The Ethical Case For and Against Censorship of Pornography
The controversy surrounding pornography is complicated not only by a lack of agreement on whether pornography should be allowed in our society, but also by a basic disagreement over what is included in the definition of pornography. Emotions run high and scientific rigour falls aside where it comes to studies of the effect of pornography, the use of these studies in mass media and in academic debates. Sifting through mountains of rhetoric can be confusing, when few entering the debate can even agree on what pornography is, much less what are its corrosive effects. The first task of this paper, therefore, shall be to begin at the beginning, and clarify the differing definitions or idea about pornography that are at play in recent academic debates. Secondly, we will examine the arguments for and against pornography, be it by way of censorship or not. We will want to pay particular attention to the way in which one argument (that of American feminist Mackinnon and Dworkin) are mischaracterized and misunderstood, and why. Finally, we will look at the underlying assumptions of ethical systems that are being used here as points of reference; I will argue that much of the disagreement about this issue is due to the fact that the various sides (and there are far more than two) are appealing to wildly different (and perhaps incompatible) ethical systems. On the one hand, there are those that appeal to utilitarianism, while others appeal to an individualistic, existentialist ethics.
Let us begin, then, with the very different ways that pornography is characterized and defined. In popular parlance (and many of the arguments depend on this commonly held conception) pornography means materials that are sexual in nature, usually in a way that is offensive to one self or the mainstream public. Proof of this position, as well as of its hypocrisy, lies with the fact that much of art in the Western tradition — that which is displayed in museums – depicts sexually explicit material. There is no question that this is art, not pornography. The second common distinction is one that is drawn between “pornography” and “erotica”. As described by Nettie Pollard in her article, “The Modern Pornography Debates,” qualifying as “erotica” are representations of a sexually explicit nature, but which are not violent or degrading to women; “pornography”, on the other hand is harmful because it is violent or sexually degrading to women. This distinction is murky, however, because sometimes the distinction is mean to signal the difference between visual materials (“pornography” includes the Greek term graphe, or visual representation), whereas “erotica” is then used to refer to written materials describing erotic acts. This last way of delineating the matter appeals to the belief that whereas pornography appeals to men because their sexuality is more visual, erotica appeals to women’s more internal and intellectual connection to sexuality.
However, any feminist worth her salt would refuse both distinctions as being false. Why? Because in either case, the division between erotica (good) and pornography (bad) is just a way of distinguishing the erotic and sexually explicit materials that you find acceptable with that which you do not find acceptable. The problem is that, in trying to censor pornography, no one wants to have to ban any and all erotically or sexually explicit materials (we all think Michelangelo’s David is beautiful), but only some. But then, that means that someone has to make a call, draw the line between good and bad sexualities (and their representations). That we should be more preoccupied with punishing bad representations, not what they represent, seems to escape the debate; why you should not get flogged for producing boring or canned pornography?
It is specifically in order to capture only the morally reprehensible depictions of sex that McKinnon and Dworkin carefully re-defined pornography as “a practice of sex discrimination which sexualizes the subordination of women and which eroticizes violence against women: as a political practice of power and powerlessness which eroticizes dominance and submission.” (As quoted in Pollard, 2). This definition is important, first of all, because it re-describes pornography as a practice. McKinnon, who is both a feminist and an attorney, understood what she was doing when she did this. She sought, specifically, to bypass the debate over pornography in terms of censorship, and claims to first amendment rights (in America).
Even though Mackinnon and Dworkin are often misrepresented as being in the pro-censorship camp (such as in the article by Avedon Carol entitled “The Harm of Porn: Just Another Excuse to Censor”), they were explicitly and firmly against censorship, and saw this as a dead end in their attempt to curtail violent or harmful pornography. Their ordinance (proposed, passed, then overturned in Minneapolis, MN) took pornography to be a practice that produced harms to women in particular, harms that individual women were not able to mitigate against; secondly, their ordinance sought to make it possible for women to gain the right to litigate against the harms of pornography in a court of law– that is, to sue the producers and distributors of violent pornography for inciting or causing violence against them in particular, or as a class of people, in the case of a class action suit. If those impacted by violent pornography (and not just women) could show, in a court a law, a link between the consumption of pornography and a crime committed against them. (I suspect that Carol understands this, as she leaves the matter vague, only implying Mackinnon and Dworkin’s support of censorship).
