MOKGORO J
[34]
That principle has been applied to protect the rights of recipients to have access to sexually
explicit messages as well. In Board of Education v Pico, the Court upheld the right of students
to resist removal of books alleged by the board of education to be indecent and obscene from a
school library, on the basis, inter alia, of students’ right to be exposed to information contained
in proscribed books.51 And in Stanley v Georgia, the Court upheld individuals’ right to consume
obscene materials in their own homes. The Court noted that the “right to receive information and
ideas, regardless of their social worth [is] fundamental to our free society.”52
[35]
I therefore hold that sexually expressive speech is subject to the protection of section 15
of the Constitution, and that such protection must necessarily extend to the right to possess such
material. That, of course, does not end the inquiry: it remains to be seen whether those parties
defending the 1967 Act can carry the burden of showing that the limitations the statute places upon
51
457 U.S. 853, 868 (1982).
52
394 U.S. 557, 564 (1969). Without necessarily endorsing the analysis adopted by the United States Supreme
Court, it is interesting to note the variety of other circumstances under which a right to receive information has
been upheld. See, e.g., Consolidated Edison Co. v Public Service Commission, 447 U.S. 530 (1980) (ban on
the inclusion of pro-nuclear power materials with power company’s monthly bills held invalid, on basis of the First
Amendment's role in affording the public access to discussion, debate, information, and ideas); Central Hudson
Gas & Electric Corp. v Public Service Commission, 447 U.S. 557 (1980) (upholding public’s right to access to
advertising); First National Bank v Bellotti, 435 U.S. 765 (1978) (spending corporate funds to communicate to
the public about voting on referenda issues); Linmark Associates, Inc. v Township of Willingboro, 431 U.S. 85
(1977) (right to receive information about property for sale through "For Sale" or "Sold" signs on residential
property); Carey v Population Services International, 431 U.S. 678, 701-702 (1977) (right to receive
advertising about contraceptives); Bates v State Bar of Arizona, 433 U.S. 350, 384 (1977) (right to receive
information about availability and terms of legal services); Virginia State Board of Pharmacy v Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 757 (1976) (right to receive advertising about prescription drug prices);
Griswold v Connecticut, 381 U.S. 479, 482 (1965) (right to receive information about contraception); Marsh
v Alabama, 326 U.S. 501 (1946) (right to receive religious literature on streets of a company-owned town);
Thomas v Collins, 323 U.S. 516 (1945) (rights of workers to hear labour organiser); Martin v City of Struthers,
319 U.S. 141 (1943) (right to receive handbills).
19
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