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The Free Speech Argument Against Pornography

Published online by Cambridge University Press:  01 January 2020

Caroline West
Caroline West*
Affiliation:
The University of Sydney, SydneyNSW 2006, Australia
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Extract

Pornography may harm women in a variety of ways. But among the harms that pornography has sometimes been alleged to cause is a surprising one: it violates women's right to freedom of speech. Pornography ‘silences’ women; and laws against pornography are justified (among other reasons) in order to stop pornographers from expressing themselves in a way that prevents women from speaking. Or so claims Catherine Mackinnon.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 33 , Issue 3 , September 2003 , pp. 391 - 422
Copyright
Copyright © The Authors 2003

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References

1 I have benefited greatly from discussions with philosophers in the Philosophy Program at the Research School of Social Sciences at The Australian National University, from audiences at La Trobe University, The University of Melbourne and at a recent Australasian Association of Philosophy conference, and from comments from an editor and two anonymous referees for the Canadian Journal of Philosophy. Special thanks are due to Daniel Nolan and David Braddon-Mitchell for extensive comments on previous versions of this paper.

2 See Mackinnon, Catherine ‘Not a Moral Issue’ and ‘Francis Biddle's Sister: Pornography, Civil Rights, and Speech,’ both in Feminism Unmodified (Cambridge, MA Harvard University Press 1987) 146-62,163-97Google Scholar; and Mackinnon, Catherine ‘Defamation and Discrimination’ in Only Words (London: Harper Collins 1994) 1-28Google Scholar. Mackinnon herself favors civil, rather than criminal, legislation against pornography. The sort of civil legislation she advocates would enable individuals to sue in civil court both to put a future ban on the publication of specified sexually explicit material and to collect damages for the provable harm that its publication had done.

3 For the claim that the silencing argument rests on a ‘dangerous confusion,’ see Dworkin, Ronald ‘Two Concepts of Liberty’ in Isaiah Berlin: A Celebration, Edna, and Margalit, Avishai eds. (London: Hogarth Press 1991), 103 and 108Google Scholar. Dworkin, repeats this claim, along with the additional charge of absurdity, in ‘Women and Pornography,’ The New York Review of Books 40.17 (1993) 36-42, at 40Google Scholar.

4 Michelman, Frank I. ‘Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation,’ Tennessee Law Review 56 (1989) 291-319, 296n.l3Google Scholar. However, this does not defeat the silencing argument in Michelman's view.

5 Ibid., 295

6 Ibid., 296n.l3

7 Dworkin, ‘Women and Pornography,’ 38Google Scholar

8 Ibid., 40

9 Green, Leslie ‘Pornographizing, Subordinating and Silencing’ in Post, Robert C. ed., Censorship and Silencing: Practices of Cultural Regulation (Los Angeles: The Getty Research Institute 1998) 285-311, at 303Google Scholar

10 Jacobsen, Daniel ‘Freedom of Speech Acts? A Response to Langton,’ Philosophy & Public Affairs 24 (1995) 64-79, 76CrossRefGoogle Scholar

11 Dworkin, ‘Two Concepts of Liberty,’ 101Google Scholar

12 It may be, for example, that even if it turns out that consumption of pornography does in fact violate women's right to freedom of speech, some forms of anti-pornography legislation (e.g. wholesale criminal prohibitions on the production or consumption of pornography) are not justified: since the overall costs of legislation of this sort are likely to be too great and the benefits too small or uncertain. Other forms of legislation or State action (such as restrictions on the distribution, sale or display of pornography; or civil legislation of the sort that Mackinnon proposes; or punitive taxes on pornography to discourage its production and consumption; or public education campaigns about pornography's harms) may turn out to be permissible or preferable. Or they may not. These are important further questions, but I will not answer them here.

13 The silencing argument cannot be dismissed, as more orthodox harm-based feminist arguments against pornography have been, on the grounds that there is insufficient evidence of a causal connection between the consumption of pornography and crimes of sexual violence against women or that pornographers’ right to free speech takes precedence over women's right to equality or autonomy. Pornography could no longer be defended on grounds of the supremacy of the right to free speech alone, if there were a legitimate sense in which pornography deprived women of their freedom of speech.

