in the first place. To be depraved is to be morally wicked. The mere act of having sex in a particular position cannot possibly be morally wicked. Neither is the mere act of sex between two Prime Ministers. What then is this depravity which is accentuated and amplified?

The prosecution doesn’t explain what the image means. Instead, it merely describes the image as if it is self-evidently obscene. For instance, prosecutors describe the image as a sex act, but sex is not inherently obscene. They describe it as being gratuitous or of having no redeeming value, but useless images are not necessarily obscene. They then reiterate that the image’s self-description is “buttfucking”, but crude language isn’t necessarily obscene either. Or perhaps it is the depiction of anal sex that is obscene, but prosecutors aren’t willing to state that explicitly, perhaps because they would then have to censor all the health magazines which discuss it approvingly.

Does the image encourage depravity and moral corruption?

The prosecution also fails to demonstrate a rational connection between what the image shows and its allegedly depravity-inducing and corrupting effects. Instead, it relies heavily on a case in 1963 where a Malaysian judge found a book to be obscene on the basis that:

[T]o the ordinary reader, particularly the young reader, it is calculated to convey and instil the impression that casual and frivolous indulgence of the sexual instinct is something of no importance and indeed nothing more than a joke. When such a seed is implanted in the mind the resulting growth can only be depravity and corruption.[iv]

Ironically, this was a case involving pornographic material. In the same decision, the judge explains:

The book is somewhat difficult to describe in brief. It purports to be a sort of picturesque autobiography of a male person with no very apparent means of support who spends his time uttering reflections on metaphysical matters which may be profound but are certainly not very intelligible in brief intervals between acts of sexual intercourse with numerous prostitutes. These episodes of sexual relationship are described in terms of very great indecency and with a tedious and sometimes almost meaningless repetition of two or three words which are not usually seen in print, even in dictionaries, and which indeed are generally only to be seen scrawled on the walls of public conveniences.[v]

Despite this, the prosecution sought to draw a parallel between this case and the present one. In its closing submission, the prosecution argued:

[B]y any yardstick, the image satisfies the test laid down by Thomson CJ i.e. it was calculated to convey and instil the impression that the use sexual imagery is something of no importance and is nothing more than a joke to “make fun” of other persons. The accused was clearly attempting to plant a “seed” in the audience’s mind, which would grow into depravity and corruption.

Interestingly, the prosecution models its explanation closely after Thomson CJ’s decision even though the facts in the two cases are so different and even though its explanation barely tracks the logic established by Thomson CJ.

First, in the Malaysian case, Thomson CJ acknowledges that the book does not contain anything intelligible. In contrast, Yee’s image is accompanied by an explanation of what the image is, what he wants to do with it and why the positive changes he desires are important (see screenshot below).

Second, the book is pornographic material, Yee’s image is not.

Third, Thomson CJ pointed to how the book is “calculated to convey and instil the impression that casual and frivolous indulgence of the sexual instinct is something of no importance and indeed nothing more than a joke”. In contrast, the prosecution argues that the image is “calculated to convey and instil the impression that the use sexual imagery is something of no importance and is nothing more than a joke to “make fun” of other persons.”

The subject of criticism is not the same. Thomson CJ argued that the book encouraged casual sex; not the casual use of sexual imagery. Having casual sex and putting up line drawings of people having sex are very different actions. Thomson CJ also argued that the book encouraged a flippant attitude towards casual sex; not a flippant attitude towards making fun of others. Being flippant about casual sex and encouraging sexual deviancy is not equivalent to being disrespectful towards others. If being disrespectful is a crime, half our classrooms should be empty by now.

Screengrab-of-Amos-Yee-post-Lee-Kuan-Yew-buttfucking-Margaret-Thatcher-266x280

Screenshot of Amos Yee’s post, “Lee Kuan Yew buttfucking Margaret Thatcher”

Are taboo images obscene?

Perhaps the strangest argument yet by the prosecution is this notion that Yee “crossed the line on what is ‘taboo’.” It argues that Yee “seeks to redraw the boundaries of what is considered ‘taboo’, through the use of ‘shocking’ imagery.” But things can be taboo—read: socially unacceptable—even if they are not obscene. For instance, it is taboo to Chinese people to stick your chopsticks in an upright position in a bowl of rice because it resembles joss sticks. It is also taboo to criticise a person at his funeral because of our respect for the dead. It is certainly taboo to paste Lee Kuan Yew’s face on an image of two figures having sex but this doesn’t therefore make it obscene. Just because obscene images are socially unacceptable doesn’t mean all taboo images are therefore obscene. Social acceptability is not equivalent to moral acceptability.

Whether or not Yee tried to encourage this behaviour is subsequently irrelevant. If the image is taboo, not obscene, he is only guilty of encouraging people to be taboo, not encouraging them to be obscene.

What does obscenity really look like?

The defence argues that there is a high threshold to reach to consider something obscene. It is not enough that an offending image tends to cause revulsion. It is also not sufficient that it merely leads the viewer morally astray.[vi] What then is the standard? Other than the Malaysian case cited above, the question was also considered in the United Kingdom in 1972 in the context of several pornographic books.[vii]

Then, the judges opined that the allegedly obscene books had the tendency to deprave and corrupt because it “fascinated [readers] and enabled them to engage in fantasies” which are “fantasies of normal or abnormal sexual activities.” These books “suggested to the minds of the regular customers ‘thoughts of a most impure and libidinous character’” and were “’hard pornography’.”[viii]

One judge described the books’ contents as such:

Their contents included written descriptions or pictorial representations of sexual activity, ranging from normal sexual intercourse between male and female to such deviant sexual behaviour as intercourse per oram, intercourse per anum, acts between males, acts between females, and sexual play between or within groups of persons; there were also in the said books some instances of sadistic and violent behaviour.[ix]

It is difficult to see how Yee’s image even comes close to this. Given how the obscenity law has almost always been used against pornographic material, the prosecution’s case is an attempt to expand the definition of Singapore’s obscenity law to cover one of the following: a flippant attitude towards sexual acts, disrespectful actions towards deceased persons or the encouragement of anal sex (which is not explicitly stated by the prosecution).

