Sunday, March 17, 2013

Should pornography be considered "speech"? (Part One)

This post considers whether or not pornography should be covered by the free speech principle (FSP). According to this principle, all (or most) forms of speech should be free from government censorship and regulation. But this raises the question: which types of symbolic productions are covered by the FSP? And is pornography among them?

This isn’t the first time I’ve talked about pornography and free speech. Back in December (2012 for those of you reading this in the distant future), I looked at an argument claiming that pornography qua speech act subjugated and silenced women. That argument interested me largely for its unique deployment of speech act theory, which is among my research interests. The arguments I look at in this post and the next hold no particular fascination for me. I just happened to read a paper one day and thought it might be worth blogging about.

The paper in question was Andrew Koppelman’s “Is Pornography “Speech”?”, which appeared in the journal Legal Theory several years ago. In it, Koppelman looks first at a general argument pattern claiming that pornography is not covered by the FSP, and then at two specific instantiations of that pattern. I’ll follow suit in this post. Ultimately, Koppelman disagrees with these arguments. I think I do too.

A couple of caveats at the outset. For those of you who have read Koppelman’s paper — or who feel inclined to do so after reading this post — be aware that I take some liberties with his original discussion. To be precise, I wasn’t too impressed by the way in which he laid out the general argument pattern, nor with how he explained its connection to the two specific versions that he critiques. I try to improve upon this aspect of his discussion here.

In addition to this interpretive caveat, there is a second, arguably more important, caveat. This has to do with the limited nature of the arguments being discussed. The focus is purely on whether pornography should be covered (definition below) by the FSP. There is no general argument for or against pornography on display. Certainly, if one reaches the conclusion that pornography is covered by the FSP, it becomes more difficult to argue in favour of its regulation or censorship, but that is a long way from saying that it is impossible to do so. Similarly, although concluding that pornography is not covered by the FSP may make it easier to argue for is restriction, it does not automatically lead to that conclusion.

This should be borne in mind at all times.

1. The General Argument Pattern
Koppelman says that there is a general argument pattern, used by several theorists, which holds that pornography is not covered by the FSP because it does not involve the communication of ideas. I don’t like Koppelman’s formulation of this argument pattern, so I’m going to lay out my own version of it.

I start with the free speech principle itself, which underlies all aspects of this debate. I define that principle as follows:

Free Speech Principle: (Some or all types of)* speech ought to be free from government censorship and regulation 

I appreciate that this definition is far from perfect. There are so many views about what should and should not be included within the freedom of speech that it would be difficult to come up with a definition that was agreeable to all. Indeed, I’m not even sure that I agree with this formulation. For example, while I think any version of the FSP worth talking about would hold that government censorship of speech was off limits, I’m much less sure about regulation. I think there might be certain forms of regulation (or regulation in certain contexts) that is permissible.

As it happens, those worries are not too important for the discussion here. What is important here is to keep in mind two facts. First, the FSP can be defended with a variety of different arguments. Typically, these arguments point to the value of free speech from an individual or societal perspective. And second, those who argue that pornography should not be covered by the FSP think that the arguments they use to defend the FSP entail the following Coverage Principle:

Coverage Principle: The FSP only covers speech that communicates ideas and/or engages the faculty of reason.

How a defence of the FSP could entail this principle is a matter of some dispute. Indeed, it is ultimately the major bone of contention between Koppelman and the set of views he challenges. Still, I think it is clear that those in opposition do hold to this entailment relation. (Note: this is where I differ from Koppelman in setting out the argument pattern. He doesn’t explicitly define these two principles, or identify how it is that the purported defences of the former supposedly entails the latter.)

What is meant by the use of the word “covers” in this principle? Roughly, a type of speech is covered by the FSP if there is a prima facie case for its non-regulation and non-censorship. This is to be contrasted with the notion of “protection”. A type of speech is protected by the FSP if there is more than a prima facie case for its non-regulation and non-censorship. The question of coverage by the FSP is a threshold question: it identifies possible candidates for protection. The critics of pornography being considered here think that pornographic speech fails to meet this threshold.

