Gilding the Lily

1. What is Pornography?

“The term “pornography” is used in all…different ways” of defining that material which is sexually explicit “in everyday discourse and debate” Since what is viewed as sexually explicit can vary from culture to culture and over time, “sexually explicit” functions as a kind of indexical term. “For the fact that “pornography” has different senses can have two very unfortunate consequences if these differences are not clearly noted and kept in mind: it can make it seem that there is disagreement when there is not; and it can obscure the real nature of the disagreement when there is.” (sec. 1, par. 15)

2. The shape of the traditional pornography debate

2.1 Conservative arguments for censorship
“According to conservatives, the state is justified in using its coercive power to uphold and enforce a community’s moral convictions and to prevent citizens from engaging in activities that offend prevailing community standards of morality and decency.This position is sometimes called ‘legal moralism’. [Furthermore] Governments also have a responsibility to prevent citizens from harming themselves…entitl[ing] [the state] to interfere with the freedom of mentally competent adults against their will for their own good…often called ‘legal paternalism’.” (sec. 2:2.1, par. 3)

“Conservatives therefore think that it is entirely legitimate for the state to prohibit consenting adults from publishing and viewing pornography, even in private, in order to protect the moral health of would-be consumers and of society as a whole.” (sec. 2:2.1, par. 4)

2.2 The traditional liberal defence of a right to pornography

“Traditional liberal defenders of pornography famously disagree, rejecting both the principle of legal moralism and the principle of legal paternalism, at least where consenting adults are concerned. This is not to say that liberal defenders of pornography necessarily approve of it…But this does not mean that it should not be protected-quite the opposite. A vital principle is at stake for liberals in the debate over pornography and censorship. The principle is that mentally competent adults must not be prevented from expressing their own convictions, or from indulging their own private tastes, simply on the grounds that, in the opinion of others, those convictions or tastes are mistaken, offensive or unworthy. The underlying liberal sentiment here is nicely captured in the famous adage (often attributed to the French philosopher, Voltaire):”I disapprove of what you say, but I will defend to the death your right to say it.”" (sec. 2:2.2, par.1)

“The only grounds that liberals typically regard as providing a legitimate reason for state restrictions on individual freedom is in order to prevent harm to others…the burden of proof is always firmly on those who argue for censorship to demonstrate that the speech or conduct in question causes significant harm to others. It must either be shown to directly cause actual physical violence to others (e.g., murder, rape, assault, battery), on a narrower understanding of “harm”; or to deliberately or negligently violate sufficiently important interests or rights of others, on a broader, interest-based conception of “harm”.” (sec. 2:2.2, par. 2)

Liberals have traditionally defended a right to pornography on three main grounds…Firstly, on the grounds of freedom of speech or expression, which protects the freedom of individuals (in this case, pornographers) to express their opinions and to communicate those opinions to others, however mistaken, disagreeable or offensive others may find them…[Secondly] on the grounds of a right to privacy (or “moral independence”, as one prominent liberal defender of pornography calls it), which protects a sphere of private activity in which individuals can explore and indulge their own personal tastes and convictions, free from the threat of coercive pressure or interference by the state and other individuals…[third] pornography is comparatively harmless. Neither the expression of pornographic opinions, nor the indulging of a private taste for pornography, causes significant harm to others, in the relevant sense of ‘harm’ (i.e., crimes of physical violence or other significant wrongful rights-violations). Hence, the publication and voluntary private consumption of pornography is none of the state’s business.” (sec. 2:2.2, par. 3,6,8)

“[Ronald] Dworkin [and] [Joel] Feinberg thinks that the voluntary private consumption of pornography does not cause harm to others. Hence, wholesale criminal prohibitions on the publication and private voluntary consumption of pornography cannot be justified. But the public display of pornography may nonetheless constitute an “offensive nuisance” to non-consenting adults who are involuntarily exposed to it…Since the harm-or rather, pseudo-harm-of pornography is the offense it may cause unwitting viewers involuntarily exposed to it, the solution is to restrict its exhibition to domains where such involuntary exposure will not occur…Such restrictions on the public display of pornography would not amount to censorship, for pornographers are still free to publish and distribute their opinions. Nor would they violate consumers’ right to privacy, for pornography would be freely available for willing consumers to view in private.” (sec. 2:2.2.2, par. 2)

“Liberal defenders of the right to pornography may thus allow that restrictions on its public display may be justified. But only if pornography can reliably be shown to cause significant harm to people other than those who voluntarily consume it will there be a legitimate case for prohibiting its voluntary private consumption. When an individual’s private activities cause harm to others then they become no longer merely a private matter, but of legitimate public interest; and the state may be justified in regulating them.” (sec. 2:2.2.2, par. 3)

