Longino Fall 2011

Longino Fall 2011 - FQQM: TAKE EA CK flit; Miéri—n’:...

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Unformatted text preview: FQQM: TAKE EA CK flit; Miéri—n’: wameu Oh} chonq/s‘my (<35, treat by Laura Leda/15f. New‘YOi"\< ‘ William Mow/yep lCiEZO) ppm)» ELL. Pornography, Opprem'on, and Freedom: A Clorer Loo/e Helen E. Longino A question which is often asked at the beginning of any discussion on pornography is “How do you define it?” The answer is difficult. A good clear definition of pornography has eluded everyone. Twenty years ago, the United States Supreme Court was defining pornography as material which “taken as a whole appeals to prurient interest.” Ten years later, Justice Potter Stewart said, “I can’t define it, but I know it when I see it.” Today federal law states that the definition of pornography is to be left up to the individual communities to decide. This, of course, has totally con- fused the country. What seems to be acceptable in San Francisco may be appalling in a small town, and communities themselves are having trouble deciding what they think is “patently offensive” and without “serious lit- erary, artistic, political or scientific value.” Feminists have a further objec— tion to this definition: If pornography does not offend local community standards, we say, then something is wrong because it should! In this paper, published here for the first time, feminist philosopher Helen Longiuo puts forth a serious definition of pornography which we believe withstands a rigorous and critical examination and which may prove helpful to teachers, doctors, laypeople, and jurists——anyone, in fact, who is interested in a good working definition of the term. She goes on to apply this definition to the question of pornography and the First Amendment. “WWW I. Introduction The much—touted sexual revolution of the 1960’s and 1970’s not only freed various modes of sexual behavior from the constraints of social disapproval, but also made possible a flood of pornographic material. According to figures provided by WAVPM ( Women Against Violence in Pornography and Media), the number of porno- graphic magazines available at newsstands has grown from zero in 40 1953 to forty in 1977, geles alone have grown 1976.1 Traditionally, pornog presented sexually exp] to “prurient interests” 0 material which furthen which exceeded “custor taken from a definition ican Law Institute’s M( plication to eliminate v is the explicit descriptic behavior for the purpo: on the part of the readc a sexual ethic that subo sexual interactions outs which was the primary 1960’s, and which has ; dards of sexual behavio: One of the beneficial growing acceptance of mores and questions of slogan, “Make love, not characteristic of immo causes injury to or viola may be physical or it m: to lie to another, to hind to exploit another, to d another are instances of voluntarily in sexual it the same or the other 3: either individual or anot behavior is morally Obth ter. Thus, adultery is it course with someone to it involves breaking a [ one’s spouse). Sadistic, injures and violates ano The detachment of s\ we cannot condemn fo strike us as distasteful c because they depart fro: amnion, 'arer Look wing of any discussion on mswer is difi‘icult. A good rryone. Twenty years ago, pornography as material interest.” Ten years later, t I know it when I see it.” )rnography is to be left up )f course, has totally con- in San Francisco may be uselves are having trouble and without “serious lit- aists have a further objec- t offend local community use it should! me, feminist philosopher vf pornography which we tion and which may prove .—-anyone, in fact, who is 111. She goes on to apply the First Amendment. 1960’s and 1970’s not from the constraints of flood of pornographic y WAVPM (Women . the number of porno- zs grown from zero in What Is Pornography? 41 1953 to forty in 1977, while sales of pornographic films in Los An- geles alone have grown from $15 million in 1969 to $85 million in 1976.1 Traditionally, pornography was condemned as immoral because it presented sexually explicit material in a manner designed to appeal to “prurient interests” or a “morbid” interest in nudity and sexuality, material which furthermore lacked any redeeming social value and which exceeded “customary limits of candor.” While these phrases, taken from a definition of “obscenity” proposed in the 1954 Amer- ican Law Institute's Model Penal Code,2 require some criteria of ap‘ plication to eliminate vagueness, it seems that what is objectionable is the explicit description or representation of bodily parts or sexual behavior for the purpose of inducing sexual stimulation or pleasure on the part of the reader or viewer. This kind of objection is part of a sexual ethic that subordinates sex to procreation and condemns all sexual interactions outside of legitimated marriage. It is this code which was the primary target of the sexual revolutionaries in the 1960’s, and which has given way in many areas to more open stan- dards of sexual behavior. One of the beneficial results of the sexual revolution has been a growing acceptance of the distinction between questions of sexual mores and questions of morality. This distinction underlies the old slogan, "Make love, not war,” and takes harm to others as the defining characteristic of immorality. What is immoral is behavior which causes injury to or violation of another person or people. Such injury may be physical or it may be psychological. To cause pain to another, to lie to another, to hinder another in the exercise of her or his rights, to exploit another, to degrade another, to misrepresent and slander another are instances of immoral behavior. Masturbation or engaging voluntarily in sexual intercourse with another consenting adult of the same or the other sex, as long as neither injury nor violation of either individual or another is involved, are not immoral. Some sexual behavior is morally objectionable, but not because of its sexual charac- ter. Thus, adultery is immoral not because it involves sexual inter- course with someone to whom one is not legally married, but because it involves breaking a promise (of sexual and emotional fidelity to one’s spouse). Sadistic, abusive, or forced sex is immoral because it injures and violates another. The detachment of sexual chastity from moral Virtue implies that we cannot condemn forms of sexual behavior merely because they strike us as distasteful or subversive of the Protestant work ethic, or because they depart from standards of behavior we have individually 42 TAKE BACK THE NIGHT adopted. It has thus seemed to imply that no matter how offensive we might find pornography, we must tolerate it in the name of free- dom from illegitimate repression. I wish to argue that this is not so, that pornography is immoral because it is harmful to people. . I]. What Is Pornography? I define pornography as verbal or pictorial explicit representations of sexual behavior that, in the words of the Commission on Obscenity and Pornography, have as a distinguishing characteristic “the degrad- ing and demeaning portrayal of the role and status of the human female . . . as a mere sexual object to be exploited and manipulated sexually.” 