MacKinnon and Dworkin’s strategy had other strengths built in: it was meant to bi-pass a generation of faulty scientific research on the subject, as described by Carol in her previously mentioned article. It sought to not have to have feminists making the call between what is good and bad pornography, by waiting to make this call on the effects of particular representations. Finally, it was meant to put financial pressure on the producers of pornography to make pornography that was not violent nor degrading to women. But the beauty of the ordinance was that it did not rely on gender specificity – under the same ordinance, producers of pornography putting minors or even men at risk would be liable to a negative judgment and (hopefully) resulting in bankruptcy. In any case, as many feminists pointed out at the time, there are already laws against the rape, torture, mutilation, and un-consented to acts against women; censoring their representations does little to address these problems. As the Americans say, the proof would have to be found in the pudding.
This is not to say that there where not feminists who were rallying against porn in the late seventies and early eighties, and that they did not become the voice that came to represent the feminist position in mainstream media representations of the debate, such as is described by Carol. Arguable, the misrepresentation of McKinnon and Dworkin as being in the “censorship camp” is as gross a misrepresentation (serving the same interests) as the misrepresentation of the feminist position as “naturally” anti-porn. Perhaps the reason for both distortions has to do with the fact that it was this conservative (and liberal in the traditional sense) group of feminist who most resonated with the puritanical American mainstream – what Pollard calls the “moralist position’, or the “traditional, conservative critique of pornography” (Pollard, 2) that has sought scientific evidence as grounds for suspending the first amendment rights of some through censorship.
The attempt to find scientific grounds for making the call between good and bad representations of sex is well explained in Avedon Carol’s piece on “The Harm of Porn”. She explains how a generation of right-wing, moralist men, beginning with Dolf Zillman and not ending with Edward Donnerstien, attempted to find a connection between violence and anti-social behavior, and the consumption of pornographic images. The story of Donnerstein connecting the higher pulse rates and skin temperature of young men viewing pornography (and here the irony that in order to work against it, these poor moralists had to expose themselves repeatedly to the corrupting materials!) to a preparatory towards committing violence (Carol, 2-3). The studies would be humorous, had then not been taken so seriously and cast such a long shadow. But then the question becomes, why did these studies stick; why do so many even today believe there is a link between pornography and violence (the link often being made through representations of S/M)? People believe what they already want to believe, and the mainstream of America and British people are puritanical. But perhaps there is more to it….
There always have been, and always will be, women whose relation to sex and their own sexualities makes it inconceivable to accept what others might enjoy, represent, and respond to sexually. They are often posited as opposed to libertarians and sex radicals, but in reality there is no clear cut opposition between these groups and positions. That is, it is possible for a radical lesbian separatist who feels it is her duty to violate societal norms of decency by not only sleeping with women, but by sleeping regularly with more than one , who nonetheless finds pornography loathsome, and who acts much like the Christian church lady in her activism around censoring mainstream pornography. So, now, lets look at the moralist position that pornography threatens the moral order. In the extreme, this position is like a “no avatars position” – sex should not be seen, period. This could be based on the view that sex is dirty and shameful, and that sexuality should only be in the service of reproduction within the context of monogamous heterosexual marriage, and these are usually reasons given. Or, more plausible to this writer, it could be that explicit representations of sex never looks like what it feels, and so carries with it a necessary air of corruption and falsity. (It follows that in order to truly represent sex, desire, or ecstasis, the last thing that you would represent would be sex acts, which means that a ban on the representation of sex and sexuality would take us far and wide indeed.) Not unlike the argument that Plato gives in The Republic against artists and playwrights, this is also the reason why some religions forbid the representations of God, as necessary falsifying.)
Unfortunately, there representations are often produced by an for men, and are often used as a stand in for sexual education; when young men learn to value sex for what it looks like, and by extension to value women by what they look like, then I cannot deny that we have a problem. Additionally, there is the larger problem that the representation of sex is itself a sexual practice that cannot help but habituate and homogenize sexual behaviors. So, the charge of corruption sticks, but not for the reasons that are usually given; it is worth mentioning, however, that the rote reason given (that it threatens the social order) is grounded in these latter reasons, even if these reasons are assumed and not made explicit by those who see themselves as living a morally upright existence. The moral right tends to get lazy when it comes to having to actually make an argument.