14 See, for example, Mackinnon, Feminism Unmodified, esp. 155-6Google Scholar.

15 Two notable exceptions here are Jennifer Hornsby and Rae Langton, both of whom draw on J.L. Austin's speech-act theory to distinguish different senses in which pornography might silence women. See, for example, Hornsby, Jennifer ‘Speech Acts and Pornography,’ Women's Philosophy Review 10 (1993) 38-45CrossRefGoogle Scholar, reprinted with a postscript in Dwyer, Susan ed., The Problem of Pornography (Belmont, CA: Wadsworth 1995) 220-32Google Scholar; Langton, Rae ‘Speech Acts and Unspeakable Acts,’ Philosophy and Public Affairs 22 (1993) 293-330Google Scholar; and Hornsby, Jennifer and Langton, Rae ‘Free Speech and Illocution,’ Legal Theory 4 (1998) 21-37CrossRefGoogle Scholar. Hornsby and Langton, however, take their distinctions to bear on the question of what free speech requires, rather than on what the right to free speech requires; and they concede that liberais will be reluctant to accept that the right to free speech includes ‘a right to another's grasping what [the speaker] means to say.’ In their view, however, this just goes to show ‘the limitations of a libertarian, negative liberty defense of free speech’ (Hornsby and Langton, ‘Free Speech and Illocution,’ 36). If I am right, liberais need not, and indeed should not, accept the narrow libertarian view of the right to free speech.

16 For Andrea Dworkin and Mackinnon's definition see Dworkin, Andrea and Mackinnon, Catherine A. Pornography and Civil Rights: A New Day for Women's Equality (Minneapolis, MN: Organizing Against Pornography 1988), 138-9Google Scholar; and Mackinnon, ‘Francis Biddle's Sister,’ 176.

17 This definition of pornography is, of course, somewhat rough and ready as it stands. There will be some sexually explicit material that harms women that we may not want to count as pornography — false anatomical representations of women in medical textbooks, for example. A complete definition of pornography would thus need to say more. But this rough, working definition will be good enough for present purposes.

18 See Mackinnon, ‘Pornography, Civil Rights and Speech,’ in Itzin, Catherine ed., Pornography: Women, Violence, and Civil Liberties (Oxford: Oxford University Press 1992), 459Google Scholar.

19 Mackinnon, ‘Francis Biddle's Sister,’ 171Google Scholar

20 Mackinnon, ‘Pornography, Civil Rights and Speech,’ 483-4Google Scholar

21 This is an attitude commonly expressed in letters to the editor in pornographic magazines.

22 Mackinnon, Only Words, 4,5 and 10

23 I borrow cases 1 and 3, slightly amended, from Langton, ‘Speech Acts and Unspeakable Acts,’ 320-1. Langton suggests that there are two ways in which a woman's utterance of ‘no’ can fall. I think that there is a third, which I outline in case 2.

24 Langton, ‘Speech Acts and Unspeakable Acts,’ 325. Of course, sometimes women who utter ‘no’ may not mean it. In which case, there will be no fallure of comprehension here. My focus in this paper is on the possible cases where women who sincerely utter the word ‘no’ are deprived of the standard means of communicating the intended idea of refusal. But the silencing argument gives us as much reason for concern about women who play the game of invitation through feigned résistance as it will give us reason for concern about pornography which depicts women playing such games. For playing that game may communicate to men the ideas that violate other women's right to freedom of speech (those who use the word ‘no’ to express genuine refusal) in just the way that pornography may.

25 There is another possibility: The word ‘no’ is taken to literally mean no, but the hearer thinks that the word is not being used to express anything. It is neither being used to communicate acceptance, nor is it being used to express refusal. The hearer may believe that the woman utters the word ‘no’ because considerations of modesty, or deniability, or self-acceptance, or self-deception, or the possibility of guilt-free sex, require that she produce this token utterance, though she intends to communicate nothing to him by uttering it. He might, for example, believe that she utters ‘no’ so she can say to others (or herself) after the event that she said ‘no.’ This third possibility is perhaps not well described as a case where ‘no’ means yes. Nonetheless, it is a situation in which a woman's sincere utterance of ‘no’ in a sexual context falls to communicate the idea of refusal. It would therefore count as a case of ‘scrambling’ in my sense.