3 In pornographic books, magazines, and films, women are represented as passive and as slavisth dependent upon men. The role of female characters is limited to the provision of sexual services to men. To the extent that women’s sexual pleasure is represented at all, it is subordinated to that of men and is never an end in itself as is the sexual pleasure of men. What pleases women is the use of their ‘ bodies to satisfy male desires. While the sexual objectification of women is common to all pornography, women are the recipients of even worse treatment in violent pornography, in which women char- acters are killed, tortured, gang-raped, mutilated, bound, and other- wise abused, as a means of providing sexual stimulation or pleasure ' to the male characters. It is this development which has attracted the attention of feminists and been the stimulus to an analysis of por- nography in general}, Not all sexually explicit material is pornography, nor is all material which contains representations of sexual abuse and degradation por- nography. A representation of a sexual encounter between adult persons which is characterized by mutual respect is, once we have disentangled sex- uality and morality, not morally objectionable. Such a representation would be one in which the desires and experiences of each participant were regarded by the other participants as having a validity and a subjective importance equal to those of the individual’s own desire and experiences. In such an encounter, each participant acknowledges the other participant’s basic human dignity and personhood. Similarly, a representation of a nude human body (in whole or in part) in such a manner that the person shown maintains self-respect—e.g., is not portrayed in a degrading position—would not be morally objection- able. The educational films of the National Sex Forum, as well as a certain amount of erotic literature and art, fall into this category. While some erotic I held by some individ A representation c by mutual respect, in manner beneath her simple erotica. That not in itself, howeve pornographic is a fu may contain descrip‘ explore the consequei being shown is abusiv the humanity and di surrounding the repr sequences of the act, books and films, far f moral, and fall into t] What makes a we] its representation of c' implicit, if not explic: havior that is immora the personhood of on. bal or pictorial materi that is’degrading or such a way as to ends in virtually all hetero: heterosexual pornogre dorses sexual behavic and children. As I us< ual encounters betwe stimulation or pleasure is preparatory to or in or abusive includes pl logical coercion. In at real interests, desires, any way is degrading. to be harmed, abused, grading character of s Pornography comm resents by various feat tion of the female ch: the participant males : there is no suggestion IGHT : no matter how offensive ate it in the name of free— . argue that this is not so, harmful to people. sphy? ial explicit representations Commission on Obscenity :haracteristic "the degrad- and status of the human :xploited and manipulated res, and films, women are ident upon men. The role sion of sexual services to isure is represented at all, ver an end in itself as is vomen is the use of their sexual objectification of nen are the recipients of y, in which women char- ilated, bound, and other- [1 stimulation or pleasure t which has attracted the is to an analysis of por- raphy, nor is all material ise and degradation por- aveen adult persons which 'e have disentangled sex- le. Such a representation ences of each participant having a validity and a : individual’s own desire Jarticipant acknowledges ld personhood. Similarly, Ihole or in part) in such self-respect——e.g., is not at be morally objection- Sex Forum, as well as , fall into this category. What Is Pornography? 43 While some erotic materials are beyond the standards of modesty held by some individuals, they are not for this reason immoral. A representation of a sexual encounter which is not characterized by mutual respect, in which at least one of the parties is treated in a manner beneath her or his dignity as a human being, is no longer simple erotica. That a representation is of degrading behavior does not in itself, however, make it pornographic. Whether or not it is pornographic is a function of contextual features. Books and films may contain descriptions or representations of a rape in order to explore the consequences of such an assault upon its victim. What is being shown is abusive or degrading behavior which attempts to deny the humanity and dignity of the person assaulted, yet the context surrounding the representation, through its exploration of the con- sequences of the act, acknowledges and reaflirms her dignity. Such books and films, far from being pornographic, are (or can be) highly moral, and fall into the category of moral realism. « What makes a work a work of pornography, then, is not simply its representation of degrading and abusive sexual encounters, but its implicit, if not explicit, approval and recommendation of sexual be- havior that is immoral, i.e., that physically or psychologically violates the personhood of one of the participants. Pornography, then, is ver- bal or pictorial material which represents or describes sexual behavior that is'degrading or abusive to one or more of the participants in such a way as to endorse the degradation. The participants so treated in virtually all heterosexual pornography are women or children, so heterosexual pornography is, as a matter of fact, material which en- dorses sexual behavior that is degrading and/ or abusive to women and children. As I use the term “sexual behavior,” this includes sex- ual encounters between persons, behavior which produces sexual stimulation or pleasure for one of the participants, and behavior which is preparatory to or invites sexual activity. Behavior that is degrading or abusive includes physical harm or abuse, and physical or psycho- logical coercion. In addition, behavior which ignores or devalues the real interests, desires, and experiences of one or more participants in any way is degrading. Finally, that a person has chosen or consented to be harmed, abused, or subjected to coercion does not alter the de- grading character of such behavior. Pornography communicates its endorsement of the behavior it rep- resents by various features of the pornographic context: the degrada- tion of the female characters is represented as providing pleasure to the participant males and, even worse, to the participant females, and there is no suggestion that this sort of treatment of others is inappro— «tut-15m ). .. .