“Liberals also have technical concerns about how censorship laws might work in practice…arguing that even if pornography does cause some harm to others, the risks involved in censoring it are too great. They point to the difficulties involved in formulating a legal definition of ‘pornography’ that will be sufficiently precise to minimize the danger that censorship laws targeting pornography will be used (intentionally or unintentionally) to censor other unpopular material, including valuable literary, artistic and political works. Censoring pornography may thus place us on a dangerous “slippery slope” to further censorship of other material.” (sec. 2:2.2.3, par.1)

4. Feminist approaches

4.1 Feminist arguments against pornography
“Unlike moral conservatives…object[ion] to pornography on the grounds of…obscenity…and its corrosive effect on the conservative way of life, the primary focus of the feminist objection to pornography is on the central role that pornography is thought to play in the exploitation and oppression of women.” (sec. 4:4.1, par. 1)

“This concern is reflected in the distinctive way anti-pornography feminists tend to define “pornography”…draw a more fine-grained distinction within the class of sexually explicit materials, between “pornography”…and “erotica”…”Erotica” is generally defined as sexually explicit material premised on equality, which depicts women as genuinely equal and consenting participants in sexual encounters. “Pornography”, in contrast, is typically defined as that subset of sexually explicit material that depicts women being coerced, abused, dominated or degraded in such a way as to endorse their subordination.” (sec. 4:4.1, par. 2)

“In 1983…feminists…Catharine MacKinnon and Andrea Dworkin, drafted an anti-pornography ordinance at the behest of the Minneapolis Council…[which] sought civil remedies that would enable women who are harmed in the making of pornography, or as a result of its consumption, to sue for a future ban on sexually explicit material demonstrated to be harmful and to collect damages from pornographers for provable harm done by that material…[T]he ordinance was significant…for reconceptualizing the question of pornography…not as an issue about obscenity…as it had…tended to be viewed in legal…contexts…but as an issue about the civil rights of women…[and] defined “pornography” as a civil rights violation, as a systematic practice of sexual discrimination that violates women’s right to equality.” (sec. 4:4.1, par. 3,4)

“Dworkin and MacKinnon allow that sexually explicit material that treats men, children or transsexuals in sexually dehumanising or subordinating ways also counts as pornography.” (sec. 4:4.1, par. 5)

“The Dworkin-MacKinnon definition has two parts or stages. The first part of the definition defines “pornography” broadly in terms of a certain functional role or, as MacKinnon puts it, in terms of “what it does”…The second part of the definition, the content list (i)-(viii), goes on to list of the sorts of sexually explicit material that MacKinnon and Dworkin think in fact functions to subordinate women, as revealed by the testimonial, experimental, social and clinical evidence. The content list aims to be sufficiently precise so as to minimize the likelihood of legislation against pornography…”(sec. 4:4.1, par. 6)

“The harms that most concern anti-pornography feminists fall into two broad categories: 1) coercion and exploitation of women actors in the production of pornography; and 2) harms to women, both as individuals and as a group, resulting from the consumption of pornography.” (sec. 4:4.1, par. 8 )

“One particularly graphic example of the first sort of harm is documented in the book Ordeal, written by Linda Marchiano who starred as ‘Linda Lovelace’ in the famous pornographic film ‘Deep Throat’. In Ordeal, Marchiano tells of how she was abducted, hypnotized, drugged, beaten and tortured in order to perform her starring role. Marchiano was one of a number of women who testified about their experience of the harm caused by pornography at the Minneapolis hearings into pornography in 1983…much of what was done to Marchiano (the abduction, the beatings and the torture) are criminal offences in their own right. Many, both liberals and feminists, think that since these physical assaults should not be allowed, enduring pornographic representations of these crimes that cause further harm to the victim’s interests should not be permitted to be distributed or consumed either.” (sec. 4:4.1, par. 9)

“[M]any anti-pornography feminists are concerned that there is an important sense in which the ‘choice’ to participate in the making of pornography may not be a genuinely free one for many of the women who perform in it, who often come from underprivileged socio-economic backgrounds and who have few alternative options for making a living. Under these circumstances, there may be an important sense in which the choice to perform in pornography is ‘coerced’, insofar as the women would not have chosen to perform in pornography had other reasonable options been available to them…MacKinnon puts the point graphically: pornography is a public institution of sexual slavery, trafficking in vulnerable women and children, and profiting from their suffering and subjugation.” (sec. 4:4.1, par. 10)

“Some of the women who perform in pornography vigorously reject the claim that they are exploited…they argue, the decision to become a porn star was a genuinely autonomous one…[and] regard the claim that they are victims of exploitation as offensively patronizing and paternalistic…and portraying the women who act in pornography as hapless dupes of patriarchy…[rather than] fully autonomous and intelligent citizens pursuing a perfectly valid and rewarding career of their own choosing. Banning pornography, they argue, would constitute unjustified paternalistic interference with their right to pursue their career of choice.”
(sec. 4:4.1, par. 11)

