by Неизвестный
12 Ibid., p. 268.
13 Ibid., p. 280.
14 That point also works to counter the most important argument put forth in defense of same-sex marriage: That marriage cannot find its principal rationale as a framework for the begetting of children, for many married couples are incapable of bringing forth children. There is a significance that still attaches to the union of bodies between men and women, paired in nature for reproduction; a significance that cannot be replicated in the relations of two men or two women. There is, in the case of men and women, a correspondence between the uniting of the bodies and that telos, or purpose, of sexuality in bringing forth new life, embodying the marriage or merging of the man and the woman, united in the sexual embrace. But on that, more at another time.
15 Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (Washington, D.C.: Regnery Publishing, Inc., 1996), 265.
16 I refer here to Walter Berns’s classic essay, “Pornography vs. Democracy: The Case for Censorship,” Public Interest no. 22 (Winter 1971): 10.
17 These impressions have been borne out, with the addition of some precise figures, in Pamela Paul, Pornified: How Pornography Is Damaging Our Lives, Our Relationships, and Our Families (New York: Henry Holt and Co., 2005). Paul draws on that study in her contribution in this volume.
18 We have been told now that the women in pornography view themselves as actors, not as whores, for they are not selling their sex to a customer. See Theresa Reed, “Private Acts Versus Public Art,” in Prostitution and Pornography, ed. Jessica Spector (Stanford: Stanford University Press, 2006), 249–57. But they are willing to have sex with men they’ve just met, with a public viewing by strangers, outside any confines of intimacy. It is an arguable point, however: that a prostitute is willing to be recorded at work does not itself make her an actress, or make her any less a prostitute.
DESIRE AND THE TAINTED SOUL: ISLAMIC INSIGHTS INTO LUST , CHASTITY, AND LOVE
1 Aristotle, Politics, tr. Benjamin Jowett (1253a35-36), in Richard McKeon, ed., The Basic Works of Aristotle (New York: Random House, 1941), p. 1130.
2 Modern Catholic Encyclopedia, eds. Michael Glazier and Monika K. Hellwig (Collegeville, Minn.: Liturgical Press, 2004), 779.
3 Dorothy L. Sayers, Creed or Chaos (Manchester, N.H.: Sophia Institute Press, 1949), 121–22.
4 Pamela Paul, Pornified: How Pornography Is Damaging Our Lives, Our Relationships, and Our Families (New York: Henry Holt and Co., 2005), 83.
5 Majid Fakhry, Ethical Theories in Islam (New York: Leiden, 1991), 170.
6 Syed Muhammad Naquib Al-Attas, Prolegomena to the Metaphysics of Islam: An Exposition of the Fundamental Worldview of Islam (Kaula Lumpur, Malaysia: ISTAC, 1995), 33.
7 The Burda of Al-Busiri, trans. Hamza Yusuf (Essex, U.K.: Sandala Ltd., 2002), 6.
8 Søren Kierkegaard, Either/Or: A Fragment of Life (London: Penguin Books, 1992), 76.
9 Ibid.
10 Ibid., 81.
11 Ibid., 82.
12 Fakhr al-Deen al-Raazi, al-Tafsir al-Kabir (Beirut, Lebanon: Dar al-Kutub al-‘Ilmiyyah, 1990), 7–8, 10.
13 Thomas Aquinas, Summa Theologica II-II, Q.151, Art. 1. 15.
14 Described in John Ciardi’s commentary in Dante Alighieri’s Inferno (New York: The Modern Library, 1996), 279, 284.
15 Anne Moir and David Jessel, Brain Sex: The Real Difference Between Men and Women (New York: Delta, 1991), 107.
16 Abu Hamid al-Ghazali, Mizaan al-‘Amal (Egypt: Dar al-Ma’arif, n.d.), 269–70.
17 Bob Dylan, “It’s Alright, Ma (I’m Only Bleeding),” Columbia Records, 1965.
18 This is quoted in Andre Comte-Sponville, Small Treatise on the Great Virtues (New York: Metropolitan Books, 2001), 180.
