Should Pornography Be Banned? – by Aparajita

Should Pornography Be Banned?

 

The Author is Aparajita Jha, a penultimate year student of National Law University and Judicial Academy, Assam.

 

Introduction

 

The exact definition of pornography is described by the concise oxford dictionary as the explicit description or exhibition of sexual activity in literature, films, etc., intended to stimulate erotic rather than aesthetic feelings. Pornography is thus assumed to be different from the other sexually explicit material, which are not intended to be sexually arousing in any sense like the general medical texts. Thus, the general terminology of pornography refers to any sexually explicit material.[1]

 

Pornography can be of many types, hardcore, softcore, or child pornography. It can be both legal as well as illegal. While softcore pornography involves sexually explicit depictions of adults who are not engaged in any sexual acts or displaying genitals on the public platform in an inappropriate manner, on the other hand, hardcore pornography explains sexual acts, whether actual or simulated in a lascivious depiction of genitals or pubic areas.[2] While child pornography involves these depictions of sexual activities with the involvement of a child. Pornography can have many other definitions from several other perspectives based on the understanding of various thinkers.

 

Reasons why a ban on pornography can be questioned

 

Coming to the question of why pornography needs to be defended? Firstly, it needs to be clear as to what is the explanation of pornography. Pornography can basically be understood as an instance of expression, be it written or spoken, more or less like an instance of speech. Therefore, the primary defense to protect freedom of speech and expression is implicitly meant to defend the freedom to produce and consume pornography. Thus, anyone supporting the ban on pornography is supporting the suppression of freedom of speech or expression.

 

There are three major reasons as to why one’s freedom of speech and expression needs to be protected, which might be classified into ethical, instrumental, and pragmatic. The very first reason to protect one’s right to freedom and expression is that it is important in principle as these are considered to be an essential criterion of one’s personal development and human flourishing. These are fundamental to human rights.

 

The second reason that follows in defense of protection of the right to freedom of speech and expression is that they are beneficial to humans in general as they provide a means through which the humans discover the truth and better ways of life.

 

Thirdly, this right needs to be protected as one who would deny freedom of expression is committed to the creation of the machinery of censorship and suppression. This machinery can be considered a loose cannon, once used, it can be used by one’s opponent as well. So, even if it is currently being used to suppress speech or expression that one does not like, there is no assurance that it will not later be used to suppress things that one likes.[3]

 

Constitutional Defense of Pornography

 

Pornography is majorly viewed as an immoral and obscene force that instigates gender inequality. Moreover, it is also considered to be unconstitutional under the amendments of the constitution of the United States as the first amendment of the constitution does not protect it and also violates the equality principle of the fourteenth amendment.

 

This is all against pornography because of the reasons that in the case of Roth v United States (1957) [4], the Supreme Court of United States held that the propagation of pornography harms the state’s ability to maintain morality and order and is not protected by the first amendment of the United States’ constitution. Following this argument line, feminist Catherine MacKinnon offered a bit different yet similar perspective on the concept of how immoral pornography is, arguing that it encourages violent sexual behavior and is predicated on inequality between the sexes.[5] MacKinnon’s appeal to make this her case is to the fourteenth amendment of the United States’ constitution.[6] The fourteenth amendment reads as follows:

 

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [7]

 

MacKinnon argues that men develop a false and debased conception of women when they see pornographic images. Also, she believed that pornography engenders the belief that women are primarily sexual entities that need to be succumbed to the desire of a man. MacKinnon also argued that pornography is dehumanizing as it subordinates women and encourages perverted fantasies that involve molestation, rape, torture, murder, etc.[8] Thus, it is said that pornography is not only unprotected by the first amendment, but it is also illegal in that sense that it violates the equal protection clause by discriminating against women in social spaces.[9]

 

Because of these assertions and constitutional defenses, it has been assumed that banning pornography can be justified. Still, these same assertions can be refuted by the following arguments which have their own set of constitutional defenses and philosophical justifications.[10]

 

MacKinnon’s Philosopher Ronald Dworkin has outrightly challenged MacKinnon’s argument establishing the primacy of the fourteenth amendment over the first one in the case of pornography. As a counter-argument to MacKinnon’s point of banning pornography, Dworkin highlights the difference between speech codes and potential pornography codes.

