Res Publica Vol.II no.2 [1996]

PORNOGRAPHY AND CIVIL RIGHTS: THE LIBERAL CASE AGAINST PORNOGRAPHY

by ANDREA BAUMEISTER*

Susan M. Easton, The Problem of Pornography: Regulation and the Right to Free Speech, London and New York, Routledge, 1994, s pb, 0 41509 183 7. Catherine Itzin, ed., Pornography: Women, Violence and Civil Liberties ~ a Radical New View, New York, Oxford University Press, 1993, s pb, 0 19825 755 4. In their assessment of the impact of pornography both Easton's book and Itzin's collection take as their starting point the now familiar feminist conception of pornographyas the sexually explicit depiction of women's subordination and therefore as a significant factor in the perpetuation of sex discrimination and sexual inequality. Both see the problem of pornography essentially in terms of civil rights - - a standard liberal conception- a point they underline by interesting comparisons between sexual and racial inequality and discrimination. Since, therefore, pornography is incompatible with such fundamental liberal values as equality and autonomy it is the concern of both volumes to refute the analysis of liberals such as Bernard Williams and Ronald Dworkin, 1 who have argued that a liberal position implies a permissive stance vis-~ovispornography. Yet, although their aims are similar, there are notable differences in the manner in which Itzin and Easton approach this task: whereas Itzin's collection focuses on questions of equality, Easton explores the implications of arguments from autonomy. Furthermore, whilst Easton attempts a cautious and restrained assessment of liberal feminism, invoking J.S. Mill's classical arguments, Department of Politics, Universityof Stirling. B. Williams, Obscenity and Film Censorship (Cambridge: Cambridge University Press, 1981), and Ronald Dworkin, "Do we have a Right to Pornography", in A Matter of Principle (Oxford: Oxford UniversityPress, 1986), 335-72.

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Itzin offers a collection of rather more radical, forceful and passionate essays, including contributions by Catharine MacKinnon, Andrea Dworkin and Susan Kappeler, and one which might seem surprising in its being predicated on liberal basics. But such surprise is misplaced. ~Radical" and "liberal" feminisms are not necessarily inimical; and indeed, Itzin's volume constitutes an intriguing illustration of the point. The argument from equality it presents rests upon the impeccably liberal claim that pornography undermines women's right to equal treatment. This charge springs from an analysis of the relationship between pornography and various harms: the harm done to participants in pornography, the injuries inflicted on the victims of pornographyinspired crimes, the detrimental effect of pornography on the general position of women and the harm done to consumers of pornography's distorted depictions of femininity and masculinity. Let us briefly consider these sorts of harm w for they certainly constitute an impressive list. A number of contributors to Itzin's collection, including Catharine MacKinnon, Diana Russell and Catherine Itzin herself, stress the harm done to the participants in pornography. MacKinnon, for example, argues not only that women are frequently coerced into performing for pornographers, not least because they lack viable economic alternatives, but also that pornography is implicated in the systematic denial, to women, of those very qualities m autonomy, equality and freedom of action - - which are implicit in the notion of consent. For MacKinnon the position of women in patriarchal society is akin to that of children, who are already given special legal protection because of their inability to give free and informed consent. But this analogy is surely problematic, reinforcing as it does existing gender stereotypes and denying women the ability properly to reason and thus to shape and control their lives. Furthermore, it is far from clear that banning pornography is the most appropriate legal remedy for coercion and economic dependency. 2 Why not strengthen and enforce the Equal Pay Act? To turn to the second sort of harm: Ray Wyre and Diana Russell develop very similar models of the relationship between pornography and sexual violence. Both claim that pornography plays a significant role at each of a number of identifiable stages in the causal histories of rape 2

See, for example, R. Dworkin's critique of MacKinnon in R. Dworkin, "Women and Pornography", New York Review of Books, 21st October 1993, 36-42.

