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PornographyPornography

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Ronald Dworkin, “Liberty and Pornography”

Dworkin’s Project• Dworkin investigates the problems raised regarding

pornography primarily by investigating the impact of pornography and its censorship on ‘negative’ and ‘positive’ liberties.

• In particular, Dworkin contends that even if pornography has lamentable consequences on women’s negative and/or positive liberty, this would not justify censoring pornography.

• The First Amendment: Congress shall make no law respecting an 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.

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Isaiah Berlin’s “Two Concepts of Liberty”

• To have negative liberty is to not be obstructed by others in what one might wish to do.

• To have positive liberty is to be free to control or participate in public decisions (including the decision on how far to curtail negative liberty).

- e.g., free speech, freedom to drive at very fast speeds- “[T]hough a state may be justified in imposing speed limits

[…] on grounds of safety and convenience, that is nevertheless an instance of restricting negative liberty.” (108)

Berlin makes the distinction between “negative” and “positive” liberty:

- In an ideal democracy, each person has positive liberty to the same degree.

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Isaiah Berlin’s “Two Concepts of Liberty” (cont’d) • We can’t have it all: Berlin argues that political value is

complex, and that supposing all the political virtues that are attractive in themselves can be realized in a single political structure is fallacious.

- Positive and negative freedoms may collide.- The freedom of the individual may not be fully compatible

with the demands of being a part of a society.- We recognize the values of justice, happiness, truth, etc.,

which may not directly mesh with any of our particular notions of freedom.

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Politics and Pornography• In the 1950s, America played host to a particular rash of

attacks on negative liberty.

Are you now,or have youever been…

- Senator Joseph McCarthy and ‘McCarthyism” Distinguished liberty from security: “[T]hey claimed too

much free speech made us vulnerable to spies and intellectual saboteurs and ultimately to conquest.” (109)

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- These distinct camps have, since then, become messier: “Speech that expresses racial hatred, or a degrading

attitude toward women, has come to seem intolerable to many people whose convictions are otherwise traditionally liberal.” (109)

Politics and Pornography (cont’d)- Other topics such as contraception, prostitution,

homosexuality, and pornography served as topics that divided America, seemingly, into two camps on the issue of liberty: Liberals were for liberty (except for some negative liberty

of economic entrepreneurs). Conservatives were for the liberty of economic

entrepreneurs, but against other forms of liberty when they collided with prospects for security, decency, and morality.

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Indianapolis’ Porn OrdinanceIn 1984, Indianapolis, IN, enacted an anti-pornography ordinance, outlawing production, sale, exhibition or distribution of any material falling under its definition of pornography:

• “[T]he graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women are presented as sexual objects who enjoy pain or

humiliation; or(2) Women are presented as sexual objects who experience

sexual pleasure in being raped; or(3) Women are presented as sexual objects tied up or cut up

or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or

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Indianapolis’ Porn Ordinance (cont’d)(4) Women are presented as being penetrated by objects or

animals; or(5) Women are presented in scenarios of degradation, injury

abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or

(6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.”

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Indianapolis’ Porn Ordinance (cont’d) • The institution of the ordinance was largely brought about by

a group of local feminists. - (This may explain why, according to this definition, there is

no such thing as pornography only depicting men.)- The ordinance included no exception for literary or artistic

merit (and thus would seem to outlaw a number of works considered great literature).

- Those who sponsored the ordinance argued that its purpose was to prevent consequences of a certain kind of pornography.

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Indianapolis’ Porn Ordinance (cont’d) • Publishers and other members of the public argued the

ordinance was unconstitutional, specifically that it restricted the negative liberty protected by the First Amendment.

- The federal district court agreed, as did the Circuit Court for the Seventh Circuit. The Supreme Court declined to review the matter.

- Judge Easterbrook (in the Circuit Court decision) argued that the ordinance targeted material based on its content, and that nothing should be censored based on the merits of its message, or because it expressed ideas that should not be heard. We can contrast this with directly dangerous speech.

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Indianapolis’ Porn Ordinance (cont’d) • Pornography can be “grotesquely offensive”—insulting to both

women and men—but this is not sufficient reason to ban it. - “The essence of negative liberty [such as freedom of

speech] is freedom to offend, and that applies to the tawdry as well as the heroic.” (110)

• Lawyers in the Indianapolis case argued that pornography causes great harm as well as offense to women. Here, the anti-pornography advocates identified three kinds of harm:

1) That some forms of pornography increases the danger that women will be raped or otherwise assaulted.

Reply: While there is some evidence that exposure to pornography weakens peoples’ attitudes towards sexual violence, there is no persuasive evidence that it causes actual incidences of assault.

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Indianapolis’ Porn Ordinance (cont’d)

2) That pornography causes a more general subordination of women.

Reply: Even if this could be shown, it could not reasonably ground the censorship of pornography. - Even literature which blatantly advocates the

subordination of women is protected by the Constitution, and would be even if it gained a following. This is precisely what the First Amendment is meant to protect.

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Indianapolis’ Porn Ordinance (cont’d)

3) That negative liberty for pornographers conflicts with both equality and positive liberty because it leads to women’s political subordination. - According to this view, pornography “produces a climate

[…] in which women cannot have genuine political power or authority because they are perceived and understood unauthentically.” (111)

- As such, pornography works to deny women their positive liberty by reshaping them according to male fantasy, and so represents a conflict within liberty itself.

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Indianapolis’ Porn Ordinance (cont’d)

Reply: This is still a causal argument, and requires some evidence to establish such a link. Such a link, however, seems implausible. - Given that the sort of “sadistic”

pornography that we are con-cerned with here is not in generalpublic circulation, it is unlikely ithas the sort of effect claimed.

- More likely culprits are to be foundin popular media: “Sadistic porn-ography, though much moreoffensive and disturbing, is greatlyovershadowed by these dismalcultural influences as a causalforce.” (111)

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Indianapolis’ Porn Ordinance (cont’d) • Judge Easterbrook argued that even if pornography did have

the consequences claimed, the point of free speech is precisely to allow expressions to have whatever consequences they might, even unfortunate consequences for positive liberty.

• Frank Michelman argues that some speech (including pornography) may be “silencing”—effectively preventing others from exercising their negative freedom to express themselves.

- The protection of free speech is meant to allow everyone to contribute their ideas and expressions to public consideration.

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Indianapolis’ Porn Ordinance (cont’d)

- Michelman argues that some speech might effectively bar women from this public dialogue by changing the public’s perceptions of “her character, needs, desires, and standing, and also, perhaps, […] her own sense of who she is and what she wants.” (112)

- Michelman: If we want free speech for society as a whole, then “we must censor some ideas in order to make entry possible for other ones.” (112)

• However, while it would be unconstitutional to allow some citizens to physically bar others from publishing or broadcasting particular ideas, it is not contradictory to allow some speech that might “drown out” other speech, or cause it to be given little consideration.

- Dominant speech does not negate the freedom of others to speak, even if it means no one will listen.

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Indianapolis’ Porn Ordinance (cont’d)

• Ultimately, equal freedom of speech does not mean equal consideration of that speech by the public:

- Berlin: “Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience.” (113)