- 1nd.»- in.» .q. .. a." :. m—n.’ .; ,.-'. run. MW...” 4:1,. ' A. "we. ,.,m....v....r~« .,. . range...“ .-,.....i,. . 44 TAKE BACK THE NIGHT priate to their status as human beings. These two features are together sufficient to constitute endorsement of the represented behavior. The contextual features which make material pornographic are intrinsic to the material. In addition to these, extrinsic features, such as the purpose for which the material is presented—Le, the sexual arousal/ pleasure/ satisfaction of its (mostly) male consumers—or an accom- panying text, may reinforce or make explicit the endorsement. Rep- resentations which in and of themselves do not show or endorse degrading behavior may be put into a pornographic context by juxta- position with others that are degrading, or by a text which invites or recommends degrading behavior toward the subject represented. In such a case the whole complex—the series of representations or rep. resentations with text—is pornographic. The distinction I have sketched is one that applies most clearly to sequential material—a verbal or pictorial (filmed) story—which rep- resents an action and provides a temporal context for it. In showing the before and after, a narratoror fihn-maker has plenty of oppor- tunity to acknowledge the dignity of the person violated or clearly to refuse to do so. It is somewhat more diflicult to apply the distinction to single still representations. The contextual features cited above, however, are clearly present in still photographs or pictures that glam- orize degradation and sexual violence. Phonograph album covers and advertisements offer some prime examples of such glamorization. Their representations of women in chains (the Ohio Players), or bound by ropes and black and blue (the Rolling Stones) are consid. ered high-quality commercial “art” and glossin prettify the violence they represent. Since the standard function of prettification and glam- orization is the communication of desirability, these albums and ads are communicating the desirability of violence against women. Rep— resentations of women bound or chained, particularly those of women bound in such a way as to make their breasts, or genital or anal areas vulnerable to any passerby, endorse the scene they represent by the absence of any indication that this treatment of women is in any way inappropriate. To summarize: Pornography is not just the explicit representation or description of sexual behavior, nor even the explicit representation or description of sexual behavior which is degrading and/ or abusive to women. Rather, it is material that explicitly represents or describes degrading and abusive sexual behavior so as to endorse and/ or rec- ommend the behavior as described. The contextual features, more- over, which communicate such endorsement are intrinsic to the n. ....__--_.._.-....-. .. .- material; that is, they change the representa This account of po original meaning of t Dictionary defines p01 etc. of prostitutes ant “harlot” and ypadmu pression or suggestior or art.” 5 Let us consider the transactions between 1 directly or indirectly, : ual pleasure.‘ Tradith tutes what they could women friends, who, l male, must be accord: are limits to what tr: as wives or women fr vide sexual pleasure tr pornography also exis nographic context no a contractual arranger makes each one Every are appropriate subje demeaning male sexu purpose. The recent e sentation of scenes of sexual stimulation of shocking in itself, is 3 extension of a genre ' manner beneath their III. Pornogra; What is wrong wit humanizing portrayal nography, by its very men and mere instru ' In talking of prostitw reality of, prostitution. between women and the *1 IGHT se two features are together represented behavior. The pornographic are intrinsic rinsic features, such as the d—i.e., the sexual arousal/ . -. consumers—or an accom- .icit the endorsement. Rep- do not show or endorse nographic context by juxta— ? by a text which invites or the subject represented. In s of representations or rep- that applies most clearly to (filmed) story—which rep- . context for it. In showing iaker has plenty of oppor- erson violated or clearly to :ult to apply the distinction ttual features cited above, raphs or pictures that glam- )nograph album covers and [es of such glamorization. 18 (the Ohio Players), or Rolling Stones) are consid- lossily prettify the violence I of prettification and glam- ility, these albums and ads lence against women. Rep- sarticularly those of women LStS, or genital or anal areas cene they represent by the :nt of women is in any way he explicit representation or the explicit representation ; degrading and/ or abusive citly represents or describes i as to endorse and/ or rec— contextual features, more— ment are intrinsic to the What Is Pornography? 45 material; that is, they are features whose removal or alteration would change the representation or description. This account of pornography is underlined by the etymology and original meaning of the word “pornography.” The Oxford English Dictionary defines pornography as “Description of the life, manners, etc. of prostitutes and their patrons [from 776an (pome) meaning “harlot” and 'ypdipew (graphein) meaning “to write”); hence the ex- pression or suggestion of obscene or unchaste subjects in literature or art.” 5 Let us consider the first part of the definition for a moment. In the transactions between prostitutes and their clients, prostitutes are paid, directly or indirectly, for the use of their bodies by the client for sex- ual pleasure.