19 Josef Pieper, The Four Cardinal Virtues (Notre Dame, Ind.: University of Notre Dame, 1966), 201–2.
20 Although Dr. Timothy Winter’s translation of the Arabic text “‘ishq” is “amorous passion,” I prefer to use the word “lust,” as that is clearly what al-Ghazali is referring to.
21 Imam al-Ghazali, Disciplining the Soul and Breaking the Two Desires, trans. Dr. Timothy Winter (Cambridge, U.K.: Islamic Texts Society, 1995), 169.
22 William C. Chittick, The Sufi Path of Love: The Spiritual Teachings of Rumi (Albany: State University of New York Press, 1983), 169.
23 I Ibn ‘Arabi, The Bezels of Wisdom, trans. Ralph W. J. Austin (Lahore, Pakistan: Suhail Academy, 1999), 275–78. I altered some wording based upon my Arabic edition of Fusus al-Hikam, Ibn ‘Arabi. Dar al-Kutub al-‘Ilmiyyah (Beirut, Lebanon: 2004), 515–18.
PART THREE
FREEDOM, VIRTUE, AND THE POLITICS OF REGULATING PORNOGRAPHY
1 See Robert P. George and Sotirios Barber, Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton, N.J.: Princeton University Press, 2001), which defines constitutional politics as “the normative, conceptual, and empirical study of constitution making, constitution maintenance, and deliberate constitutional change as aspects of a distinct form of political activity.”
2 Donald Alexander Downs, The New Politics of Pornography (Chicago: University of Chicago Press, 1989).
3 Walter Kendrick, The Secret Museum: Pornography in Modern Culture (Berkeley: University of California Press, 1987), 1–32; Oxford English Dictionary, 2nd ed., s.v. “Pornography.”
4 Webster’s New International Dictionary, 2nd ed., s.v. “Obscene.”
5 Harford Montgomery Hyde, A History of Pornography (London: Heinemann, 1964), 12.
6 Gaines M. Foster, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (Chapel Hill: University of North Carolina Press, 2002), 13, 48, 52, 54.
7 Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U.S. 230 (1915).
8 An excellent compilation of the Hays Code, including its various amendments over the years, can be found at http://productioncode.dhwritings.com/index.php (accessed 18 March 2010).
9 See the Federal Communications Act of 1934, Public Law No. 416, 19 June 1934, 73rd Congress, at http://www.criminalgovernment.com/docs/61StatL101/ComAct34.html. Freedom, Virtue, and the Politics of Regulating
10 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
11 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973).
12 See Young v. American Mini-Theatres, 427 U.S. 50 (1976); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); FCC v. Pacifica, 438 U.S. 726 (1978).
13 Cf. New York v. Ferber, 458 U.S. 747 (1982) with Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
14 Matt. 5:28 (RSV), para. 2354.
15 Here is modern Catholic teaching, from the Catechism of the Catholic Church, para. 2354: Pornography “offends against chastity because it perverts the conjugal act, the intimate giving of spouses to each other. It does grave injury to the dignity of its participants (actors, vendors, the public), since each one becomes an object of base pleasure and illicit profit for others. It immerses all who are involved in the illusion of a fantasy world. It is a grave offense. Civil authorities should prevent the production and distribution of pornographic materials.”
16 Anthony Comstock, Frauds Exposed, or How the People Are Deceived and Robbed, and Youth Corrupted (New York: J. H. Brown, c. 1880), 416.
17 Foster, Moral Reconstruction, 52–53.
18 Gregory D. Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (Cambridge, U.K.: Cambridge University Press, 1994). Numerous recent books detail aspects of the code and the controversy surrounding it, including Thomas Doherty, Hollywood’s Censor: Joseph I. Breen and the Production Code Administration (New York: Columbia University Press, 2007), and Laura Wittern-Keller, Freedom of the Screen: Legal Challenges to State Film Censorship, 1915–1981 (Lexington: University Press of Kentucky, 2008).
