Is Pornography "Speech"?

Andrew Koppelman

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas (the major premise); (2) pornography communicates no ideas (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been endorsed several times by the Supreme Court.

The most elegant statement of the argument is that offered by Prof. Frederick Schauer of Harvard. Schauer writes that "a refusal to treat hard core pornography as speech in the technical sense at issue is grounded in the belief that the prototypical pornographic item shares more of the characteristics of sexual activity than of communication." Such an item is a sexual surrogate, like a plastic or vibrating sex aid. It takes pictorial form only because that is another way of helping individuals achieve sexual gratification. "The mere fact that in pornography the stimulating experience is initiated by visual rather than tactile means is irrelevant if every other aspect of the experience is the same." It is true that some serious literature can also produce sexual arousal, but that literature has other elements that entitle it to protection. The reason why such protection is not appropriately extended to hard core pornography "is not that it has a physical effect, but that it has nothing else."

I have just posted a paper critiquing Schauer’s argument, as well as a considerably more complex version of the argument by John Finnis. Schauer’s argument is unpersuasive, for three reasons. (I should state here that Schauer is a friend and that he has been graciousness incarnate in helping me to develop an argument with which he fundamentally disagrees.)

First, it is uncertain whether there is any actual pornography that fits Schauer’s description. Most does not. Any physical response elicited by pornography depends on the viewer’s mental processes. Human sexuality, it appears, is always mediated by thought.

The viewer of pornography is aiming precisely at causing himself to have certain thoughts. But then, any regulation of pornography directly implicates the right to control one’s own thoughts. This is not true of, say, a law that prohibits prostitution: such a law does not prevent people from thinking about having sex with prostitutes, or from telling one another that this is what they are thinking. Control of the body is not the same, for free speech purposes, as control of the mind. In order for Schauer’s argument to work, he would have to offer some reason for distinguishing sexual thoughts from other thoughts.

The second difficulty is related. It is precisely the ideational element that is the basis of any state concern that is articulated today. The state is only indirectly attempting to prevent a physical effect from occurring. What it is directly aiming at is a thought elicited in the viewer: as the Supreme Court put it in 1973, “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.” The physical effect once mattered to regulators much more than it does now. The antipornography crusaders of the nineteenth century thought that if sexual material came into the possession of teenage boys, it would induce them to masturbate, and this in turn would lead to lassitude, weakness, crime, insanity, and early death. Even then, though, much of the suppression was frankly viewpoint-based, targeting as “obscene” writings that were not at all sexually explicit, but which advocated sexual liberation or birth control.

Third and finally, to the extent that Schauer’s free speech theory rests on distrust of the state, the nonprotection of noncognitive speech is inconsistent with his skepticism about the abuse of state power.

Freedom of the mind should be understood to forbid the government from extending protection only to those uses of the mind that it regards as sufficiently dignified. Freedom of thought should include the freedom to be playful, and to toy even with dangerous thoughts. Playing with thoughts is precisely what the arts do.

The effort to separate pornography from the arts is the rock on which the argument I stated at the beginning has always come to wreck. Thought is contained in every work of art – that’s why the arts are protected by free speech -- but the point applies equally to every fantasy constructed by human beings, sexual or otherwise. Freedom of the mind means the right to imagine other worlds, and to tell one another what we have imagined.

I have not addressed the question of the state’s interest in suppressing pornography, because that is not what the argument I have been answering purports to address. Perhaps the freedom to publish pornography is so damaging that the presumption against thought control is here overcome. (I address that question in a Columbia Law Review article, “Does Obscenity Cause Moral Harm?,” available here.) But we should not pretend that, when we suppress pornography we are not infringing values that lie at the heart of free speech.
Posted 2:46 PM by Andrew Koppelman [link]