26 See, for example, Langton, Rae and West, Caroline ‘Scorekeeping in a Pornographic Language Game,’ Australasian Journal of Philosophy 77 (1999) 309-19CrossRefGoogle Scholar; Rae Langton, ‘Speech Acts and Unspeakable Acts’; and Jennifer Hornsby, ‘Speech Acts and Pornography.’ The three senses of silencing distinguished in this section correspond roughly to Langton's ‘locutionary silence,’ ‘perlocutionary frustration,’ and ‘illocutionary disablement’ respectively.

27 It is crucial, of course, that consumers do not merely take the translations to apply to the utterances of fictional women in pornography, but draw on it in translating the utterances of actual women in the real world. The empirical evidence strongly suggests that consumers do acquire a range of beliefs about real women from pornography. The question of whether this amounts to evidence of the phenomenon of misunderstanding (or ‘scrambling’ as I will later call it) will be discussed in conclusion.

28 In the discussion that follows, I will be granting liberals that a broadly deontological approach to free speech is correct. On this approach, freedom of speech is a value that should be honored; and interfering with the free speech of individuals is a serious wrong in itself, even in order to promote a greater degree of freedom of speech overall. It is perhaps worth noting that the silencing argument might have an easier time of it on a consequentialist approach to the value of free speech, where interfering with the free speech of some (e.g. pornographers) might be justified on the grounds that it will promote more free speech overall (e.g. for women). Deontologists resist attempts to trade-off losses of free speech to some against greater gains for free speech overall. For a more general discussion of the difference between deontological and consequentialist approaches to values such as freedom of speech see Pettit, Philip ‘Consequentialism’ in Singer, Peter ed., A Companion to Ethics (Oxford: Blackwell 1991) 230-40Google Scholar. For a more detalled exploration of a consequentialist approach to freedom of speech see Braddon-Mitchell and West, ‘What is Free Speech?’ (The Journal of Political Philosophy, forthcoming).

29 The most common of these liberal justifications appeals to a free marketplace of ideas. The crux of the justification is that truth is most likely to emerge from a situation in which all competing ideas, however unpopular or ostensibly false, are freely expressed and debated by rational people. Through a process of unfettered debate, weight of evidence and force of argument will lead rational agents to choose to agree with the true ideas in the marketplace, while belief in the false ones will die out. Liberals have also defended the right to free speech on the grounds that uninhibited information flow and unfettered public discourse are crucial to individual autonomy and constitutive of a well-functioning democracy; that to prevent some individuals from expressing their opinions is an affront to their dignity and undermines the dictum that all persons should be treated with equal respect; and that the values of tolerance, moral independence, trust, progress, and diversity require allowing all individuals freedom to express and communicate their differing opinions to others. But, as Frederick Shauer notes, on all of these justifications what is important about free speech is the freedom to communicate ideas to others. See Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press 1982)Google Scholar.

30 Ronald Dworkin, for example, frames the question of the nature of the right to free speech in these terms. See Dworkin, ‘Two Concepts,’ 100-9. The ‘dangerous confusion’ on which he takes the silencing argument to rest is the confusion of positive with negative liberty.

31 Schauer denies that non-governmental agents can ever violate freedom of speech. According to Schauer, the right to freedom of speech is the ‘liberty to communicate, unencumbered by government control but not necessarily unencumbered by other forms of control and not necessarily entalling the de facto ability to communicate’ (Free Speech, 129). For a persuasive argument to the contrary, see Michelman, ‘Conceptions of Democracy,’ 291-319.

32 ‘[Truth] has no chance but in proportion as every side of it, every opinion which embodies even a fraction of the truth, not only finds advocates, but is so advanced as to be listened to,’ says Mill in On Liberty. The quotation appears on 180 of On Liberty in Warnock, M. ed., Utilitarianism (London: Collins 1962)Google Scholar.

