4 In April, 2011, it is back to position #4, see
5
6 Udaan Online Survey, quoted in Bollywood Hungama News Network (6 July, 2010).
7 ‘Typosquatting’, also called URL hijacking, is a form of cybersquatting which relies on mistakes such as typographical errors made by Internet users when inputting a Website address into a Web browser. Should a user accidentally enter an incorrect Website address, they may be led to an alternative Website owned by a cybersquatter. Wikipedia (
8 It is important to note that in India, pornography is legally defined as obscenity. See Rana (1990).
9
10
Betty McLellan
Pornography as Free Speech: But is it Fair?
For its legitimation and continued existence in Western societies, pornography depends on a narrow interpretation of the principle of Freedom of Speech, and while the right to free speech is guarded jealously by all who live under a democratic system of government, an interpretation which privileges the rights of one individual over another is not sustainable. In such circumstances, it is inevitable that speech will be available in much greater measure to those individuals with power and influence than to those with little or no power.
In Western democracies, politicians, business and community leaders as well as the media have ready access to speech, which means that the views of the powerful and those who agree with them are freely available to all, while the views of others rarely see the light of day. It is evident, too, that the current system gives men more access to speech than women, non-Indigenous more access than Indigenous, the wealthy more access than those who live in relative poverty.
Such a situation leads me to ask: Can there be freedom of speech in a truly democratic sense unless it is freely available to all? Can there be free speech when it is not also fair speech? How can pornography be described as a free speech issue when it is clearly not fair to those performing in it and to women in general? Following a brief discussion of the inconsistencies surrounding the principle of Freedom of Speech using recent high-profile examples, I point to the feminist maxim ‘the personal is political’ to shed light on the relationship of women to pornography and to support the view that pornography is not fair speech.
Freedom of Speech
There are many arguments in academic literature supporting the democratic principle of freedom of speech.1 The most popular argument and the one used most often in the general community is called ‘the Argument for Self-Determination’. Freedom of Speech, sometimes referred to as Freedom of Expression, encompasses more than just speech. It includes freedom to say, to read, to do and to go.2 Those who choose to interpret Freedom of Speech in absolute terms see it as their own individual right to do and say and read and view whatever they like regardless of how their speech and actions may affect others. It is this absolute focus on the individual that is unsustainable due to the fact that it takes little account of the rights of others. When one person demands the right to do whatever he/she likes, it follows that others will be affected and, in many cases, have their own rights to freedom of speech curtailed.
In the Preface to Only Words, Catharine A. MacKinnon alerts readers to the fact that her book “attempts to move people to face the reality of harm done through what is called speech …” The aim of her book, she explains, is “to stop the harm and open a space for subordinated voices, those shut down and shut out through the expressive forms inequality takes” (1994, p. x).
Those who live under a democratic form of government hold democracy up as superior to all other forms of government precisely because it advocates freedom and equality for all its citizens. One would expect, therefore, that an analysis of the inequalities inherent in the way freedom of speech is interpreted would be carried out as a matter of urgency. But no democratic nation has yet had the courage to confront the power elite’s unquestioned right to free speech. It is obvious that those with more power in society have much greater access to speech than those with less power, and that the powerful can subordinate and exploit the powerless with impunity in the name of free speech.
In Unspeakable: A feminist ethic of speech, I introduced the concept of Fair Speech and set up an oppositional relationship between free speech and fair speech, similar to the relationship between free trade and fair trade. My aim was to draw attention to the fact that ‘free’ is not always ‘fair’ and that, for the principle of freedom of speech to mean anything at all, it must incorporate fairness. There is an illusion in Western societies, perpetuated from time to time by government propaganda, that anything called ‘free’ is necessarily good. Free trade, free speech, free choice must all be good because they are ‘free’. Individual freedoms are prized and any hint that governments may attempt to reduce the freedoms enjoyed by mainstream citizens to allow for greater freedom for those on the margins usually brings howls of protest from many in the mainstream. Consequently, fairness is pushed aside and inequality and injustice are allowed to continue in the name of free speech.
Such a situation of inequality and injustice has led me to the conclusion that for free speech to have any legitimacy at all, it must also be fair speech. If justice and fairness are to be served, then any activity which invokes the defence of freedom of speech must be scrutinised on two counts: the power dynamics involved, and the potential for harm to others.
When Free Speech is not Fair Speech
The controversy around the WikiLeaks saga reveals that freedom of speech is not a simple matter. Indeed, there is evidence to show that the legal right to free speech is used by some, including the United States government, as a matter of convenience.