* Traditionally males have obtained from female prosti- tutes what they could not or did not wish to get from their wives or women friends, who, because of the character of their relation to the male, must be accorded some measure of human respect. While there are limits to what treatment is seen as appropriate toward women as wives or women friends, the prostitute as prostitute exists to pro- vide sexual pleasure to males. The female characters of contemporary pornography also exist to provide pleasure to males, but in the por- nographic context no pretense is made to regard them as parties to a contractual arrangement. Rather, the anonymity of these characters makes each one Everywoman, thus suggesting not only that all women are appropriate subjects for the enactment of the most bizarre and demeaning male sexual fantasies, but also that this is their primary purpose. The recent escalation of violence in pornography—the pre- sentation of scenes of bondage, rape, and torture of women for the sexual stimulation of the male characters or male viewers-while shocking in itself, is from this point of view merely a more vicious extension of a genre whose success depends on treating women in a manner beneath their dignity as human beings. III. Pornography: Lies and Violence Against Women What is wrong with pornography, then, is its degrading and de— humanizing portrayal of women (and not its sexual content). Por- nography, by its very nature, requires that women be subordinate to men and mere instruments for the fulfillment of male fantasies. To ' In talking of prostitution here, I refer to the concept of, rather than the reality of, prostitution. The same is true of my remarks about relationships between women and their husbands or men friends. . . assumes“ . . '1'- .u-m mmym’. .w... 3:13-__gme«~i.-:- ‘ 46 TAKE BACK THE NIGHT accomplish this, pornography must lie. Pornography lies when it says that our sexual life is or ought to be subordinate to the service of men, that our pleasure consists in pleasing men and not ourselves, that we are depraved, that we are fit subjects for rape, bondage, tor- ture, and murder. Pornography lies explicitly about women’s sexual- ity, and through such lies fosters more lies about our humanity, our dignity, and our personhood. Moreover, since nothing is alleged to justify the treatment of the female characters of pornography save their womanhood, pornogra- phy depicts all women as fit objects of violence by virtue of their sex alone. Because it is simply being female that, in the pornographic vision, justifies being violated, the lies of pornography are lies about all women. Each work of pornography is on its own libelous and de-- famatory, yet gains power through being reinforced by every other pornographic work. The sheer number of pornographic productions expands the moral issue to include not only assessing the morality or immorality of individual works, but also the meaning and force of the mass production of pornography. The pornographic view of women is thoroughly entrenched in a booming portion of the publishing, film, and recording industries, reaching and afiecting not only all who look to such sources for sexual stimulation, but also those of us who are forced into an aware- ‘ ness of it as we peruse magazines at newsstands and record albums in record stores, as we check the entertainment sections of city news- papers, or even as we approach a counter to pay for groceries. It is not necessary to spend a great deal of time reading or viewing pornographic material to absorb its male-centered definition of women. No longer confined within plain brown wrappers, it jumps out from billboards that proclaim “Live X-rated Girls!” or “Angels in Pain” or “Hot and Wild,” and from magazine covers displaying a woman’s genital area being spread open to the viewer by her own fingers.* Thus, even men who do not frequent pornographic shops and movie houses are supported in the sexist objectification of women by their environment. Women, too, are crippled by internalizing as self-images those that are presented to us by pornographers. Isolated from one another and with no source of support for an alternative view of female sexuality, we may not always find the strength to resist a message that dominates the common cultural media. The entrenchment of pornography in our culture also gives it a significance quite beyond its explicit sexual messages. To suggest, as ' This was a fullvcolor magazine cover seen in a rack at the check-out counter of a corner delicatessen. pornography does, th sexual pleasure to 11 human or have a statx our equality at one 01 This denial is especi such as ours, in whi feeling superior to otl in maintaining their b no matter how oppres live and work, they 0 one or some category raphy, by presenting ‘ sexual use of men, cat nature of sexuality wl tects it from explicit explicit social disavow this image to continu publicly proclaims its In addition to fim view of women and th are beginning to 001 commiting rape and Contrary to the finding raphy a growing body between exposure to 1 of violent acts general pornographic materia‘ violent acts against w¢ precisely what the ca pornography is not im From “snufi” film: stores to Hustler, to j to Vogue, pornograpl communications and institutional character ‘ Pornography thus beco. contemporary pornograpl photographs and films—« consumers. For a discussi capitalism as it relates to “Rape, Racism, and the t April 1978. IE NIGHT . Pornography lies when it says : subordinate to the service of easing men and not ourselves, :ubjects for rape, bondage, tor- :plicitly about women’s sexual- : lies about our humanity, our to justify the treatment of the e their womanhood, pomegra- of violence by virtue of their :male that, in the pornographic of pornography are lies about is on its own libelous and de- :ing reinforced by every other r of pornographic productions only assessing the morality or. 150 the meaning and force of is thoroughly entrenched in a .lrn, and recording industries, rho look to such sources for who are forced into an aware- wsstands and record albums in inment sections of city news~ iter to pay for groceries. It is of time reading or viewing male-centered definition of tin brown wrappers, it jumps 1e X-rated Girls!” or “Angels [1 magazine covers displaying sen to the viewer by her own frequent pornographic shops :exist objectification of women 3 crippled by internalizing as us by pornographers. Isolated of support for an alternative : always find the strength to Jmon cultural media. 