Still, many of the more conservative arguments from feminist have to do not with how pornography may corrupt human sexuality – women and men’s — but with the alleged hard it does to women – the view that is attribute to the British government by Pollard (Pollard, 1). The effect and impact of pornography (violent or not, degrading of women or not) on women is different than it is on men, yet no feminist has tried to make these differences explicit. Furthermore, that this “harm” is like the concept of “race” – no such thing exists, but it continues to shape our beliefs and behaviors – seems not to destroy the case of those who seek to censor pornography – both in America and Britain recent efforts have been stepped up to crack down on the makers of sexually explicit materials. We may want to ask, why not? It could be that the moralists can afford to be lazy with their arguments because they seem to have the strong arm of the law, and the force of long custom, on their side.
Andrea Dworkin and Catherine McKinnon’s re-definition of pornography in terms of a practice that causes harm, ironically, opened a new avenue for those who sought to censor lewd materials. The argument addressed by Andrew Koppleman (“Does Obscenity Cause Moral Harm?”) and Rae Langton and Caroline West (“Scorekeeping in a Pornographic Language Game”) goes like this: if pornography is a practice, and to practice something entails action, then pornography is close to action. (There are also arguments about the performative aspect of language that get aligned with this argument, e.g., pornography as speech, and more specifically hate speech.) Actions have consequences and effect, and the effect of pornography is generally harm to women who are degraded in and by pornographic representations; it silences and subordinates women in the way that racially hateful or homophobic speech affects those marked racially or by way of perceived sexual preference. As Langton and Rae point out, neither the older theory that pornography rationally conditions violence, not irrationally has the same effect; but what is the point of this distinction when the harm caused by pornography cannot be proved by the means that we usually accept – that is, by scientific means. The best chance of proving and establishing this link may have been with McKinnon’s ordinance (by legal precedence), but this attempt was turned back by the court. And, if we are to look at effect, the effect of all this talk of censoring pornography has only led to its growth and popularity. Maybe the best way to beat the probably real but improvable harms of porn is to beat it – to make better, less harmful, maybe even empowering representations. Let the marketplace decide this issue, as it decides everything else.
Perhaps it will not be surprising that those on the “opposite” liberal, left, or radical edge of the debate over pornography rely on assumptions so similar as those on the right as to be indistinguishable. One line of reasoning goes like this: sex and sexuality is at the core of individual identity, and the attempt to foreclose its expression, irregardless of how much we like or dislike any given expression, is dehumanizing. Some women may be exploited in the sex industry, or by their husbands, or by their bosses at work. The law recognizes limits to women being exploited. Ironically, what developed from the attempt to censor pornography in modern times has been a rather large discourse on pornography and sexuality that has only helped the industry grow by leaps and bounds, become less taboo and more accepted, and diversify into pornography made by women and for women. There is now consensus that the voices that used to dominate in the feminist movement, voices against pornography and in favor of censorship, have become less powerful; the new feminists are pro-sex and for its representation. This does not mean that any and all sexualities should be protected from censorship. We can still, as a society, disallow materials that are harmful to minors, or which results in negligent hard done to anyone in the course of its being made. Other than this, if you don’t’ like S/M, then you should not expose yourself to these materials.
This debate over pornography strikes me as a lot of smoke and mirror, with sides talking past each other because they don’t agree on what they are talking about to begin with, not seeing how much grounds there is for agreement, and each relying on faulty evidence and lazy reasoning. But in the end, it may be that the real differences may lie with the basic ethical assumptions behind the impulse to deal with pornography through censorship or by other means: Those who want to make the harm argument rely on a universal utilitarian paradigm that shows that he harms of pornography outweighs the need to protect the first Amendment Rights of pornographers, or vice versa (that pornography should not be censored because it is not worth the sacrifice in restricting freedom of speech). IF this is the case, then the debate becomes about the perceived harms and goods, and the means of measuring and balancing these. Those who enter into the debate on these terms assume that society has the right and responsibility to create balance. (The libertarian believes the free market naturally restores and maintains the balance.)
But the debate is also being had under completely different assumptions and on another plain. The existentialist and individualistic tendencies (of Americans in particular) lead to the assumption that id sexuality is a core around which individuals can come to define their identities, then to limit the expression of such by any means is to do metaphysical harm to the individual, who is the seat of morality (and not the government or society at large). The existentialist would not grant government or the market any role in the debate, only good and bad faith. It is a matter of scale: do moral questions get made by individuals who chose to participate in the pornography industry (be it as consumers, models, filmmakers, artists, distributors, etc.) or is morality a matter of social convention – or, of a yet higher force.
In the end, the ethical case for or against censorship of pornographic materials comes down to this: to the incompatibility not of positions pro or con, but of ethical systems.
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