The release in October and November, 2010 of secret United States documents and cables, previously leaked to WikiLeaks by named and unnamed sources, saw the US government and its allies loudly condemning the action, with some calling for the group’s spokesperson, Julian Assange, to be arrested and charged with treason. This prompted left-wing libertarians around the world to ask with one voice: Where is the United States government’s commitment to freedom of information and freedom of speech? Defending WikiLeaks’s action, they reminded politicians that, under a democratic rule of law, people have a right to know and a right to speak and that Julian Assange was doing nothing illegal.3
The United States Administration had a very difficult situation on its hands. While the constitutional amendment granting individuals the right to freedom of speech is always held up as the primary and central freedom enjoyed by US citizens, on this particular issue they were prepared to make an exception based on the possible harms that could come from the leaking of their sensitive documents.
My aim in raising the dilemma the United States finds itself in over the WikiLeaks controversy is not to analyse the controversy and present an opinion here but, rather, to show that the defence of freedom of speech is not always the simple matter it is made out to be when politicians, community leaders, libertarians and others use it to dismiss feminist arguments against pornography with the accusation of ‘censorship’. As with the WikiLeaks controversy, it is more complex, and deserving of more thoughtful analysis. Indeed, every activity, including pornography which uses the defence of free speech ought to be subjected to the test of fairness. It must be asked: Will this particular speech, this particular activity, cause harm or offence to anyone else?
While the charge of inconsistency can be aimed squarely at the US government on the WikiLeaks issue, left-wing libertarians and others who call for absolute freedom of speech also reveal their inconsistency on issues involving free speech which they deem to be unfair. Two recent examples involve religious vilification and
paedophilia.
Free Speech versus Religious Vilification
On 9 September, 2010, Florida Pastor, Terry Jones, announced that he would burn copies of the Koran on 11 September in protest against the attacks on the World Trade Centre by Muslim extremists in 2001. His announcement sparked outrage around the world and was openly condemned by President Barack Obama and Secretary of State Hillary Clinton, by the Vatican, by Muslim clerics, and Muslim and Christian people alike. When Pastor Jones’s Internet service provider cancelled his Website, he complained that his freedom of speech rights had been violated (
This is a clear example of free speech which was not fair speech and many people around the world – including free-speech advocates across the whole spectrum from right to left – spoke out loudly against Pastor Jones’s intended action and in favour of the Internet provider’s action. In doing so, they revealed their belief that speech which does harm to others is to be condemned.4
Free Speech versus the Promotion of Paedophilia
In November, 2010, Amazon.com was forced by public protest to remove from its Kindle reader an e-book by Phillip R. Greaves titled The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. In this book, the author gives advice on how to use children for one’s own sexual pleasure, how to break the law and avoid being caught.
Initially, Amazon.com responded to the storm of criticism and protest by relying on the defence of freedom of speech. “Amazon.com believes it is censorship not to sell certain titles simply because we or others believe their message is objectionable” (
Melinda Tankard Reist, in her 12 November, 2010 opinion piece, asked the question which was on every protester’s lips: “Should ‘freedom of speech’ trump a child’s right to be safe and not be harmed?” (
The storm of protest via online opinion pieces, comments and blogs from people concerned about the harm this book could do to children, caused Amazon. com eventually to remove the title from Kindle. In this case, the perceived right to absolute freedom of speech was overridden by the urgency in the minds of the protesters to protect children.
While governments and free speech advocates may differ in their judgement about which issues require a less than absolute reliance on the defence of freedom of speech, there is one issue on which they all agree: Pornography. As if with one voice, they proclaim that pornography is a freedom of speech issue and any suggestion, even when backed up by solid evidence, that it does ongoing harm to women and irreparable damage to relationships, is met with disdain and labeled ‘censorship’. In the case of pornography, it seems that freedom of speech is more important than a woman’s right to equality, dignity and respect.
A Word about Censorship
There seems to be an irrational fear on the part of Western governments, lawyers and other devotees of absolute freedom of speech, that to censor anything at all will result in the eventual loss of all human rights. While such a fear is unfounded, the ‘slippery slope’ argument against censorship is vigorously supported in the case of pornography, regardless of all the evidence of the harm it does to women and children. It is remarkable, in my mind, that supposedly intelligent people are blind to the inconsistencies inherent in their opposition to censorship. Vehemently opposed to the censoring of pornography, they happily live in a society which has all manner of laws governing behaviour, including defamation laws, classification laws, road rules, and laws against physical and sexual violence. In order for people to live together in fairness and equality, any individual behaviour that has the potential to cause harm to others ought to be subject to laws governing behaviour.
Pornography: Free Speech which is not Fair Speech
If ‘the personal is political’ as early Second Wave feminists argued, then pornography as freedom of speech, as individual choice, as harmless fun, is called into question. Anything which happens to women at a personal level is also political and, as with religious vilification and paedophilia, pornography clearly fails the test of fairness. When pornography is scrutinised on the basis of the 2 counts mentioned earlier: power dynamics and the potential for harm, it fails on both counts.