19 For a typical “Whig” account of the rise of liberal ideas on sexuality
and its portrayal, see Hyde, A History of Pornography; for a typical account of the rise of liberalism in First Amendment law, see Thomas I. Emerson, The System of Freedom of Expression (New York: Vintage Books, 1971). The liberal viewpoint was vindicated in the 1970 report of the President’s Commission on Obscenity and Pornography, which didn’t find any link between pornography and antisocial behavior. See also Harry M. Clor, Obscenity and Public Morality: Censorship in a Liberal Society (Chicago: University of Chicago Press, 1969).
20 Walter Berns, “Beyond the (Garbage) Pale, or Democracy, Censorship, and the Arts,” in Censorship and Freedom of Expression: Essays on Obscenity and Law, ed. Harry M. Clor (Chicago: Rand McNally, 1971).
21 See Drucilla Cornell, ed., Feminism and Pornography (Oxford, U.K.: Oxford University Press, 2000).
22 Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987).
23 Susan Griffin, Pornography and Silence: Culture’s Revenge Against Nature (New York: Harper & Row, 1981).
24 See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); “Facts About Sexual Harassment,” U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/facts/fs-sex.html (accessed 18 March 2010).
25 See Donald Alexander Downs, The New Politics of Pornography (Chicago: University of Chicago Press, 1989). The ordinances are described on pages 44 and 114–15, respectively. My discussion of the Minneapolis and Indianapolis cases draws heavily on Downs’s extensive case studies.
26 American Booksellers Association v. Hudnut, 771 F. 2d 323 (1985), at 332.
27 The epithet is recorded in Donald Alexander Downs, The New Politics of Pornography, 28; on the acquittal, see Isabel Wilkerson, “Cincinnati Jury Acquits Museum in Mapplethorpe Obscenity Case,” New York Times, 6 October 1990, http://query.nytimes.com/gst/fullpage.html?res=9C0C EFDF113DF935A35753C1A966958260 (accessed 18 March 2010).
INDUSTRY SIZE, MEASUREMENT, AND SOCIAL COSTS
1 Bill Tancer, Click: What Millions of People Are Doing Online and Why It Matters (New York: Hyperion, 2008).
2 Caslon Analytics, “Adult Content Industries,” http://www.caslon.com.au/xcontentprofile. htm (accessed February 2008).
3 Ben Edelman, “Domains Reregistered for Distribution of Unrelated Content: A Case Study of ‘Tina’s Free Live Webcam,’ ” http://cyber.law.harvard.edu/archived_content/people/edelman/ renewals/ (accessed February 2008).
4 David Cay Johnston, “Indications of a Slowdown in Sex Entertainment Trade,” New York Times, 4 January 2007, final edition.
5 Dan Ackman, “How Big Is Porn?” Forbes.com, 25 May 2001, http://www.forbes.com/ 2001/05/25/0524porn.html (accessed February 2008).
6 US Census Bureau, 2005 E-commerce Multi-Sector Report (25 May 2007); US Census Bureau, E-stats (16 May 2008).
7 Tancer, Click.
8 Caslon Analytics, “Adult Content Industries.”
9 Some examples might make this logic more clear. Suppose that the industry revenue numbers were correct, but that twice as many consumers actually view pornography as admitted it in the surveys, and rather than 20% of them paying for it, all of them paid for it. This would result in each person paying $6.14 per month. This is outside the range of monthly rates reported by Caslon Analytics, although it could be obtained if people use the cheapest sites and only subscribed half their months. But if the revenue numbers were also ten times too large, each person would be paying $0.61 per month. This seems much too small. Thus, the data for both revenue and consumption are probably not both severely biased in the directions sometimes feared in the literature on pornography.
10 See the Pew Research Center Survey Reports at http://people-press.org/.
11 Ibid.
12 Caslon Analytics, “Adult Content Industries.”
13 Edelman, “Domains Reregistered for Distribution of Unrelated Content.”
14 Tancer, Click.
15 Ibid.
16 The minutes-per-visit number is taken from Tancer, Click
17 Caslon Analytics, “Adult Content Industries.”
18 Todd Kendall, “Pornography, Rape, and the Internet” (working paper, John E. Walker Department of Economics, Clemson University, 2007).
19 Winai Wongsurawat, “Pornography and Social Ills: Evidence from the Early 1990s,” Journal of Applied Economics 9, no. 1 (May 2006): 185–213.