“Second [category of harm]…point to a range of harms to women that result from the consumption of pornography…These may include, but are not limited to, pornography’s role as a cause of violent sexual crime…[argiung] pornography is speech that incites sexual violence, and prohibition of such speech as incites sexual violence is justified…to protect the physical security and bodily integrity of individuals.” (sec. 4:4.1, par.13)

“Other…arguments focus…on the broader role pornographic representations may play in harming other of women’s significant interests…suggest[ing] that pornography can be viewed as a sort of false advertising about women and sexuality, or as…speech that defames women as a group, causing corresponding harm to their reputation, credibility, opportunities and income expectations.” (sec. 4:4.1, par. 14)

“Other feminist arguments focus on the related role pornography may play in restricting women’s autonomy, by reproducing and reinforcing a dominant public perception of the nature of women and sexuality that prevents women from articulating and exploring their own conceptions of sexuality…[This argument] draws on the work of the prominent liberal philosopher, John Rawls, to suggest that regulation of pornography is justified…[as] self-interested individuals in the original position would not agree to basic social institutions that “asymmetrically either forced or gave strong incentives to members of one sex to become sex objects for the other.” (sec. 4:4.1, par. 14,15)

“According to MacKinnon, pornography harms women in a very special and serious way:…subordinates women by sexualising their inequality. Pornography both expresses the view that women exist primarily as objects for men’s sexual gratification…and it propagates this view, by conditioning consumers to regard women’s subordination as a sexy, natural and legitimate feature of normal heterosexual relations. Pornography “sexualises rape, battery, sexual harassment, prostitution and child sexual abuse, it thereby celebrates, promotes, authorizes and legitimises them”…rape, harassment and other forms of oppression come to be seen simply as sex…pornography helps to form, perpetuate, and manifests itself not simply in crimes of sexual violence against women, but in discrimination against women more generally…Pornography “institutionalizes the sexuality of male supremacy…” (sec. 4:4.1, par. 16,17)

For MacKinnon, pornography is not a “symptom or side-effect of other material and social conditions that lie at the root of women’s subordinate position in society…Rather, it is a central cause…”(sec. 4:4.1, par. 22)

“When Lara placed a self-portrait taken at age fourteen on deviantART, she never expected it to be stolen by TVX Films and placed on the cover of the DVD porno “Body Magic.” Lara asked the President of TVX Films to remove her photo and compensate her for the theft. He responded with the following email: “…We have checked out your name and its not like its a house whole name…They are remaking the cover as we speak so your ten seconds of fame will soon come to an end. As for compensation; Your silly!”–CAREY GREENBERG-BERGER

“One novel and strategically ingenious feature of MacKinnon’s argument against pornography…is her conceptualisation of the harm of pornography as the violation of women’s civil rights…a harm that most liberals have special reason for taking very seriously…On this broader, interest- or rights-based interpretation of the harm principle, any speech or conduct that wilfully or negligently interferes with important interests or rights of others is harmful conduct…[in which] the state is [then] entitled to pass laws against conduct that deliberately or negligently interferes with the rights of others, just so long as the rights-violation is sufficiently serious and the harm cannot effectively be prevented by other…means (for example, through public education or debate).” (sec. 4:4.1 par. 23)

Though his version of the harm principle is relative given what right the individual does have; this subject is still a source of much ongoing debate.

4.2 Feminist arguments against legal regulation

“Some feminists [however] argue that pornography is an important form of sexual expression that does not harm women, and may even benefit them by liberating women and women’s sexuality from the oppressive shackles of tradition and sexual conservatism…pornography may have a vital role to play in challenging traditional views about femininity and female sexuality and in empowering women, both homosexual and heterosexual, to shape their own identities as sexual beings. (Note that material that benefits women ought to count as erotica, rather than pornography, on MacKinnon’s definition…if there is substantive disagreement between [the two feminist arguments] it will be about whether there really is any sexually explicit material that is beneficial).” (sec 4:4.2, par. 1)

“There are also a significant number of feminists who object to pornography, or to certain forms of it, on the grounds that it harms women, but who do not think that regulating or banning it is the most desirable or effective way to remedy the harms that pornography causes…[N]onetheless, [they] share some liberal concerns about using the…instrument of the law in the quest to redress harms, especially in light of the way in which the law has frequently been used to oppress women, or where laws enacted with the best of intentions have nonetheless had this unintended effect. Censorship, they think, may well cause more harm to women than it removes. They recommend more speech-education, protest, picketing, satire and public debate-rather than censorship or other forms of legal regulation, as less dangerous and more effective tools for raising public consciousness and effecting the desired attitudinal and cultural change.” (sec. 4:4.2, par. 2)

