Philosophy 355 Contemporary Moral Problems Winte r 1996 4/22 PORNOGRAPHY AND CENSORSHIP II I. Obscenity, Censorship, and the First Amendment: Background The currently governing decision is Miller v. California (1973), which held that in order to be regulable as obscene it is necessary that: (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." II. MacKinnon's Feminist Argument for Censorship of Misogynist Pornography A. Women are subject to a wide variety of forms of violence, abuse, and harrassment as women. According to her figues, as many as 44% of American women are raped at some point in their lives. 85% experience sexual harrassment. 25% to 33% of women are battered by their partners. And 38% of girls are sexually molested. B. Pornography expresses, confirms, and fosters forceful objectification, humiliation, and violence against women. It "sexualizes rape, battery, sexual harrassment, prostitution, and child sexual abuse; it thereby celebrates promotes, authorizes and legitimaes them. More generally it eroticizes the dominance and submission that is subect to them all." What does she mean? Misogynist pornography presents one or another of the following images of women: a. sexual objects who enjoy pain or humiliation, b. sexual objects who experience sexual pleasure in being raped, c. sexual objects tied up or cut up or mutilated, etc., d. presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, or hurt in a context that makes these conditions sexual, e. sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission of display. C. MacKinnon's argument applies only to misogynist pornography. 1. Example: Jake Baker's "story". 2. By presenting these images, misogynist pornography expresses and confirms an image of women as appropriately treated in these ways. a. It is not so much that it expresses the belief or proposition that this is how women are to be treated--it presents that image, that way of looking at women. As she puts it, "pornography codes how to look at women, so you know what you can do with one when you see one." b. This aspect will end up being important to her argument, since she wants to hold that censor pornography is not so much restricting speech as action. 3. The pornographic image eroticizes this oppression. It obfuscates the manifest injustice (the rape, the domination, etc.) by presenting at as pleasurable to the woman or what she really wants or needs. It makes violence, abuse, and other forms of injustice into sex. 4. Moreover, because the consumption of pornography is accompanied with sexual pleasure (say, through masturbation) it conditions men so to look at women. 5. In all of these ways, misogynist pornography tends to confirm and foster oppression of women. It is, therefore, active discrimination against women, not just speech, indeed, not even speech that proposes discrimination against women. So censoring pornography is not really restricting freedom of speech. E. Misognynist pornography therefore causes harm to women, and so may be justifiably censored, MacKinnon argues. III. The Critique of Feminist Antipornography Legislation A. Duggan, Hunter, and Vance offer the following criticisms: 1. The proposed Dworkin/MacKinnon law admits of very broad interpretation, and would be likely to be interpreted by judges and juries in ways that would go well beyond restricting pornography that was misogynist. a. Consider, for example, a documentary about a rape. Since unlike the Roth or Miller standards, there is no reference to the work as a whole appealing to a prurient interest, or not having redeeming aeshetic value, etc., it seems possible that such a documentary might run afoul of the proposed law. b. Or consider: "Women are presented as sexual objects for . . . possession, or use, or through postures or positions of servility or submission or display." How widely might judges and juries be inclined to apply that? For example, Picasso did some sexually explicit engravings late in his life that might be so characterized. What would stop a judge or jury from applying the law to that? 2. Censoring pornography is not good for women because it is as likely to be turned against them as for them. Women have more to fear than to gain from censorship generally. For example, Andrea Dworkin's own book is evidently currently subject to censorship in Canada. 3. The case for regarding censorship of misogynist pornography as a restriction of discriminatory action rather than speech is weak, since we lack good empirical evidence that pornography does condition male sexual response to images of violence and therefore provokes violence against women. 4. And again, the precedent of considering misogynist pornography to be action rather than speech, and therefore not protected by the first amendment is also dangerous to the interests of women as to any group that can advance its interests only through political speech and action. Once the door is open to considering forms of expression to be action rather than speech, this is likely to be used against groups who will be most at risk if it is possible to restrict unpopular political discourse as not really speech. 5. In the end, the most powerful argument against MacKinnon depends on two premises: (a) the central importance of freedom of speech to a just democratic order, and (b) the fragility of free speech, when exceptions are allowed to be made--the "line drawing" problem. Actually, there are two forms of the "line drawing" problem: a. the theoretical line-drawing problem b. the practical line-drawing problem Even if there are theoretical grounds for carving out an appropriate exception for censoring misogynist pornography, once judges and juries are given the discretion to make exceptions of some kind or other, will be able to be appropriately contained? IV. Two Countries, Two Laws. American Booksellers v. Hudnutt and Butler v the Queen illustrate the difference between the current legal situation in the U.S. and in Canada. The former decision found the Dworkin/MacKinnon proposed censorship of pornography to be inconsistent with the First Amendment to the U.S. Constitution, and with recent obscenity cases. The latter upheld a similar law in Canada. Which law should we have?