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and sexual violence. Russell, for example, maintains that in addition to increasing men's predisposition to rape, pornography also weakens their internal and social inhibitions "against acting out their desire to rape" (at 321). This argument is further supported by an appeal to psychological and social scientific research. Thus, in her article Itzin concludes that "pornography desensitizes men, increases attitudes ofcaUousness towards women, makes men less sympathetic to rape victims and more sympathetic to rapists, increases rape myths and the self-reported likelihood of men to commit rape, and increases aggressive behaviour to women" (at 560). But again, as is well known, the statistics here are open to conflicting interpretation; and even/fItzin et al. are right to claim the causal link they do, it is nonetheless far from clear that it is pornography which is the main causal factor in such behaviour. The contributions by Peter Baker and Corinne Sweet, finally, examine the negative impact of pornography upon "ordinary" male consumers, claiming that it both distorts their attitudes to women and undermines the relationships they are able to have with women. Maybe so: but the points above apply also here. Is it pornography aboveall which is responsible for this? But it is the methodological assumptions underpinning many of the arguments in these essays which are centrally problematic. As Deborah Cameron and Elizabeth Frazer note in their excellent piece, the two most influential feminist accounts of the effects of pornography on its users rely on rather simplistic causal models. The copy-cat model, implicit in the famous Ordinances drafted by MacKinnon and Dworkin, is based upon the idea that the consumers of pornography will be tempted to act out the scenarios depicted in pornography. However, not only is the copy-cat model unable to explain many incidents of sexual violence, the causal model implicit in the copy-cat account is overdeterministic. On the other hand, the addiction model, as advocated by, for example, Corinne Sweet, is too narrowly focused upon the psychopathologies of individuals, thus excluding from consideration the role that pornography plays in gender hierarchy and conflict: by intimidating women collectively, pornography helps to maintain male supremacy. But that, of course, is a different matter - - and one which it is difficult both to make from a liberal point of view and to legislate against whether or not on a liberal basis. While Cameron and Frazer do believe that there is a link between pornography and sexual violence, they do not see this as a relationship of cause and effect. Drawing attention to the wider cultural meanings in the light of which porno-

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graphy is produced, they argue that the main impact of pornography is to be found in the construction of desire. Thus, pornography shapes desire by transmitting the idea that transcendence or "subjectification" and mastery are intrinsic elements of sexual pleasure. Consequently, pornography implies that sexual pleasure requires the objectification of the Other and the imposing of one's will upon this Other. The consumer of pornography is therefore invited to enhance his sense of being a subject by treating the Other in sexual encounters as a mere object to be controlled and made to do whatever he (s/c) chooses. However, while such a more sophisticated analysis may best capture the actual impact of pornography, it is by its very nature unlikely to deliver the clear proof of/dent/fiab/e harm required, ifa court of law is to ban pornography. Furthermore, as Susan Easton argues in The Problem of Pornography, even if feminists could prove that pornography causes identifiable harm, the legislature would in all likelihood merely balance the harm pornography does to women against the "harm" that banning pornography would do to pornographers and consumers. A sort of harm which liberalism cannot properly recognise, harm which is not done to identifiable individuals, is unlikely to be able to constitute the object of liberal legislation. In the light of these difficulties the claim that pornography violates women's right to equal treatment becomes potentially decisive. Thus, both James Check and Catharine MacKinnon maintain, in Itzin's volume, that a sincere belief in equality is fundamental to liberal conceptions of personhood. Liberals value freedom of speech because they regard it as a means of expressing equal concern for and ensuring the equal treatment of all persons. Consequently, equality should be regarded as the more fundamental liberal commitment and any conflict between equality and freedom of speech should be resolved in favour of women's right to equal treatment. This line of thought is further pursued by MacKinnon when she suggests that "pornography is more act-like than thought-like" (at 484). If pornography is an act rather than an expression, it does not qualify for the special protection extended to freedom of speech. However, this line of argument has been attacked by critics such as Ronald Dworkin, 3 who maintains that the mere fact that pornography has the effect of sexually arousing its audience does not change its status as speech and is therefore not a sufficient reason for

3 Supran.2.

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denying it the protection extended by the first amendment of the American Constitution. Again, liberalism seems inadequate here to settle actual conflicts between equality and freedom of speech, even/f the latter is structurally dependent on the former in its theoretical constitution. (Furthermore, I would add, MacKinnon is anyway in danger of seriously underestimating the communicative content and power of pornography. It is precisely because pornography communicates a powerful set of ideas regarding sex and the nature and character of w o m e n - such as transcendence and mastery as essential elements of sexual pleasure - - that pornography is morally problematic.) But, quite apart from the controversies surrounding pornography's status as act or expression, an appeal by feminists to the liberal right of equal treatment raises anyway a number of basic difficulties. In the first instance, the language of liberal rights is in many ways not well placed to capture the type of harm which many feminists feel is central to the pornography debate. First, as I have already suggested, if pornography is understood to occasion injury to women as a group, inasmuch as it defines what it means to be a woman, it is difficult to see how the point can be made within standard liberal discourse, since for liberalism rights holders are essentially individuals. O f course, the by now well established feminist critique of liberal conceptions of equality is implicit in the conception of equality invoked by many of the contributors to Itzin's collection. Feminist writers, such as Carol Pateman and Iris Marion Young 4 have argued that the liberal appeal to formal equality is too simplistic and fails to take into account significant differences between men and women in terms of their socioeconomic position, their experiences and the values they subscribe to. Young, for example, maintains that because of the different experiences and perspectives of different social groups, no one group can claim to be able to speak for another. Consequently, the liberal appeal to formal equality and impartiality favours the interests of the dominant group, as the members of the dominant group will be able to "assert their experience and perspective on social events as impartial and objective". 5 Numerous feminists have therefore argued in favour of a reconceptua4 5

C. Pateman, The Sexual Contract (Cambridge: Polity Press, 1988), and I.M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990). I.M. Young, "Polity and Group Difference: A Critique of the Ideal of Universal Citizenship", Ethics 99 (1989), 250-75, at 262.