Power dynamics
The power differential in pornography involving children is clear: adult men exploiting children, both girls and boys. The power differential in pornography involving adults is also clear to many, but discounted as unimportant by producers and consumers of pornography: mostly men (supported by a male-dominated society, by a global multi-billion dollar industry and by politicians and high-profile free speech advocates) exploiting women. The power differential is overwhelming.
Potential for harm
It is unfortunate that repeated and long-term discussion and research about the harms caused by pornography has not been able to change legal reliance in the United States on the defence of freedom of speech. As I see it, the evidence is indisputable that pornography does cause harm to women, to men and to relationships.
Harm to Women: Women are dehumanised, humiliated and reduced to body parts by pornography (MacKinnon, 1987, p. 176). It is “hate propaganda” against women, “violence and contempt openly expressed” (Whisnant, 2004, p. 18). Women are depicted as subordinate to men, as enjoying hurt and pain, as existing only to give sexual stimulation to those men who find pleasure in the humiliation and pain of women (McLellan, 2010, pp. 68–73; see also Jensen this volume).
For as long as pornography exists, the harms to all women will continue: a lowered self-esteem; a confused and embarrassed self-image; a struggle to rise above the image of women perpetuated in pornography; a losing battle to reach and maintain equality with men; the desire to be treated with respect and dignity by one’s male colleagues in the workplace only to be disappointed again and again by those whose image of women is affected by their reliance on pornography. Harm to Men: Men, too, are harmed by pornography. The sex they are presented with in pornography is:
… debased, dehumanised, formulaic, and generic, a kind of sex based not on individual fantasy, play, or imagination, but one that is the result of an industrial product created by those who get excited not by bodily contact but by market penetration and profits (Dines, 2010, p. x).
It is lonely sex. With no actual partner, “… there is no before and after, sex occurs in isolation … There is no communication … no emotional resonance to sex …” (Walter, 2010, p. 109). While a man may wish for a satisfying sexual relationship in real life, once he starts using pornography, it often happens that sex with his partner never quite measures up to his fantasies. Dolf Zillman, a leading researcher in the field, found that long-term use of pornography “… breeds discontent with the physical appearance and the sexual performance of intimate partners” (Zillman, 1989, pp. 127–58).
Harm to Relationships: The lack of respect for women which is the basis of pornography makes equality in relationships impossible. Many men fool themselves into believing that the pornography they consume will stay in the realm of fantasy, thereby keeping it separate from their real-life relationships with women, but “… the more men watch porn, the more the stories become part of their social construction of reality” (Dines, 2010, p. 67). Whether in intimate relationships, in social situations or in the workplace, women will always be seen by men who use pornography as less than equal. The subordinate status given to women in pornographic depictions carries over into every other part of life.
Conclusion
If equality between women and men is ever to be a reality, then pornography has to go. Any activity which encourages men to enjoy, and be sexually turned on by, images of women being hurt and demeaned and humiliated, any activity which subordinates women to men in such an obvious way, will
never result in equality and fairness. In free speech terms, pornography robs all women of their free speech rights. In feminist terms, it is not simply a matter of personal choice. It is a highly political activity. The power dynamics involved and the harms done to women show pornography to be an activity privileging men’s desires over women’s rights.
Recent examples, cited earlier, of the United States government and free speech advocates suspending their absolute dependence on freedom of speech in the interests of fairness show that it can be done. Pornography does harm to half the world’s population in the name of free speech. The question must be asked: Is free speech really free if it is not free and fair for all?
Bibliography
Campbell, Tom (1994) ‘Rationales for Freedom of Communication’ in Tom Campbell and Wojciech Sadurski (Eds) Freedom of Communication. Dartmouth Publishing, Aldershot, pp. 17–44.
Dines, Gail (2010) Pornland: How Porn Has Hijacked Our Sexuality. Beacon Press, Boston; Spinifex Press, North Melbourne.
MacKinnon, Catharine A. (1987) Feminism Unmodified: Discourses on Life and Law. Harvard University Press, Cambridge, MA.
MacKinnon, Catharine A. (1994) Only Words. HarperCollins, London.
McLellan, Betty (2010) Unspeakable: A feminist ethic of speech. OtherWise Publications, Townsville.
Tankard Reist, Melinda (12 November, 2010) ‘Why is Amazon promoting sexual abuse of children?’ The Drum Unleashed,
Walter, Natasha (2010) Living Dolls: The Return of Sexism. Virago, London.
Whisnant, Rebecca (2004) ‘Confronting Pornography: Some Conceptual Basics’ in Christine Stark and Rebecca Whisnant (Eds) Not For Sale: Feminists Resisting Prostitution and Pornography. Spinifex Press, North Melbourne, pp. 15–27.
Zillman, Dolf (1989) ‘Effects of Prolonged Consumption of Pornography’ in Dolf Zillman and Jennings Bryant (Eds) Pornography: Research Advances and Policy Considerations. Erlbaum, Hillsdale, NJ.
Big Porn Inc: Exposing the Harms of the Global Pornography Industry Page 38