an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Andrew Koppelman [link]
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.
(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.
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?"