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lisation of equality on the basis of the notion of "different but equal" and many of the contributors to Itzin's collection clearly base their analysis upon conceptions of equality which invoke considerations of difference. As I have noted, MacKinnon herself, for example, argues that women should be offered special legal protection because of their weak economic position. However, while from a feminist perspective this may constitute a more satisfactory analysis of equality, the policy implications of such a more complex position are inevitably on many occasions far from clear cut. Furthermore, appeals to considerations of difference in the context of liberal conceptions of equality in general are controversial and have frequently been regarded by liberals as an attack upon the liberal commitment to neutrality. Therefore, in as far as feminists invoke the notion of group rights and considerations of difference, they may find it difficult to convince liberal sceptics of the need to restrict pornography because it undermines women's claims to equal treatment. In the light of these difficulties the argument pursued by Susan Easton in The Problem of Pornography offers a potentially promising alternative for feminists who regard pornography as incompatible with a commitment to liberal values. Easton argues that the protection liberals such as J.S. Mill wish to extend to speech rights is underpinned by a more fundamental commitment to autonomy and to diversity; and that such a typically Millian commitment is incompatible with a permissive attitude to pornography. Whereas the successful development of autonomy requires the freedom to develop without impediments and the opportunity to realise one's potential, Easton argues, pornography stifles women's development by perpetuating a conception of women in terms of a very limited set of negative ideas and images. Pornography's portrayal of women as subordinate and passive precludes the development of other, positive dimensions of women's behaviour and abilities. Furthermore, not only does pornography constitute a threat to women's autonomy, but the very homogeneity of the message conveyed by pornography is at odds with a regard for the individuality and diversity which is central to Mill's conception of autonomy in general. Thus, while the notion of selfdevelopment implied in Mill's conception of autonomy emphasises individual choice in the context of a diversity of life-styles, the monotonous and undemanding character of pornography suppresses rather than fosters choice and diversity.

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Consequently, Easton rejects the attempts by pornographers to defend pornography in terms of sexual freedom and diversity. For her the rich conception of autonomy found in Mill's work is very different from the thin "autonomy" the pornographers use to defend sexual freedom. Nor, in her view, can pornography be protected by an appeal to Mill's defence of minority interests and opinions. Since pornography expresses an accepted mass culture, the regulation of pornography can hardly be constructed as the imposition of majority standards upon an embattled minority: but, quite to the contrary, since pornography constitutes an aspect of mass culture, it should be viewed in terms of Mill's attack upon the potentially oppressive character of majority norms. Therefore, although, from a Millian point of view, pornography could theoretically be retained alongside conceptions and depictions of human sexuality which would challenge the messages implicit in porno graphy, Easton argues that it is difficult to see "how these other forms will ever develop if the depersonalised and reductionist view predominates" (at 44). While Easton presents a strong argument (which clearly benefits from her cautious and restrained approach) in favour of the restriction of pornography on the basis ofa Millian conception of autonomy, her case against pornography cannot but be subject to the same tensions as Mill's defence of autonomy. Implicit in his conception of autonomy is a commitment to self-realisation in terms of the full development of our capacities and abilities. However whereas Mill regards autonomy as a universal human interest, he is also aware that many people prefer to follow the standards and fashions dictated by their society rather than engage in the complex and potentially disruptive task of self-discovery. In the light of these difficulties, he invokes his notorious higher and lower pleasures distinction, a distinction Easton appears to endorse when she condemns pornography for being intellectually undemanding and incapable of promoting spiritual development. Mill defends this distinction by arguing that "all those who are equally acquainted with and equally capable of appreciating and enjoying both "6 types of pleasure will consistently prefer the pursuit of higher pleasures. Those who "choose" lower pleasures do not choose them voluntarily, as they have lost the capacity for higher pleasures. Consequently, Mill argues, those who reject an autonomous life have lost the capacity for it. 6

J.S. Mill, Utilitarianism (London:Dent & Sons Ltd, 1972), 8.