11 our culture also gives it a rual messages. To suggest, as n a rack at the checkout counter § What Is Pornography? 47 pornography does, that the primary purpose of women is to provide sexual pleasure to men is to deny that women are independently human or have a status equal to that of men. It is, moreover, to deny our equality at one of the most intimate levels of human experience. This denial is especially powerful in a hierarchical, class society such as ours, in which individuals feel good about themselves by feeling superior to others. Men in our society have a vested interest in maintaining their belief in the inferiority of the female sex, so that no matter how oppressed and exploited by the society in which they live and work, they can feel that they are at least superior to some- one or some category of individuals—a woman or women. Pornog~ raphy, by presenting women as wanton, depraved, and made for the sexual use of men, caters directly to that interest" The very intimate nature of sexuality which makes pornography so corrosive also pro- tects it from explicit public discussion. The consequent lack of any explicit social disavowal of the pornographic image of women enables this image to continue fostering sexist attitudes even as the society publicly proclaims its (as yet timid) commitment to sexual equality. In addition to finding a connection between the pornographic view of women and the denial to us of our full human rights, women are beginning to connect the consumption of pornography with commiting rape and other acts of sexual violence against women. Contrary to the findings of the Commission on Obscenity and Pornog- raphy a growing body of research is documenting ( l) a correlation between exposure to representations of violence and the committing of violent acts generally, and (2) a correlation between exposure to pornographic materials and the committing of sexually abusive or violent acts against women.” While more study is needed to establish precisely what the causal relations are, clearly so-called hard—core pornography is not innocent. From “snuff” films and miserable magazines in pornographic stores to Hustler, to phonograph album covers and advertisements, to Vogue, pornography has come to occupy its own niche in the communications and entertainment media and to acquire a quasi- institutional character (signaled by the use of diminutives such as " Pornography thus becomes another tool of capitalism. One feature of some contemporary pornography—the use of Black and Asian women in both still photographs and films—exploits the racism as well as the sexism of its white consumers. For a discussion of the interplay betWeen racism and sexism under capitalism as it relates to violent crimes against women, see Angela Y. Davis, “Rape, Racism, and the Capitalist Setting,” The Black Scholar, Vol. 9, No. 7, April 1978. Lara ..‘-— . ‘ .--w‘“.'l..- Wm, _ ~¢<“V:w‘~‘-‘r 48 TAKE BACK THE NIGHT “porn” or “porno” to refer to pornographic material, as though such familiar naming could take the hurt out). Its acceptance by the mass media, whatever the motivation, means a cultural endorsement of its message. As much as the materials themselves, the social tolerance of these degrading and distorted, images of women in such quantities is harmful to us, since it indicates a general willingness to see women in ways incompatible with our fundamental human dignity and thus to justify treating us in those ways.’ The tolerance of por- nographic representations of the rape, bondage, and torture of women helps to create and maintain a climate more tolerant of the. actual physical abuse of women? The tendency on the part of the legal system to view the victim of a rape as responsible for the crime against her is but one manifestation of this. ' In sum, pornography is injurious to women in at least three distinct ways: 1. Pornography, especially violent pornography, is implicated in the committing of crimes of violence against women. 2. Pornography is the vehicle for the dissemination of a deep and vicious lie about women. It is defamatory and libelous. 3. The difiusion of such a distorted view of women’s_nature in our society as it exists today supports sexist (i.e., male—centered) attitudes, and Ithus reinforces the oppression and exploitation of women. . Society’s tolerance of pornography, especially pornography on the contemporary massive scale, reinforces each of these modes of injury: By not disavowing the lie, it supports the male-centered myth that women are inferior and subordinate creatures. Thus, it contributes to the maintenance of a climate tolerant of both psychological and physical violence against women. ’ This tolerance has a linguistic parallel in the growing acceptance and use of nonhuman nouns such as “chick,” “bird,” “filly,” “fox,” “doll,” “babe,” “skirt,” etc., to refer to women, and of verbs of harm such as “fuck,” "screw," “bang” to refer to sexual intercourse. See Robert Baker and Frederick Elliston. “ ‘Pricks’ and ‘Chieks’: A Plea for Persons." Philosophy and Sex (Buffalo, N.Y.: Prometheus Books, 1975). t'l‘his is supported by the fact that in Denmark the number of rapes com- mitted has increased while the number of rapes reported to the authorities has decreased over the past twelve years. See WAVPM Newspage, Vol. II, No. 5, June, 1978, quoting M. Harry, “Denmark Today—The Causes and Effects of Sexual Liberty” (paper presented to The Responsible Society, London, Eng- land, 1976). See also Eysenck and Nias, Sex, Violence and the Media (New York: St. Martin’s Press, 1978), pp. 120—124. 1‘ Congress sl: religion, or pl the freedom of peaceably to : redress of grie Pornography is c injury cited above posals for the socia universal response 1 stitutional guarante recourse to law.7 W tutional rights and must be exercised b nography, I find ot appeals to the First unconvincing. Much of the defe to assume that, whi] basically an entertai may at worst suffer f fore those who argu abridgment of the r and distribute pornr of their customers. ', that the assumption some who acknowle immunity from socia harm that would e1 vented by its contro There are three w compatible with adhs claims that regulatix ference in the privatt the First Amendmen government, and cl pornographic materi by that amendment. 