That brings us, at last, to the argument pattern:

  • (1) The FSP only covers speech that communicates ideas and/or engages the faculty of reason. (Coverage Principle)
  • (2) Pornography neither communicates ideas nor engages the faculty of reason. (Factual claim)
  • (3) Therefore, pornography is not covered by the FSP.

Our job is to fill in this general pattern with the views of some real life philosophers and legal theorists, lest we be accused of constructing a straw man. This we shall do by looking at the arguments of Frederick Schauer and John Finnis. I’ll only look at Schauer’s argument in the remainder of this post. Finnis will be covered in part two.

2. Schauer’s Argument
Frederick Schauer is a legal philosopher whose views I have considered before on this blog. I know him primarily from his writings on evidence law and legal positivism. I must say I knew nothing about his work on free speech before reading Koppelman’s piece. Then again, my ignorance is boundless. Let’s see how Schauer would defend the premises of the argument outlined above.

To start with, we need to consider how he defends the FSP. As I said, it is the defence of that principle that supposedly entails the Coverage Principle. Interestingly, Schauer is somewhat critical of most defences of the FSP. Nevertheless, he thinks that are two plausible ways to defend it:

Autonomy of thought: We each have a right to form our own beliefs, to decide for ourselves what the objects of our thought should be. This entails a right to receive information, unhindered by government interference.
Scepticism of Government: Grant for the sake of argument that some speech can be permissibly restricted, even then we should be deeply sceptical about the ability of governments to reliably and accurately identify this type of speech. History suggests that governments are prone to abuse such a power.

I have a great deal of sympathy with both arguments, but the question is whether they support the Coverage Principle. I’m less sympathetic in this regard.

The scepticism argument would certainly seem to be an uncomfortable bedfellow of the Coverage Principle. Even assuming that there is a type of speech that fails to communicate ideas — an assumption we shall challenge in part two — why should we trust the government to reliably distinguish that type of material from that which does in fact communicate important ideas. James Joyce’s Ulysses is undeniably a great and important work of art. Nevertheless, it was censored for obscenity in its day. Governments could make similar categorisation mistakes in the future.

On the other hand, the autonomy of thought argument may support something like the Coverage Principle, though a lot would turn on how we understood the necessary conditions for independent thought. The problem, as I see it, is that autonomy of thought probably entails other rights too, (the right to education maybe?) and whose to say that those rights wouldn’t support the non-regulation of pornography.

This is a little too speculative, however, so let’s just assume that the autonomy of thought argument works. Then we run into the factual issue: does pornographic speech fail to communicate ideas? Schauer suggests that a certain type of pornography might:

Imagine a motion picture of ten minutes’ duration whose entire content consists of a close-up colour depiction of the sexual organs of a male and a female who are engaged in sexual intercourse…The film is shown to paying customers who, observing the film either reach orgasm instantly or are led to masturbate while the film is being shown. 
(Schauer, Free Speech: A Philosophical Enquiry, 1982, p. 181)

I feel sorry for these customers who “reach orgasm instantly” but leaving that to the side, Schauer’s point is that this kind of pornography communicates no ideas. It is simply a sexual surrogate, like a vibrating toy or a blow-up doll, designed purely to get people off, not to make them think. The argument would appear to be something like this:

  • (4) Pornographic speech is purely a sexual surrogate, i.e. a something that provokes or leads to orgasm.
  • (5) If pornographic speech is purely a sexual surrogate it cannot communicate ideas.
  • (6) Therefore, pornographic speech does not communicate ideas.

There are problems with both premises of this argument. As Koppelman points out, premise (4) confuses the effect of pornographic speech on some people with its content and form. This is a point we return to in part two. Beyond that, it’s not clear that premise (5) is really true. In order to produce a sexual response, pornography does need to engage the mind. As Koppelman puts it, pornography provides a kind of fantasy that is decoded by the mind and the body to produce the sexual response. It gives us the idea of a certain kind of sexual activity, and that can be used to produce an orgasm (if the viewer/consumer so wishes), but it doesn’t do so with the intermediating effects on the faculty of reason.

So it’s not clear that Schauer’s argument works.

This seems like a good place to end the discussion for today. In the next post we’ll look at Finnis’s argument, which is slightly more complex in how it develops and defends the Coverage Principle.

*The bracketed phrase needs to be included to make sense of the views of those in favour of restriction and regulation.

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