20 Betsey Stevenson, “The Internet and Job Search,” in Studies of Labor Market Intermediation, ed. David H. Autor (Chicago: University of Chicago Press, 2007), 67–86.
21 K. Doran and Joseph Price, “The Effect of Internet Pornography on Marital Intimacy,” in progress.
22 Samuel Cameron, “The Economics of Pornography,” in Economics Uncut: A Complete Guide to Life, Death, and Misadventure, ed. Simon W. Bowmaker (Cheltenham, U.K.: Edward Elgar Publishing Limited, 2006), 171–92.
23 Elizabeth Landau, “When Sex Becomes an Addiction,” CNN.com, 5 September 2008, http://www.cnn.com/2008/HEALTH/09/05/sex.addiction/index.html (accessed September 2008).
24 Ibid.
25 Caslon Analytics, “Adult Content Industries.”
26 Lisa Beers, “Making Easy Profit with Public Domain,” ArticleAlley.com, 18 June 2006, http:// www.articlealley.com/article_64452_81.html (accessed February 2008); Paul Sloan, “Free and Easy. How Material in the Public Domain Can Be Turned into Your Own Private Revenue Stream,” CNNMoney.com, 15 March 2007, http://money.cnn.com/magazines/business2/business2_ archive/2006/12/01/83949 75/index.htm (accessed February 2008).
27 See “Amazon Sales Ranks for Books,” http://www.fonerbooks.com/surfing.htm (accessed February 2008).
28 Alex Goldman, “Top 23 U.S. ISPs by Subscriber: Q3 2008,” 2 December 2008, http://www. isp-planet.com/research/rankings/usa.html. This is an underestimate of the market share of top ISPs because it was not possible to obtain data for several key players.
THE MORAL BASES FOR LEGAL REGULATION OF PORNOGRAPHY
1 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
2 Roth v. United States, 354 U.S. 476 (1957).
3 Ibid., 488, 489.
4 Ibid., 489.
5 Ibid., 484.
6 Ibid.
7 Universal Declaration of Human Rights, Articles 19 and 29, adopted by the United Nations General Assembly on 10 December 1948, www.un.org/en/documents/udhr (accessed 17 February 2010).
8 Counsel of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (Strasbourg: 1998), 10.
9 Dignitatis Humanae, 7 December 1965, section 7, http://www.vatican.va/archive/hist_ councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatis-humanae_en.html (accessed 17 February 2010).
10 Jacobellis v. Ohio, 378 U.S. 184, 199 (1964).
11 Stanley v. Georgia, 394 U.S. 557, 568 (1969).
12 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 (1973); Miller v. California, 413 U.S. 15, 24 (1973).
13 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
14 Ibid., 582.
15 Ibid., 574, 575.
16 Osborne v. Ohio, 495 U.S. 103 (1990).
17 Oliver Lewis, “Fear of Online Crime,” Pew Internet news release, 2 April 2001. http://www. pewinternet.org/Press-Releases/2001/Fear-of-Online-Crime-aspx (accessed 17 February 2010).
18 Osborne v. Ohio, 495 U.S. 103, 109 (1990).
19 United States. v. Williams, 553 U.S. 285 (2008), 128 S.Ct. 1830, 1846 (2008).
20 Roth v. United States, 354 U.S. 476, 485 (1957).
21 Ibid., 484.
22 Butler v. Michigan, 352 U.S. 380, 381 (1957).
23 Roth v. United States, 354 U.S. 488, 489 (1957).
24 Ibid.
25 Butler v. Michigan, 352 U.S. 380, 383 (1957).
26 Ibid.
27 A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” et al. v. Attorney General of Massachusetts, 383 U.S. 413, 419 (1966).
28 Miller v. California, 413 U.S. 15, 24 (1973).
29 For the sake of public
morality, that is. As we saw in the opening paragraph, all sorts of pornographic conduct and works are regulated for non-moral reasons.
30 Alexander Bickel, “Dissenting and Concurring Opinions: I,” Public Interest 22 (Winter 1971): 25–26; see Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
31 Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford, U.K.: Clarendon Press, 1993).