33 Liberals such as Schauer will think that even in this case no violation of the right to free speech has occurred, since that right is only violated when such intervention is performed by a government agent.

34 As, for example, Hornsby seems sometimes to suggest. Free speech requires ‘reciprocity’; and this obtains ‘when people are such as to recognize one another's speech as it is meant to be taken, and thus to ensure the success of attempts to perform speech acts’ (Hornsby, ‘Speech Acts and Pornography,’ 224). As an account of what the right to free speech requires, this will be far too broad for most liberal tastes. For a critical discussion of this, see Green's ‘Pornographizing, Subordinating and Silencing.’

35 Of course, in the second case, the dictator also violates the rights of hearers.

36 For those interested in some of the legal implications of this in the American context, Judge Easterbrook appeals to the mental-intermediation of pornography's message in upholding the decision earlier made by the District Court: that the Indianapolis anti-pornography ordinance (drafted by Andrea Dworkin and Mackinnon) was unconstitutional on the ground that it violated pornographers’ First Amendment right to freedom of speech. See Hudnut, 771 F.2d 323 (7th Cir. 1985), 329-30.

37 I am grateful to an anonymous referee for the Canadian Journal of Philosophy for bringing this point to my attention.

38 Mackinnon, Only Words, 11Google Scholar

39 Ibid, 11

40 Sunstein, Cass ‘Pornography and the First Amendment,’ Duke Law Journal (1986) 589-627CrossRefGoogle Scholar

41 Scoccia, Danny ‘Can Liberals Support a Ban on Violent Pornography?’ Ethics 106 (1996) 776-99CrossRefGoogle Scholar

42 In fact, I suspect this line of argument is not right. Pornography is mentally-intermediated in the relevant sense. Or, at any rate, to the extent that pornography is not mentally-intermediated speech, it is not mentally-intermediated in the same sort of way as much political rhetoric and advertising; and, although liberals are suspicious of rhetoric and advertising for exactly this reason, they do not think they should be banned on these grounds. For a more detalled exploration of how pornographic speech may be continuous with other forms of speech, see Langton and West, ‘Scorekeeping in a Pornographic Language Game.’

43 For a more detalled argument to this effect see Daniel Nolan and Caroline West, ‘Liberalism and Mental Mediation,’ The Journal of Value Inquiry, forthcoming.

44 In terms of the previous example: should the henchmen be allowed to implant the meaning scrambler in themselves?

45 This is a four-dimensionalist way of putting the point. The issue deserves a fuller discussion than I have Space to give it here.

46 See chapter 3 of Part I of Parfit's, Derek Reasons and Versons (Oxford: Clarendon 1984)Google Scholar for a similar discussion of contributive agency.

47 Of course, how many speakers are prevented from communicating an idea — whether it be as a result of interference with production, distribution or comprehension of sounds, scrawls or gestures — may be relevant to the question of what policy response is justified. For example, if interference with communication of ideas is occurring in only a very small and limited domain then, even though such interference constitutes a violation of the speaker's right to free speech, heavy-handed legislative solutions may not be justified: for one might think that the costs of legislation will vastly outweigh the benefits in such a case. I take up this issue in the next section.

48 Dworkin (in ‘Two Concepts of Liberty’ and ‘Women and Pornography’) has this worry about Mackinnon's Statement of the argument, while Green (in ‘Pornographizing, Subordinating and Silencing’) takes similar concerns to undermine the version of the argument that Hornsby recommends.

49 This may not be enough. Those with republican sympathies will think that if there is a significant risk of interference with free speech, then protection may be necessary even if no interference is actually occurring. Not all liberals have these republican sympathies, but those who do will want to ensure that free speech not only obtains, but obtains in nearby worlds too.

50 For a succinct summary of many of these research findings and methods see Einsiedel, Edna F. ‘The Experimental Research Evidence: Effects of Pornography on the “Average Individual”’ in Itzin, Catherine ed., Pornography: Women, Violence, and Civil Liberties, 248-283.Google Scholar