Indeed, these anti-pornography (in the sense that they think material that degrades women is objectionable), but also anti-censorship feminists posed concerns about anti-pornograpy legislation (especially in regards to the one proposed by MacKinnon and Dworkin) including: “the political dangers of feminists aligning themselves with the conservative, evangelical right; the possibility of the legislation discriminating against minority forms of sexuality (e.g., lesbianism); interference with women’s freedom to choose to produce and perform in pornography; perpetuating traditional ideas that sex is bad for women; and diverting attention and resources away from more important immediate efforts to bring an end to violence against women.” (sec. 4:4.2, par. 3)

5.1 Does pornography cause harm to others?
“Liberal defenders of pornography…remain unconvinced that there is reliable evidence to show that pornography is a cause of rape or other sexual crime.” If there were reliable evidence, there would be “a very strong liberal case for prohibiting it.” Ronald Dworkin writes, “…no reputable study has concluded that pornography is a significant cause of sexual crime: many of them conclude, on the contrary, that the causes of violent personality lie mainly in childhood, before exposure to pornography can have had any effect, and that desire for pornography is a symptom rather than a cause of deviance.” (sec. 5:5.1, par. 1)

“The question of whether pornography causes harm raises tricky conceptual issues…The causal connection between consumption of pornography and violent sexual crime, if there is one, is unlikely to be a simple one…However, we might agree with Feinberg, and yet think that pornography might still be a cause of rape. Consumption of pornography might cause rape by making it more likely that those who are already inclined to rape will actually rape, thereby increasing the overall incidence of rape. Of course, pornography may not be the only cause of rape or other violent sexual crime. The contributing causes of violence against women are likely to be numerous and connected in complex ways…Consumption of pornography may, on its own, be neither necessary nor sufficient for violent sexual crime; yet it might still be a cause of violent sexual crime…if it increases the incidence of them.” (sec. 5:5.1, par. 2)

“According to [Ronald] Dworkin, the argument for anti-pornography legislation on the grounds that pornography subordinates women [MacKinnon's version of the rights-based arguments for anti-pornography legislation] rests on the “frightening principle that considerations of equality require that some people not be free to express their tastes or convictions or preferences anywhere.”" (sec. 5:5.2, par. 4)

“Note that [Ronald]Dworkin…misconstrues…MacKinnon’s argument as a version of the old moralistic argument that objects to pornography on grounds of its offensiveness.” However, MacKinnon’s argument “is not that pornography should be regulated because it expresses opinions that are offensive to feminists. Rather, it should be regulated because, offensive or not, it contributes significantly to a regime of sexual inequality.” (sec. 5:5.2, par. 5)

[Ronald] Dworkin thinks there is a confusion of positive and negative liberty with regards to freedom of speech. Dworkin’s thought rests on the “unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say…These are obviously not rights that any society can recognise or enforce. Creationists, flat-earthers, and bigots, for example, are ridiculed in many parts of America now…But, Dworkin suggests, that we should not think that this violates their right to freedom of speech: e.g., that creationists have a legitimate claim on the state to ban the publication of books or videos recommending the theory of evolution on the grounds that these may cause the speech of creationists to receive an unsympathetic or dismissive reception. Dworkin concedes that the right to freedom of speech, if it is to be meaningful, requires that everyone has some opportunity to have their ideas heard.” (sec. 5:5.2, par. 10,11)

“[C]laims in the face of Dworkin’s response, argu[e] that freedom of speech (even negative freedom of speech) requires more than simply being free to produce and distribute word-like sounds and symbols. It also requires at least that would-be hearers are not prevented from comprehending the intended meaning of those sounds and scrawls-otherwise there is not free speech, merely the freedom to produce and distribute word-like sounds and scrawls.” Conversely, the makers of the claims argue “that the traditional liberal conception of free speech, and of the right to free speech, fails to pay sufficient attention to the way language works; and, in particular, to the way in which what words mean-and so what it is possible for speakers to say or communicate-depends on social context, a context that pornography may help to shape and perpetuate.” (sec. 5:5.2, par. 12)

What role should the state play in protecting and promoting values such as autonomy and equality, given the undertaking of reconciling the ideals and values of liberals, conservatives, and feminists and their respective sub-divisioning within their own camps, accounts for much of the ongoing debate of whether or not government can legally prohibit citizens from publishing or viewing pornography.

Citation______________________________________________________
West, Caroline. “Pornography and Censorship.” Stanford Encyclopedia of Philosophy. Ed. Edward N. Zalta. 13 July 2005. Stanford University. 09 Nov. 2007
http://plato.stanford.edu/entries/pornography-censorship/