by Неизвестный
Neo-Conservatism. As Supreme Court doctrine enforced permissiveness in the 1960s and as liberalism grew increasingly relativistic in character, a secular case for censorship was made by several scholars who are best described as neoconservatives. They accepted the premises of liberal democracy as the practical basis of what they called the American regime, but they questioned whether the constitutional republic could thrive if the polity showed no concern whatsoever for the character of its citizens. Though students of classical political philosophy, they did not suggest restoring virtue rather than liberty as the end of political life in modern America, but they did argue that a free society depends upon a certain virtue in its citizens and to that extent adopted the language of classical republicanism.
They found the recent involvement of the Supreme Court in enforcing a liberal, or rather libertarian, doctrine of free speech that effectively removed all censorship of obscenity to be doubly problematic in relation to citizen virtue. The Court’s decisions permitted material that tended to corrupt those who needed instruction in noble deeds, not base ones, and it took from the people the decision about how to preserve their own liberty and virtue.
The neo-conservative account of obscenity was a sophisticated one: Walter Berns, for example, concludes his essay by explaining the value of the obscene in great art, citing as an example Edmund’s “stand up for bastards!” speech in Shakespeare’s King Lear, showing how artistic use of obscenity serves to ennoble and asserting that art itself thrives in an atmosphere of partial censorship more readily than in a world where everything is permitted and no one publicly cares to distinguish art from trash.20 Berns is no Comstock who would brag how many trainloads of smut he had captured and destroyed; it is enough for him that it be returned to a place under the counter or behind a screen.
Feminism. The fourth set of ideas about pornography and censorship belongs to modern feminism, which defines pornography as writings or images that depict the sexual subordination of women. Not all scholars who describe themselves as feminists would agree that such pornography ought to be suppressed. Feminist volumes have been produced opposing the movement among some feminists to penalize pornography, and those on both sides of the issue would agree that liberalization of speech about sexuality in the twentieth century was critical to the emergence of the more radical forms of feminism in the latter decades of that century.21
Andrea Dworkin and some others drew a distinction between pornography and erotica, rejecting only the former. Catharine MacKinnon drew a parallel between feminism and Marxism, with liberalism serving similarly as a stage in development that needed to be put behind.22 Even among those who favored use of the law to suppress pornography there was little enthusiasm for censorship itself; indeed, to Susan Griffin, the censor is like the pornographer he torments in that the aim of both is the silencing of women.23
Nevertheless, drawing on a model of civil rights, anti-pornography feminists believed that law could be used to effect change, restricting liberty of expression in the name of equality of rights. The target was clearly defined as pornography, not obscenity, the depiction of women as sexual objects or sexual slaves, not portrayal of the filthy or the disgusting. The aim was not to restore an old regime that was part and parcel of the problem, but instead to redefine the new.
Now, these four perspectives—Christian moralism, liberalism, neo-conservatism, and feminism—can mix in complex ways. I mentioned that feminism, though critical of liberalism, in fact depended on liberal freedom for its own emergence and growth. Likewise, neo-conservatives, though friendly to censorship of obscenity in the 1970s and the 1980s, developed a wary eye once they found themselves on the receiving end of censoriousness in the age of “political correctness,” even if the pressure on speech was largely social, at least outside of academic institutions with their arcane rules.
Moreover, emerging ideas and constituencies endorsing them will influence the debate in ways that are impossible to ignore in any political calculation. Candidates include the Catholic discourse that is developing in response to Pope John Paul II’s Theology of the Body and notions of gay sexuality that cannot be adequately fit into the category of liberalism, even in its more radically libertarian form.
Still, the four categories of Christian moralism, liberalism, neo-conservatism, and feminism are a useful heuristic. The test is in what they can explain.
FEMINIST ANTI-PORNOGRAPHY ORDINANCES
In 1983 and 1984, city councils in two Midwestern cities considered and passed a new kind of anti-obscenity ordinance. Based on a theory proposed by feminist legal scholar Catharine MacKinnon and involving her in hearings in both instances, the cities sought to redefine pornography as the depiction of sexual violence against women, hence as discrimination, and to penalize it on the model of civil rights legislation. (She had been teaching a course at the University of Minnesota Law School at the time of the first proposed ordinance, and apparently some of the impetus in its favor came from her students.)
The laws would allow citizen complaints and suits directed against those who engage in sexual violence either in making pornography or after watching it, or against those who traffic in pornography and thereby, in the theory of the ordinances, discriminate against women. MacKinnon aimed in her draft legislation to apply to pornography the theory of treating sexual harassment in the workplace as a form of sex discrimination, which was simultaneously working its way through the courts and is now established as law.24
In the Minneapolis ordinance, pornography was defined as “the sexually explicit subordination of women, graphically or in words,” followed by a list of nine offensive depictions, some explicit in the mode prescribed in Miller v. California (e.g., “women are presented as sexual objects who experience sexual pleasure in being raped”), some more general (e.g., “women are presented as sexual objects, things, or commodities” or “women are presented as whores by nature”). The Indianapolis version included only five explicit depictions.