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However, Mill's criteria of equal susceptibility and equal acquaintance are not neutral in a substantive sense. As commentators such as Haskar and Lindley 7 have observed, since knowledge alters people, what is good for an autonomous person may prove to be bad for a heteronomous one. The acquisition of knowledge is not simply an accumulation of facts helpful to the formation of judgments. Acquiring knowledge is an active process involving interactions between the agent and the data presented. Therefore, the acquisition of knowledge tends to change people's characters and what they take to be in their interest. Similarly, what is good for a person equally susceptible to several options may prove to be far from acceptable to one not susceptible to one or more of them. Moreover, if knowledge changes us, Mill's commitment to the pursuit of autonomy seems to be at odds with his emphasis on diversity and experimentation. If at the end of our experiment with autonomy we prefer an autonomous life-style to a heteronomous one, then this may not reflect the inherent superiority of autonomous life-styles, but may simply be due to the fact that the pursuit of autonomy has changed our character and our perception of what is in our interest. Consequently, once we acknowledge the impact of knowledge upon our character, it becomes apparent that autonomy is not simply a life-style we choose in preference to others, but actually constitutes a position from which choice takes place. Easton argues that pornography ought to be restricted so as to enable us to develop and experience alternative, pornography-free models of society and her autonomy-based case against pornography appears to follow Mill's line of argument. She maintains that once we have experienced both a pornography-dependent and a pornography-free society, we will be able to decide rationally between these two ways of life. Since we are already familiar with living in a pornography-dependent culture, Easton urges us to engage in the experiment of living in a pornography-free society. However, such an "experiment" would be liable to bias us in favour of such a society. Once we enter into this experiment, a pornography-flee society would not just be one of the choices available to us, but would constitute the position from which choice would take place. Easton could, of course, respond by arguing that the existing situation influences us unduly in favour of permitting pornography. But, given that Easton invokes the choice criterion of 7

V. Haskar, EqualitT, Liberty and Pe~ectionism (Oxford: Oxford University Press, 1979), and R. Lindley, Autonomy (London: Macmillan, 1986).

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value in her defence of a pornography-free society, she needs to show that the choice of such a society is qualitatively different from the preference for a society which permits pornography. And t h a t - yet again - - is something which a liberal position, with its commitment to substantive neutrality, precludes. If the society we live in influences our character, a choice in favour of a pornography-free society cannot be defended by arguing that once we would be familiar with such a society we would prefer it. Although Easton may well be correct to suggest that a belief in the value o f a Millian conception of autonomy implies a commitment to the regulation of pornography, the value of autonomy itself remains controversial, and necessarily so if the autonomy concerned is to be recognisably liberal. The difficulties Easton and Itzin face in their attempts to highlight the incompatibility between a commitment to the liberal values of equality and autonomy and a permissive attitude to pornography are indicative of the dilemma feminists in general attracted to such a position will have to confront: on the one hand, arguments, such as Itzin et al.'s, which take on board feminist critiques of the liberal positions in general, are unlikely to convince liberals. On the other hand, arguments such as Easton's, which take a classical liberal position as their starting point, cannot avoid the same objections that liberals in general have to answer.

Feminists who wish to see effective legislation against pornography enacted will have to establish a coalition broad enough to overcome potential opposition to such legislation. However, the dilemmas highlighted by the two strategies adopted by Itzin and Easton suggest that they will find it difficult to do so: arguments against pornography grounded in a liberal position are neither decisive against countervailing arguments similarly grounded nor even clearly successful in themselves; nor, of course, will they convince those who do not accept the precepts of liberalism. A more radical approach, on the other hand, is liable both to alienate potential liberal allies and to fall foul of the constraints that liberalism necessarily places on legislation. Nevertheless, Easton's position may offer some scope for feminists opposed to pornography. Since liberals have often been amongst the most vocal and influential opponents of legislation aimed at regulating pornography, an argument which Aid persuade liberals of the need to restrict pornography could well prove decisive; and it may be that my

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qualms about her argument can be o v e r c o m e , and a way found through the apparent impasse I have outlined. Certainly, liberals are likely to be sensitive to the careful distinction drawn between the restriction of pornography and attempts to undermine sexual freedom, a distinction feminists would be well advised to insist upon if their campaign against pornography is not to adopt or collapse into positions dear to conservative moralists. And such alliances with conservative groups, whose ultimate aims and objectives are inimical to feminism, are surely to be a v o i d e d - as many feminists, critical of the willingness of radical feminists such as Catharine MacKinnon to enter into alliances with right wing conservatives, have insisted. 8 It must surely give cause for concern that such an alliance has, for example, given rise to a Canadian censorship law which has been used by conservative moralists to ban gay and lesbian literature as well as feminist writings by well-known scholars such as bell hooks. Whether or not the difficulties which surround Easton's argument can be overcome, and liberal "autonomy" come to form the basis of a distinctively liberal argument against pornography remains to be seen.

8

R. Dworkin, UPornography:An Exchange", New York Review of Books, 3rd March 1994, 48-49.