3 NIGHT graphic material, as though rt out). Its acceptance by the ueans a cultural endorsement erials themselves, the social :ed images of women in such cates a general willingness to It fundamental human dignity ways.‘ The tolerance of por- )ndage, and torture of women more tolerant of the actual Icy on the part of the legal as responsible for the crime his. 0 women in at least three omography, is implicated in iinst women. dissemination of a deep and ry and libelous. view of women’s'nature in sexist (i.e., male-centered) ~ression and exploitation of rpecially pornography on the ach of these modes of injury: the male-centered myth that eatures. Thus, it contributes 1t of both psychological and 3 growing acceptance and use of “filly,” “fox,” “doll,” “babe,” )f harm such as “fuck,” “screw,” art Baker and Frederick Elliston, flosaphy and Sex (Buffalo, N.Y.: iark the number of rapes com- a; reported to the authorities has VPM Newspage, Vol. II, No. S, day—The Causes and Effects of :ponsible Society, London, Eng- Violence and the Media (New “A5:9~1,<v,wwg,;w«mq,ww~.xm¢wwm~ ~ ...1 a Vs never; we firearm .5 ii" a: What Is Pornography? 49 IV. Pornography and the Law Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. —Fmsr AMENDMENT, BILL OF RIGHTS on THE UNITED STATES CONSTITUTION Pornography is clearly a threat to women. Each of the‘ modes of injury cited above offers sufficient reason at least to consider pro- posals for the social and legal control of pornography. The almost universal response from progressives to such proposals is that con- stitutional guarantees of freedom of speech and privacy preclude recourse to law." While I am concerned about the erosion of consti- tutional rights and also think for many reasons that great caution must be exercised before undertaking a legal campaign against por- nography, I find objections to such a campaign that are based on appeals to the First Amendment or to a right to privacy ultimately unconvincing. Much of the defense of the pornographer’s right to publish seems to assume that, while pornography may be tasteless and vulgar, it is basically an entertainment that harms no one but its consumers, who may at worst sufier from the debasement of their taste; and that there- fore those who argue for its control are demanding an unjustifiable abridgment of the rights to freedom of speech of those who make and distribute pornographic materials and of the rights to privacy of their customers. The account of pornography given above shows that the assumptions of this position are false. Nevertheless, even some who acknowledge its harmful character feel that it is granted immunity from social control by the First Amendment, or that the harm that would ensue from its control outweighs the harm pre- vented by its control. There are three ways of arguing that control of pornography is in- compatible with adherence to constitutional rights. The first argument claims that regulating pornography involves an unjustifiable inter- ference in the private lives of individuals. The second argument takes the First Amendment as a basic principle constitutive of our form of government, and claims that the production and distribution of pornographic material, as a form of speech, is an activity protected by that amendment. The third argument claims not that the pornog- nun... ....--—-b'lui .- aria-hr 50 TAKE BACK THE NIGHT rapher's rights are violated, but that others’ rights ‘will be if controls against pornography are instituted. The privacy argument is the easiest to dispose of. Since the open commerce in pornographic materials is an activity carried out in the public sphere, the publication and distribution of such materials, un- like their use by individuals, is not protected by rights to privacy. The distinction between the private consumption of pornographic material and the production and distribution of, or open commerce in, it is sometimes blurred by defenders of pornography. But I may entertain, in the privacy of my mind, defamatory opinions about another per- son, even though I may not broadcast them. So one might create without restraint—as long as no one were harmed in the course of preparing them—pornographic materials for one’s personal use, but be restrained from reproducing and distributing them. In both cases what one is doing—in the privacy of one’s mind or basement-‘—-may indeed be deplorable, but immune from legal proscription. Once the activity becomes public, however—i.e., once it involves others—it is no longer protected by the same rights that protect activities in the private sphere.’ In considering the second argument (that control of pornography, private or public, is wrong in principle), it seems important to de- termine whether we consider the right to freedom of speech to be absolute and unqualified. If it is, then obviously all speech, including pornography, is entitled to protection. But the right is, in the first place, not an unqualified right: There are several kinds of speech not, protected by. the First Amendment, including the incitement to vio- lence in' volatile circumstances, the solicitation of crimes, perjury and misrepresentation, slander, libel, and false advertising? That there are forms of proscribed speech shows that we accept limita- tions on the right to freedom of speech if such speech, as do the forms listed, impinges on other rights. The manufacture and distribution of material which defames and threatens all members of a class by its recommendation of abusive and degrading behavior toward some members of that class simply in virtue of their membership in it seems ‘ Thus, the right to use such materials in the privacy of one’s home, which has been upheld by the United States Supreme Court (Stanley v. Georgia, 394 us. 557), does not include the right to purchase them or to have them available in the commercial market. See also Pan's Adult Theater 1 v. Slaton, 431 US. 49. T The Supreme Court has also traditionally included obscenity in this category. As not everyone agrees it should be included, since as defined by statutes, it is a highly vague concept, and since the grounds accepted by the Court for including it miss the point, I prefer to omit it from this list. a clear candidate f an unqualified one. Nor is it an ab: other right: If it w The first ten amend guaranteeing the “t protect citizens aga state. The specific l of religion, speech, periences of the In ment as well as a secure liberty. It may be object: mental in that it is that is derivative frc tion, it is useful t Dworkin in his boc