Notably missing from either ordinance was any mention of prurience or immorality, nor was there restriction of the offense to the dominant theme of the work taken as a whole. The Supreme Court’s obscenity doctrine, in other words, was replaced by what proponents thought a superior approach.25
The politics of the ordinances involved an alliance of feminists and conservatives. In Minneapolis, the key figure was an experienced Republican councilwoman and Reagan supporter who worked closely with MacKinnon and took the lead in seeing the ordinance through the council. In Indianapolis, a town that had long had active groups favoring the suppression of obscenity, some of whom had grown frustrated by recent Supreme Court jurisprudence, many Republicans supported the ordinance, including the progressive Republican mayor. In both cities, testimony before the council or its committees was dramatic and controversial, with open testimony of sexual abuse that was relatively unprecedented at the time.
In both cities there was both support and opposition for the ordinance among Democrats. Donald Fraser, the Democratic mayor of Minneapolis, vetoed the ordinance, convinced of its unconstitutionality, and later vetoed a revised version that was passed the following spring. In Indianapolis, Mayor William Hudnut signed the act into law, only to find himself named in a lawsuit that led to its being overturned in federal district court, with the Sixth Circuit Court of Appeals affirming the decision to strike the ordinance, in an opinion by Judge Frank Easterbrook, a prominent Reagan appointee. The Supreme Court declined to hear the case.
Easterbrook noted that the ordinance eschewed the Supreme Court’s definition of obscenity, which meant that the court had to consider the material in question protected speech. While not denying—indeed, precisely because he admitted— the power of the argument about the meaning of pornography as subordinating women, Easterbrook found the statute to aim at “thought control,” adding that neither Homer’s Iliad nor Joyce’s Ulysses were outside the terms of the act. He concluded:
Any rationale we could imagine in sup
port of this ordinance could not be limited to [reducing] sex discrimination. Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. Culture is a powerful force of continuity; Indianapolis paints pornography as part of the culture of power. Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.26
The feminist theory and ordinance captured national attention, and the testimony of the women, controversial in each city, nevertheless seems to have made a lasting impression on those who heard it. But neither ordinance became law, in both cases because of constitutional concerns anchored in liberal jurisprudence. Both the mayor of Minneapolis and the federal courts found that the punishment of pornography as discrimination ran afoul of First Amendment protection. The court did not deny the fact of harm, but treated concern for free speech as trump.
The passage of the ordinances in the councils and the interest taken in them nationally indicated the possibility of a feminist-conservative coalition on the issue, and in fact in 1986 the federal Meese Commission not only revised the 1970 President’s Commission findings on the basis of new social science evidence, but also incorporated the feminist perspective on pornography as discriminatory against women. At the same time, the repudiation of both ordinances on constitutional grounds seems to have caught some conservatives by surprise, indicating, in the opinion of the historian of the controversy cited above, either their naïvety or their desperation in grasping at a radically untested approach in the face of liberal legal entrenchment.
If the feminists pressed for the ordinances only to gain national attention and thereby have some influence on the long-term debate, their strategy was probably successful; if they sought to change the regulation of pornography, they seem to have been naïve about the willingness of the courts to radically shift established (even recently established) doctrine. Their initial success in local government suggests the possibility of anchoring the regulation of pornography in affected communities; after all, Miller had seemed to vindicate “community standards,” and the zoning cases involving red-light districts suggested the value of local government, too.
But the liberalism now accepted as a national doctrine of constitutional scope undercuts the efforts at the local level to address the moral concerns of actual citizens willing to come forward and admit of having suffered genuine harm. And the entrenchment of that liberalism in constitutional doctrine changes the whole character of the politics, for it raises formidable barriers in front of those on the other side of the issue, who could see all their efforts brought to naught by judicial annulment, and at the very least are faced with enormous legal expense to match the inevitable legal challenge.
Indeed, probably one thought behind the feminist proposal to treat pornography as discrimination was to meet constitutional trump with constitutional trump, since the vindication of civil rights is ordinarily the only goal besides urgent needs for security that can win at law over civil liberties. But this time it didn’t.
CONCLUSION
Much has happened since the 1980s, of course, in terms both of the issues faced and of public opinion. As noted above, the easy availability of pornography on the internet facilitates access and thus increases its use. Moreover, we know even more than before about the harm that pornography does, even if the full extent of that harm is difficult to measure.
At the same time, social attitudes seem to have become more permissive. They have become permissive of the depiction of sex—witness, in Cincinnati, a city declared as recently as 1985 the “Anti-Porn Capital of America,” the 1990 jury acquittal of those responsible for an exhibit of the sexually explicit and homoerotic photographs of Robert Mapplethorpe.27 They certainly have become more permissive of public talk about sex, a fact that was excruciatingly evident in the explicitness of media coverage of the events that led to the impeachment of President Bill Clinton. As in so many other areas of life, we have conducted a vast social experiment, in this case an experiment in a sex-saturated society, and the conditions promoted by that experiment now obstruct any effort to respond to its results.
