Friday, March 30, 2007
Is Pornography "Speech"?
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.
Should it make a difference whether this "freedom to publish pornography" is purely for pleasure or for pure pleasure? This is how the late Prof. Thomas Reed Powell would refer to whether there was a violation of the Mann Act in his ConLaw class.
What interests me is arguments over free speech and pornography seem to ignore the fundamental difference between pornography and other types of speech. The state has a significant interest, probably an interest that is greater than the benefits of pornography, in protecting the participants in the film making itself.
Maybe the regulation merely has to be phrased differently. Maybe the state can regulate the participation in a pornographic film. Maybe it is possible to make it illegal to engage in sexual conduct in a film. It may not be illegal to sell a film in which the participants engage in sex, but you could make it illegal to engage in sex that is being filmed.
My point is not the such a law should be enacted, it is simply that the state has a legitimate interest in protecting the well being of the participants in such films. We already have laws against prostitution and laws against child pornography, why should not the same principles be applied to adult pornographic film making itself. In that way you can regulate pornography without regulating speech.
The state has a significant interest, probably an interest that is greater than the benefits of pornography, in protecting the participants in the film making itself.
This assumes that the participants in the film are in need of protection. Given that many such films are made of people engaging in conduct that most adults have engaged in at one time or another, where does the harm come in? Are you saying that the act itself is harmful to the participants, filmed or not? Or does the act of filming somehow make the conduct being filmed harmful?
I think the best way to protect either prostitutes or pornography actors is to legalize prostitution/pornography and bring it into the open. It is operating underground or under conditions of secrecy that leaves sex workers vulnerable to harm or exploitation.
How prostitutes and porn actors are in fact best helped is a logically separate question from how one can constitutionally regulate their work. And I recall (though admittedly I don't know much about constitutional law), that the Supreme Court took care, in writing Lawrence, to indicate that prostitution could still constitutionally be regulated. Therefore, it's constitutionally acceptable to outlaw prostitution.
From that, I would infer that one could regulate porn by, for example, neutrally applying a law that you can't pay someone to have sex, to any films in which people were paid for acting that included actual sex acts. Am I missing some reason that such a law would be constitutionally problematic, whether for free speech reasons or for some other reason?
Of course, if such a law existed, it would still be legal for amateurs to produce porn, or for people to simulate sex with as much realism as they could muster, or for people to do things on screen that didn't happen to be covered by whatever prostitution laws might have been written, or for porn companies to relocate to Nevada and then distribute across the country, etc. And the set of things you would have outlawed would be different from what might be regulated under the Miller test, since it would have everything to do with whether particular sexual acts were done for pay, and nothing to do with whether the film was generally prurient or had artistic value of some sort.
"Pornography the cause of moral harm?" Confused!
(1) Morality, the universalized duty-based proscription of behavior based on self-evidence (such as J. S. Mill's Harm Principle "do no harm")is the means of evaluating pornography, not the cause of harm itself. "X causes moral harm" is unintelligible, incoherent, and too opaque to make any sense.
(2) Pornography has nothing to do with the freedom of speech. It concerns the freedom of expression. (Most porn has little spoken, and surely the spoken is not what is at issue.) If we accepted Article IX of the Bill of Rights, freedom of expression would be one of the enumerated rights retained by the people. Instead, we seem to be "forcing" freedom expression through the sieve of freedom of speech. Some of us consider this casuistry at its best.
(3) The question, it seems to me, is whether the freedom of expression known as pornography causes harm, and if so, "do no harm" would require its ban. But we are using moral imperative "do no harm" to evaluate the effects of pornography, not positing that pornography causes moral harm (which is unintelligible and incoherent).
(4) People who harm people are morally (and legally) proscribed against doing so. Products that harm people are tortiously liable for damages and restitution if defective. Pornography is a product, not a person. Pornography (of itself) cannot act to harm or avoid harm. Only its producers can act. The only question, then, is whether pornography is a "defective product," its defect(s) inflict(s) harm, and therefore its producers are liable for the harm it is purported to cause?
(5) So, pornography is not speech, it's a form of expression, that is protected under Article IX of the Bill of Rights. The moral question is whether this particular form of expression is defective, and if defective, what harm(s) do(es) it inflict? Assuming that harms can be attributed to pornography (for the sake of the next point, not an actual claim), what about automobiles, medicine, etc., that are also known to cause harms?
The Rights guaranteed us are never absolute rights. Rights conflict. Yelling fire in a crowded theater, when no fire exists, is not protected freedom of speech. The enumerated right of expression that inflicts harm (if any) is liable for its harms. But the matter at bar is a tort, not moral, one. The moral imperative ("do no harm") is the means of positing a universal duty, by which we evaluate actions and behaviors and products. Those who violate it are thus culpable. Pornography is not a moral agent, but a product, which is therefore subject to defectiveness, and only its defectiveness, insofar as defects cause a known and direct harm, can hold its producers liable and culpable for the harms its defective product causes.
Here endeth the lesson.
Correction: Spell-check converted "unenumberated" to "enumerated" in the above post. "Unenumerated" should be understood throughout.
Mike, I think there are serious concerns about coercion in the porn industry. The actors are also being exposed to the risk of serious diseases in the course of their employment. That's a legitimate public health issue, especially since sex with paid pornographic actors is (I assume) much, much riskier than ordinary sex. I see no reason why the government could not regulate the industry to deal with those sorts of concerns, at the very least.
>>I think there are serious concerns about coercion in the porn industry.
Any cases of coercion should be prosecuted then.
>>The actors are also being exposed to the risk of serious diseases in the course of their employment. That's a legitimate public health issue, especially since sex with paid pornographic actors is (I assume) much, much riskier than ordinary sex.
First, the government does regulate the porn industry: there are age requirements, record keeping requirements, and certain acts, etc., are legally forbidden.
Second, to say that being in porn is "risky" for the people who work in that industry and that therefore the government shouldn't treat porn as protected speech or should regulate it out of existence (if that is what you were saying), is a bit of a stretch. What about BMX biking or skateboarding or just everyday promiscuity? All are dangerous. All are "public health" issues. Plenty of people out there have hundreds of sex partners and don't practice safe sex. Relative to the porn industry, these people are much more of a "public health" problem. In fact, in the mainstream porn industry, the "actors" undergo constant testing for HIV and other STD's in order to minimize the spread of disease in the industry. Go down to your local bar and see if that is the case.
Should the government start "regulating" their bad behavior because it is "risky?"
And just what is the libertarian view on this subject and how does it differ from the libertine view?
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