out, the word “liber “license,” i.e., the pleases, in some cor a person as indepenc Failure to distinguis and freedoms is fata If the right to fre of what is‘meant by right to do as one 1: But license is surely . to protect. We not liberty as license wh theft, etc. If everyon time, we would haw “nasty, brutish, and protect, this conditic If, on the other he dom of speech is not to it. The right to in right, but one deriva‘ right to independenc arguments showing t sary to guarantee our than subservient.” In dependence to be th NIGHT ters’ rights will be if controls :0 dispose of. Since the open an activity carried out in the bution of such materials, un- ated by rights to privacy. The tion of pornographic material or open commerce in, it is )graphy. But I may entertain, opinions about another per- , them. So one might create ere harmed in the course of s for one’s personal use, but Iibuting them. In both cases Je’s mind or basement—may legal proscription. Once the once it involves others-—it is that protect activities in the that control of pornography, ), it seems important to de- to freedom of speech to be )viously all speech, including But the right is, in the first e several kinds of speech not. .uding the incitement to vio- licitation of crimes, perjury md false advertisingt That hows that we accept limita- such speech, as do the forms nufacture and distribution of 11 members of a class by its ding behavior toward some their membership in it Seems )rivacy of one’s home, which has irt (Stanley v. Georgia, 394 11.8. them or to have them available Theater 1 v. Slaton, 431 US. 49. :luded obscenity in this category. :ince as defined by statutes, it is a cepted by the Court for including list. ~53: maflmwmflmyflfiwwwwwwaws?warrzmmrmewwgerammmawnw -- v - w - ,‘r I What Is Pornography? 51 a clear candidate for inclusion on the list. The right is therefore not an unqualified one. Nor is it an absolute or fundamental right, underived from any other right: If it were there would not be exceptions or limitations. The first ten amendments were added to the Constitution as a way of guaranteeing the “blessings of liberty” mentioned in its preamble, to protect citizens against the unreasonable usurpation of power by the state. The specific rights mentioned in the First Amendment—those of religion, speech, assembly, press, petition—reflect the recent ex- periences of the! makers of the Constitution under colonial govem- ment as well as a sense of what was and. is required generally to secure liberty. ‘ It may be objected that the right to freedom of speech is funda- mental in that it is part of what we mean by liberty and not a right that is derivative from a right to liberty. In order to meet this objec- tion, it is useful to consider a distinction explained by Ronald Dworkin in his book Taking Rights Seriously.“ As Dworkin points out, the word “liberty” is used in two distinct, if related, senses: as “license,” i.e., the freedom from legal constraints to do as one pleases, in some contexts; and as “independence,” i.e., “the status of a person as independent and equal rather than subservient,” in others. Failure to distinguish between these senses in discussions of rights and freedoms is fatal to clarity and understanding. If the right to free speech is understood as a partial explanation of what is meant by liberty, then liberty is perceived as license: The right to do as one pleases includes a right to speak as one pleases. But license is surely not a condition the First Amendment is designed to protect. We not only tolerate but require legal constraints on liberty as license when we enact laws against rape, murder, assault, theft, etc. If.everyone did exactly as she or be pleased at any given time, we would have chaos if not lives, as Hobbes put it, that are “nasty, brutish, and short." We accept government to escape, not to protect, this condition. If, on the other hand, by liberty is meant independence, then free- dom of speech is not necessme a part of liberty; rather, it is a means to it. The right to freedom of speech is not a fundamental, absolute right, but one derivative from, possessed in virtue of, the more basic right to independence. Taking this View of liberty requires providing arguments showing that the more specific rights we claim are neces- sary to guarantee our status as persons “independent and equal rather than subservien .” In the context of government, we understand in- dependence to be the freedom of each individual to participate as 52 TAKE BACK THE NIGHT an equal among equals in the determination of how she or he is to be governed. Freedom of speech in this context means that an individual may not only entertain beliefs concerning gOVemment privately, but may express them publicly. We express our opinions about taxes, dis— armament, wars, social—welfare programs, the function of the police, civil rights, and so on. Our right to freedom of speech includes the right to criticize the government and to protest against various forms of injustice and the abuse of power. What we wish to protect is the free expression of ideas even when they are unpopular. What we do not always remember is that speech has functions other than the ex— pression of ideas. Regarding the relationship between a ri and the publication and distribution of are two points to be made. hardly an exercise of the ri understood above. In the seco of material degrading to wo that women ght to freedom of speech pornographic materials, there In the first place, the latter activity is ght to the free expression of ideas as nd place, to the degree that the tolerance men supports and reinforces the attitude are not fit to participate as equals among equals in the political life of their communities, and that the prevalence of such an attitude effectively prevents women from so participating, the absolute and fundamental right of women to liberty (political independence) is violated. that tolerance of this activi independence. The third argument (which expresses concern that curbs on por- nography are the first step toward political censorship) runs into the same ambiguity that besets the arguments based on principle. These arguments generally have as an underlying assumption that the maximization of freedom is a worthy social goal. Control of pornography diminishes freedom—directly the freedom of pomeg- raphers, indirectly that of all of us. But again, what is meant by “freedom”? It cannot be that what is to be maximized is license—as the goal of a social group whose members probably have at least some incompatible interests, such a be endangered by, t. control of pornogra political speech is thi In addition, it ignore i.e., its character as is justified by the ne< as well as physical different kind of argu right to speak our m: long as such distincti the government’s usir curtailing political sp« In summary, neithi of maximizing liberty right to manufacture The only other con would be a general ri, of others are respect: pornography violates t from defamation, am I have defined pornr erotica and from more tory and libelous tow. women, and that it it cultural oppression of pornographic material * both the current volun ing infiltration of the women in this culture r. the goal of controlling tional rights, a commoz Appeals for action .