My first conclusion, then, is a need for caution in any regulatory attempt, lest the effort backfire and make future efforts all the more difficult. The division in ideas and interests suggests that any regulatory effort is going to depend on a coalition whose partners are often at odds, even or especially on related issues such as abortion, gay marriage, or hate speech. It will require negotiation to find common ground. For example, neo-conservatives still feel strongly about the character of the citizenry and the need for fostering sexual self-restraint, but now they also are vigilant against politically motivated suppression of speech, finding themselves already— or imagining themselves potentially—vulnerable to attack by majority opinion. Likewise, Christian moralists and feminists agree on the need to protect women from pornographic assault, but they often have fundamentally different expectations of the protectors and the protected.
Conversely, liberalism is unlikely to be defeated if attacked head-on, whether by challenging federal jurisprudence or by ignoring widespread public sentiment in favor of expressive freedom—but it may be open to regulations that address aspects of the problem from an angle liberals might otherwise endorse, focusing, for example, on the regulation of commercial speech.
Partly this caution is a plea to recognize constitutional politics: The costs of taking on the federal courts is very high, and appeals that call for the overturning of established doctrine are not apt to succeed unless well-prepared, for the Supreme Court rarely reverses its decisions outright, but often allows them to be chipped away step by step. Partly it is counsel to remember public opinion, which needs to be well-formed, at both the elite level and at the level of the ordinary citizen.
Second, it is important to be clear about what is really new and what is perennial. The oldest story in pornography and its regulation is, paradoxically, the challenge of new technology. The internet makes access to pornography much easier, but so did mass printing, movies, and videocassettes. Innovative responses might soon enough be antiquated, but sometimes they have success: The move toward zoning had genuine importance in constitutional doctrine and real effect in breaking up porn zones—for example, Times Square in New York—and that suggests to me that creative thinking might have real policy results. Rather than seeking to suppress what the courts are determined to protect, perhaps it is possible legally to reduce or eliminate the profitability of pornography—for example, by adjustments to copyright protection for obscene and maybe even for indecent materials.
Finally, since public opinion is so crucial in all matters of morals—indeed, it is almost all that is at stake, since the complete suppression of vice is impossible— it is critical to consider what can be done, with or without the law, to restore to pornography its bad name. Here I want to suggest the importance of the way we use language and countenance its use, and what I want to recommend is not a return to Comstockian prudery but a deliberate restoration of modesty in talking about sexual things.
This can be done playfully and ironically—a teacher can tell you that you’ll get a good laugh if you dance around a sexual reference with a surprising circumlocution before a class of modern students who expect explicitness—and it also can be done seriously, by sacrificing a need to know or say explicit details of sexual scandal for the sake of preserving decorum. A lack of modesty in describing sexual things tends to erase the distinction between human beings and animals, to treat ourselves as only bodies, not persons. By contrast, the antiquated social practice in pre-Oprah America of never publicly discussing sexuality also disregarded the specific character of human beings, for the sexual act is also animalistic if mute in its anticipation and in its aftermath, if its role in a complete human life cannot be explained.
To acknowledge the
political difficulty of the situation of those who would protect against pornography is to introduce a certain modesty into the discussion of what ought to be done. But the restoration of modesty, not to say awe, in the face of sexual passion and power would be already a healthy first step.
INDUSTRY SIZE, MEASUREMENT, AND SOCIAL COSTS
K. Doran
In order to estimate the effect of pornography on societal well-being we must study how it is distributed and consumed, and the effects on individuals and society of this distribution and consumption. In this paper, I attempt to make an initial contribution to the study of these areas by drawing on many underutilized sources of data regarding a relatively new and significant branch of pornography: internet pornography.
First, I explain the main mechanisms of distributing pornography on the internet. Next, I demonstrate that although the industry’s own estimate of $2.5 billion in annual revenue from internet pornography is often considered an exaggeration, it corresponds well with independent data—and in fact significantly underestimates total consumption, because between 80% and 90% of internet pornography consumers seem primarily to consume free internet pornography.
My analysis suggests that there is not yet any convincing statistical evidence that the consumption of pornography has either positive or negative effects, but that several promising techniques exist for improving this research. The study concludes by considering the possibility of regulating pornography. The relatively large market for help overcoming pornography addiction strongly suggests that there are large personal costs to pornography consumption, which opens up the possibility of welfare-improving government regulation. Eliminating copyright protections for pornographic materials will only succeed in limiting pornography consumption under certain conditions, but regulation of Internet Service Providers (ISPs) could quickly reduce pornography consumption, especially the vast majority of such consumption that occurs for free.