Is obscenity in the eye of the public?

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In November 1994, Takashi Asai — president of Uplink, a movie distribution and publishing house — published a Japanese edition of “Mapplethorpe,” a collection of 260 black-and-white photographs by the U.S. photographer Robert Mapplethorpe, who died in 1989 of AIDS.

The photobook, originally published in English by Random House, is included in the collection of the National Diet Library and can easily be purchased in Japan via Internet bookshops. When it fell into the hands of Narita airport customs officials, though, the book was branded “obscene” and confiscated.

In 1999 Asai had taken a copy of the Japanese edition to the United States and Canada to show its printing quality to publishers there during business talks. Returning through Narita airport that September, he submitted the photobook — which contains some photographs showing male genitals — to customs officers.

“I thought there would be no problems because the book had been on the Japanese market for several years and no police action had ever been taken against it,” Asai explains. But the photobook was confiscated. Later, the customs authorities notified Asai that the photobook could not be brought into the country, citing Article 21 of the Customs Tariff Law, which says that material that “harms public morals” cannot be imported.

To bring in obscene material from abroad is a crime under the article. Article 175 of the Penal Code makes it a crime to sell or exhibit such material in Japan.

The customs authorities’ decision marked the start of an ongoing legal saga.

Asai filed complaints with the customs authorities twice. These were not accepted and Asai eventually filed a lawsuit with the Tokyo District Court.

Surprisingly, the district court ruled in favor of Asai in what the publisher describes as an “epoch-making” decision. However, the Tokyo High Court later reversed the ruling. Now the case is in the Supreme Court.

The district court had ordered the customs authorities to reverse their decision that the book could not be brought into Japan. Even if something is found obscene, the court stated in its ruling of January 2002, there is no need to control it if it does not harm public morals. Such, it said, were the circumstances of Asai’s case.

Handing down its decision, the court said that given the importance of freedom of expression, the Customs Tariff Law should be applied with restraint.

Additionally, it noted that Asai’s act of bringing a copy of the photobook into Japan in no way altered the pre-existing situation — namely that the book was already available in this country. Indeed, more than 900 copies of the photobook had been sold by the time Asai received the customs authorities’ notification. Total sales since 1994 are about 1,200 copies.

“In previous applications of the law, material that harms public morals has been equated with obscene material. What is epoch-making about the district court ruling is that it broke the direct link between obscene material and material that harms public morals,” Asai said.

“Say, there are art books that contain obscene works but are not sold at places like a convenience store. In such a case, one cannot say that they harm public morals.

“The ruling means that art can be obscene.”

The customs authorities naturally appealed the district court ruling to the Tokyo High Court. On March 27 this year, the high court ruled in their favor.

Issuing its decision, the high court upheld the customary legal formula that if something is found obscene it must be regarded as harmful to public morals.

The ruling deemed the 20 photographs in question to be obscene because they show male genitals positioned centrally and prominently. Therefore they should be regarded as printed material that harms public morals and prohibited from entering Japan.

Although he lost in the appellate trial, Asai highlights part of the ruling that touched on his contention that graphic images of genitals and sexual acts are now accessible by way of the Internet. The ruling said that the general public finds these images unacceptable.

“Through the trials, I have learned that judges use the tolerance levels of the general public when formulating their rulings in obscenity trials. This means that if people’s perception changes, the attitude of authorities will also change,” Asai says.

He thinks that art museums and galleries are influential in determining the general public’s tolerance of obscenity. He notes, for example, that when Mapplethorpe’s works are exhibited in Japan, his photographs of male genitalia are invariably excluded.

As an attempt to break such self-censorship, Asai plans to exhibit copies of “Mapplethorpe” at his Uplink Gallery, June 10 through July 6. Gallery goers will be encouraged to record their opinions about the photos in a visitors book, and if a majority of the responses are favorable, Asai plans to submit them in support of his case before the Supreme Court.

He points out that “Mapplethorpe” is a comprehensive collection of the photographer’s black-and-white photos, including not only works of an erotic or graphic nature, but also portraits and studies of flowers.

“I would like to see an end to a situation in which one has to exercise self-censorship because artistic works contain images of genitalia,” Asai says.

“But I take issue with the fact that material that is almost pornography is sold at convenience stores. We need some sort of moral restraint on this kind of thing. It shouldn’t be that anything is permissible if it makes money.”