Philosophy 355 Contemporary Moral Problems Darwall Winte r 1996 4/17 PORNOGRAPHY AND CENSORSHIP I I. The Harm Principle (HP) and the Enforcement of Morality Principle (EM) HP: A person's freedom of action can be legally restricted only if such restriction is necessary to prevent harm to others. EM: Conduct which violates widely and firmly held social morality may be legally prohibited. II. The internal and external arguments for EM. A. Internal: We are committed to EM if we believe that such laws are justified as those proscribing polygamy, prostitution, sale of children, and so on. B. External: A society's moral culture (its moral environment or climate) is as necessary to the welfare of its members as is the health of its natural environment. This suggests that Devlin believes violations of EM do involve a kind of harm. We might call it a moral harm, i.e., one that we can't understand without already understanding the ways in which members value their morality. Thus, when we were discussing why it should be illegal for there to be a market in children even if this actually led to no physical or emotional harm except for the undermining of the sense that children are "beyond price," it may have seemed that this latter would nonetheless be a genuine harm. Indeed, it would, Devlin might grant, but it is a harm that can be appreciated only from a perspective internal to (our society's) morality. EM is concerned with these harms. II Pornography and Obscenity: What Are They? What Is the Law and Its History? A. Pornography and obscenity are different concepts. 1. Pornography comes from the Greek word porne, which means harlot or prostitute, and graphein, the Greek verb, to write. So pornography was quite literally writing about prostitutes. More generally, it has come to mean written, photographic, or artistic depictions of erotic subjects that arouse, or that are intended to arouse, sexual excitement in their audience. 2. Obscenity is a moral and legal category. It comes from the Latin obscenus, meaning "ill-looking". Obscenity by definition, then, is what is offensive to our moral sense or sense of propriety or decency. Usually the category of the obscene is invoked to refer to pornography that is held to be offensive, or to language, gestures, etc., that are intended to offend by referring or alluding to notions of the dirty, the filthy, the disgusting, the distasteful, and so on. 3. It follows, that pornography is not necessarily obscene. Indeed, we could in principle imagine a society that found no pornography offensive. Whether one regards this as an ideal depends one's view of the good society. As we'll see, Walter Berns argues that this could hardly be an ideal. A society that has lost its ability to be offended by at least some kinds of pornography, he maintains, is one that has lost its capacity for shame. If we were to lose that, he argues, we would have lost what is necessary to be a democratic, self-governing society. B. Obscenity and the Law 1. Obscene pornography began to be formally regulated in Victorian times. Until 1957, the controlling law derived from the 1868 British case, Regina v. Hicklin, whose standard was "whether . . . [the pornography's] tendency . . . [was] to deprave and corrupt those whose minds [were] open to such immoral influences, and into whose hands a publication of this sort may fall." 2. In 1957, however, in Roth v. United States, the U.S. Supreme Court held that regulated obscenity had to be "material having a tendency to excite lustful thoughts," and such that "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Accordingly, it was no longer enough that there were pornographic passages--on the basis of which, for example, James Joyce's Ulysses was banned in the U.S. for 11 years after its publication. 3. Cases subsequent to Roth added two more requirements: a. "the material [must be] patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," and the famous b. "the material [must be] utterly without redeeming social value. 4. Later the Court added that all three of these elements were necessary. 5. A 1966 case, Mishkin v. New York, modified Roth to make it more comfortably cover pornography aimed at "niche" sexual markets--homosexual pornography, various forms of fetishism, etc. 6. In 1970, Congress set up a Commission of Obscenity and Pornography, which recommended the repeal of all legislation prohibiting the sale, exhibition and distribution of sexual materials to consenting adults. This did not happen. 7. Indeed, in 1973, in Miller v. California, the Court by and large returned to its position in Roth, and affirmed that the relevant standards could be those of the state or local community. The new tripartite criterion: a. "the average person, applying contemporary community standards" must find that the work, taken as a whole, appeals to the prurient interest. b. the work must "depict or describe, in a patently offensive way, sexual conduct, c. the work must lack "serious literary, artistic, political, or scientific value." [No longer: "utterly without redeeming social redeeming value."] III. The Traditional Arguments, Pro and Con A. Next Monday we will consider an argument about pornography and gender injustice. The traditional arguments in favor of censoring obscene pornography are various versions of Devlin's. Obscenity pollutes or corrupts the moral environment and so undermines cherished shared values. As the Supreme Court put it in Paris Adult Theatre I v. Slaton (1973), society must be permitted to protect the public interest in "the quality of life and the total community environment." B. A version of this is advanced by Walter Berns who argues that the implied purpose of obscenity is constantly to push the envelope of shame. It is to take something we are initially naturally ashamed of and purposefully to dull or de-sensitize the shame. So long as we view our shame as a "hangup" this can seem liberating, we are casting off society's norms, norms that society places on us. But, Berns argues, this is the wrong way to look at it. Shame is actually a natural reaction on which the possiblity of human morality depends. Humanity is, as he puts it, a "blushing animal". The point is not that shame always naturally arises with, say, nudity. Exactly where the lines are drawn can vary. But every society depends upon the natural reaction of shame; it relies on its citizens not being shameless. But this is what the effect of obscenity is--it makes us shameless. And, in so doing, it makes us lose what we need to govern ourselves. Ironically, by buying into the idea that social constraints are all imposed on us, we become such that we can no longer be governed by own internal reactions, by shame, but rather can only be ruled by force from without. C. The traditional arguments against censoring pornography are the Millian, liberal, and libertarian arguments for not restricting liberty in general, and freedom of speech in particular. D. In addition, some people, such as G. L. Simons, argue that pornography has various beneficial effects, for example, that it is cathartic in preventing anti-social and violent acts and an aid to normal sexual development.