 

The main aim of the speech code is to ensure that everyone in a particular set up is comfortable enough to speak his or her mind by discouraging degrading language, just as sexual harassment laws aim to discourage specific sexual taunts. The egalitarian argument against pornography, which MacKinnon advocates is not aimed at a particular purpose like the speech codes and sexual harassment laws instead, is a much broader concept. Dworkin reasons out here that from MacKinnon’s assertion that the government could feasibly ban any form of speech deemed even mildly offensive by any group, oppressed or otherwise. Thus, giving a supposed example of what would have happened to the works like The Merchant of Venice or Huckleberry Finn, if that would have been the case. Thus, proving his point in the argumentation against MacKinnon, Dworkin points out that the first amendment is more relevant than the fourteenth amendment in determining the legality of pornography.[11]

 

In support of MacKinnon, one can argue that even if the first amendment is supreme to the fourteenth amendment, pornography is still not protected by the first amendment anyway and should still be outlawed. Though here, Dworkin himself does not defend pornography explicitly, but he still asserts that liberty is more important than sweeping equality. For defending pornography under the first amendment, one needs to have a deeper look into the nature of obscenity laws. Justice William O. Douglas argues that the court oversteps its authority many a times by defining obscenity as unconstitutional. He makes a really powerful argument that these standards and definitions of obscenity are what the court has written and explained in the constitution, which gives no guideline about how to determine obscenity and also does not explain as to whether obscenity is protected under the first amendment. Thus, calling courts unjustifiable because it is going beyond its duty when they read the prohibition of obscenity into the first amendment.[12]

 

Not just this following Ronald Dworkin’s liberal perspective as to why pornography should be protected, he asserts a right based argument, principles and a goal-based argument, argument of policy against banning pornography. Dworkin’s principle of equality is such that:

 

(1) the state treats all of its citizens equally, and

(2) the state treats all of its citizens’ ideas of the good life with equal respect.[13]

 

To maintain equality, the law should not dictate public morality and, thus, should allow every citizen to have ‘moral independence.’ [14] To that end, the moral attitudes of the majority should not determine what laws are enacted. To allow for all citizens’ moral independence, Dworkin claims that ‘external preferences’ such as the moral attitudes of the majority should not dictate policy. With the case of pornography, while a utilitarian could argue that satisfying the majority’s preference against pornography with a pornography ban results in greater net social welfare, Dworkin maintains that such a preference against pornography is ‘external.’ [15] Dworkin distinguishes between two broad kinds of external preferences:

 

(1) ones that rank other citizens as inferior so that such citizens should receive fewer and lesser goods, and

(2) ones that view other citizens’ conception of the good life as inferior.[16]

 

By these two distinctions, moralists either believe that pornographers and pornography consumers are lesser than them or that pornographers and pornography consumers’ view of a life with pornography is inferior to theirs. Either way, moralists have an external preference against pornography that violates the principle of equality and is not justified in establishing a pornography ban.

 

Dworkin also justified that the law school’s policy that is sought to maintain public racial segregation is not right to be applied to the matter of pornography as it is a private one. Policy, according to him, should not rule as to how people enjoy their private life and liberties. Pornography, on the one hand, is consumed and watched privately and voluntarily and thus does not cause any harm to others. As pornography is privately consumed for sexual satisfaction purposes and to satisfy one’s personal needs, its private consumption should not be banned.

 

 

[1] Danny Frederick, “Defending Pornography”.

[2] Patrick A. Trueman, “Dealing with pornography”.

[3] Danny Frederick, “Defending Pornography”.

[4] Roth v. the United States, 354 U.S. 476 (1957).

[5] Catherine Maclinnon, “Pornography, Civil Rights, and ‘Speech’,” in “The Philosophy of Law” p. 379, 377 (Frederick Schauer & Walter Sinnott-Armstrong eds. 1996).

[6] Catherine Mackinnon, “Only Words” (Harvard University Press, 1993).

[7] U.S. CONST. Amend. XIV, § 1.

[8] Catherine Maclinnon, “Pornography, Civil Rights, and ‘Speech’,” in “The Philosophy of Law” p. 379, 377 (Frederick Schauer & Walter Sinnott-Armstrong eds. 1996).

[9] Emily Esfahani-Smith, “Pornography: A Constitutional Defense”, Dartmouth L.J. p. 179, 190 (2008).

[10] Emily Esfahani-Smith, “Pornography: A Constitutional Defense”, Dartmouth L.J. p. 179, 190 (2008).

[11] Emily Esfahani-Smith, “Pornography: A Constitutional Defense”, Dartmouth L.J. p. 179, 190 (2008).

[12] Emily Esfahani-Smith, “Pornography: A Constitutional Defense”, Dartmouth L.J. p. 179, 190 (2008).

[13] Rae Langton, “Whose Right? Ronald Dworkin, Women, and Pornographers,” Philosophy & Public Affairs, 19.4 (1990), p. 330 and 358.

[14] Ronald Dworkin, “Is There a Right to Pornography?” Oxford Journal of Legal Studies, 1.2 (1981), p. 199.

[15] Ronald Dworkin, “Is There a Right to Pornography?” Oxford Journal of Legal Studies, 1.2 (1981), p. 199.

[16] Rae Langton, “Whose Right? Ronald Dworkin, Women, and Pornographers,” Philosophy & Public Affairs, 19.4 (1990), p. 330 and 358.

 

 

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