‘ aside with the claim the task of feminists—the c This approach focuses <7 of pornography, and Sec disappear when the la socially and economica from sexism in this way: E NIGHT ation of how she or he is to be thXt means that an individual zing government privately, but . our opinions about taxes, dis- ms, the function of the police, reedom of speech includes the ‘J protest against various forms v’hat we wish to protect is the 4y are unpopular. What we do IS functions other than the ex- 3 right to freedom of speech pornographic materials, there st place, the latter activity is 2 free expression of ideas as :o the degree that the tolerance rts and reinforces the attitude 3 equals among equals in the that the prevalence of such an 1 so participating, the absolute verty (political independence) suppression of pornographic nust be rejected, namely, that t to utter anything one wants. :ion and distribution of such 3 First Amendment. Further- olved leads to the conclusion e rights of women to political s concern that curbs on por- ical censorship) runs into the uments based on principle. underlying assumption that rthy social goal. Control of ctly the freedom of pornog- tut again, what is meant by be maximized is license—as 1bers probably have at least 11 would be internally incon~ ximization of political inde- way enhanced by, and may What Is Pornography? 5 3 be endangered by, the tolerance of pornography. To argue that the control of pornography would create a precedent for suppressing political speech is thus to confuse license with political independence. In addition, it ignores a crucial basis for the control of pornography, i.e., its character as libelous speech. The prohibition of such speech is justified by the need for protection from the injury (psychological as well as physical or economic) that results from libel. A very different kind of argument would be required to justify curtailing the right to speak our minds about the institutions which govern us. As long as such distinctions are insisted upon, there is little danger of the government’s using the control of pornography as precedent for curtailing political speech. In summary, neither as a matter of principle nor in the interests of maximizing liberty can it be supposed that there is an intrinsic right to manufacture and distribute pornographic material. The only other conceivable source of protection for pornography would be a general right to do what we please as long as the rights of others are respected. Since the production and distribution of pornography violates the rights of women——-to respect and to freedom from defamation, among others—this protection is not available. V. Conclusion I have defined pornography in such a way as to distinguish it from erotica and from moral realism, and have argued that it is defama— tory and libelous toward women, that it condones crimes against women, and that it invites tolerance of the social, economic, and cultural oppression of women. The production and distribution of pornographic material is thus a social and moral wrong. Contrasting both the current volume of pornographic production and its grow- ing infiltration of the communications media with the status of women in this culture makes clear the necessity for its control. Since the goal of controlling pornography does not conflict with constitu- tional rights, a common obstacle to action is removed. Appeals for action against pornography are sometimes brushed aside with the claim that such action is a diversion from the primary task of feminists—the elimination of sexism and of sexual inequality. This approach focuses on the enjoyment rather than the manufacture of pornography, and sees it as merely a product of sexism which will disappear when the latter has been overcome and the sexes are socially and economically equal. Pornography cannot be separated from sexism in this way: Sexism is not just a set of attitudes regarding 54 TAKE BACK THE NIGHT the inferiority of women but the behaviors and social and economic rules that manifest such attitudes. Both the manulacture and dis- tribution of pornography and the enjoyment of it are instances of sexist behavior. The enjoyment of pornography on the part of individuals will presumath decline as such individuals begin to accord women their status as fully human. A cultural climate which tolerates the degrading representation of women is not a climate which facilitates the development of respect for women. Further- more. the demand for pornography is stimulated not just by the sexism of individuals but by the pornography industry itself. Thus. both as a social phenomenon and in its effect on individuals. pornog- raphy. far from being a mere product. nourishes sexism. The carn- paign against it is an essential component of women's struggle for legal. economic. and social equality. one which requires the support of all ieminism.’ ' Many women helped me to develop and crystalline the ideas presented in this paper. I would especially like to thank Michele Farrell. Laura Lederer. Pamela Miller. and Dianne Romain for their comments in mutation and on the flru written draft. Portions of this material were presented orally to members of the Society tor Women in Philosophy and to participants in the workshops on 'What is Pornography?" at the Contention on Feminist Perspectives on Pornopaphy. San Francisco. November 17. 13. and 19. 1978. Their discussion was invaluable in helping me to see problems and to clarity the ideas presented here. ...
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Longino Fall 2011 - FQQM: TAKE EA CK flit; Miéri—n’:...

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