The danger of vague laws and arbitrary prosecution

The problem with the prosecution’s attempt to expand the definition of the obscenity law is ultimately associated with the problem of vague laws. The prosecution’s case assumes that the law on obscenity is vague and therefore can be expanded. A court decision that supports this interpretation nullifies the role of Parliament and case law in determining the meaning of Singapore’s laws.

In other words, the law is not vague at all, it is very clear—pornography not political satire is its object. To expand the law, one must disregard Parliamentary intent and the case law, both of which do not support the expanded interpretation.

Minster for Information and the Arts, George Yeo, said in a parliamentary speech that the “main target” of this law is “those who seek profit from distributing obscene publications”. Since its conception, this law has almost always used against peddlers of pornography both in Singapore and other common law jurisdictions. To expand the law now to include Yee’s non-pornographic image would be to legislate from the bench. If there is a problem with the image, it is Parliament that should criminalise it, not the judge.

The problem with the expanded interpretation then is that it would create an immensely vague standard. What exactly was Yee’s crime? Even the prosecution cannot explain it well. Before the prosecution levelled the charge against Yee, did anyone even think that his image violated the obscenity law?[x]

If the prosecution succeeds, individuals may no longer be assured of what conduct is punishable and what is not. This fear of unpredictable prosecution creates a chilling effect on free speech, stifles debate and benefits no one except those in power. This arbitrary prosecution should therefore not be sanctioned. It would give the state too much discretion and this increases the potential for abuse of power through selective enforcement.

At the end of the day, perhaps the question we should ask is whether the average Singaporean on the MRT with Internet access will accept the absurdity of attempting to apply a pornography law against political satire.

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Footnotes:

[i] In Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791, the Court of Appeal found Jeyaretnam’s words to be an imputation of fact, not a comment that might allow him to utilise the defence of fair comment. According to the defence, Jeyaretnam “asked three questions in his speech: (a) why were people not told, before the inquest, that Teh had committed suicide? (b) why was no inquiry set up to find out how Teh obtained the poison with which he killed himself? and (c) did the respondent reply to Teh’s letter, and, if so, in what terms? Nowhere in the appellant’s speech did the appellant expressly allege that the respondent had procured or culpably failed to prevent Teh’s suicide.” But the Court rejected this, finding instead: “In our judgment, to a reasonable listener present at the rally, and watching and listening to the appellant delivering his speech, the words complained of bore the following meaning: that there was a “cover-up” of the circumstances of Teh’s death, and particularly, his ways and means of obtaining the poison with which he killed himself; that the Government was not such an open and honest government as the respondent and his party claimed to be; that on the day before Teh died, he had sought advice from the respondent; that the respondent must have advised him and that advice had something to do with his death, because following that, Teh committed suicide by taking poison; that Teh was allowed to have access to the poison; that the respondent was involved in Teh obtaining the poison, and that Teh was thereby allowed to escape a full investigation which would have resulted in findings discreditable or embarrassing to the respondent as Prime Minister and leader of his party and of the Government of Singapore.”

[ii] In Public Prosecutor v Yue Mun Yew Gary [2013] 1 SLR 39, the High Court considered the following words, taken in the context of a video of the late President Assad being shot, an intention to incite violence: “If their political downfall is not within grasp, we should know what and how next to escalate it… I am sure we all want the physical removal of any influence of the incumbents from the face of the earth.” The conviction of the defendant under the Sedition Act was upheld on the grounds that his behaviour “has the potential to be injurious to public order and safety” even if it did not succeed in causing violence.  The question of the extent of this potential was not given sufficient consideration.

[iii] Alfred Dodwell, Chong Jia Hao and Ervin Tan, Public Prosecutor v Amos Yee Pang Sang: Defence Closing Submission, p. 30.

[iv] Mohamed Ibrahim v Public Prosecutor (1963) 29 MU 289.

[v] Ibid.

[vi] Citing Knuller (publishing, Printing and Promotions) Ltd. and Others v Director of Public Prosecutions [1973] 1 AC 435 (House of Lords), the defence points out that the judge did not find the two to be equivalent—that is, being led morally astray is not equivalent to becoming depraved or corrupt. The judge’s reasoning is as follows: “I cannot agree that that is right. “Corrupt” is a strong word and the jury ought to be reminded of that. We may regret that we live in a permissive society but I doubt whether even the most staunch defender of a better age would maintain that all or even most of those who have at one time or in one way or another been led astray morally have thereby become depraved or corrupt.”

[vii] Director Of Public Prosecutions and Whyte and Another [1972] 3 WLR 410 (House of Lords).

[viii] Defence Closing Submission, p.19.

[ix] Defence Closing Submission, p. 20.

[x] Although personal ignorance of the law is usually not accepted as a valid defense (ignorantia juris non excusat), the fact that no one could have anticipated that Yee’s image violated the obscenity law suggests that this is an attempt by the state to enforce laws arbitrarily.