## 1. What is Pornography?



"I can't define pornography," one judge once famously
said, "but I know it when I see it" (Justice Stewart in
*Jacobellis v. Ohio* 378 US 184 [1964]). Can we do better?



The word "pornography" comes from the Greek for writing
about prostitutes. However, the etymology of the term is not much of a
guide to current usage, since many of the things commonly called
"pornography" nowadays are neither literally written nor
literally about prostitutes.



Here is a first, simple definition. Pornography is any material
(either pictures or words) that is *sexually explicit*. This
definition of pornography may pick out different types of material in
different contexts, since what is viewed as sexually explicit can vary
from culture to culture and over time. "Sexually explicit"
functions as a kind of indexical term, picking out different features
depending on what has certain effects or breaks certain taboos in
different contexts and cultures. Displays of women's uncovered ankles
count as sexually explicit in some cultures, but not in most western
cultures nowadays (although they once did: the display of a female
ankle in Victorian times was regarded as most risque). There may
be borderline cases too: do displays of bared breasts still count as
sexually explicit in various contemporary western cultures? However,
some material seems clearly to count as sexually explicit in many
contexts today: in particular, audio, written or visual representations
of sexual acts (e.g., sexual intercourse, oral sex) and exposed body
parts (e.g., the vagina, anus and penis-especially the erect
penis).



However, this first simple definition is not quite right. Anatomy
textbooks for medical students are sexually explicit - they depict
exposed genitalia, for example - but are rarely, if ever, viewed as
pornography. Sexual explicitness may be a necessary condition for
material to count as pornographic, but it does not seem to be
sufficient. So, something needs to be added to the simple definition.
What else might be required?



Here is a second definition. Pornography is sexually explicit
material (verbal or pictorial) that is *primarily* *designed
to produce sexual arousal in viewers*. This definition is better:
it deals with the problem of anatomy textbooks and the like. Indeed,
this definition is one that is frequently employed (or presupposed) in
discussions of pornography and censorship (e.g., Williams 1981). Of
course, it is important to distinguish here between sexually explicit
material that is *wholly* or *primarily* designed to
produce sexual arousal (i.e., whose only or overriding aim is to
produce sexual arousal) and material whose aim is to do this in order
to make some other artistic or political point. The film *Last Tango
in Paris* arguably aims to arouse audiences, but this is not its
primary aim. It does so in order to make a broader political point.


 Within the general class of pornography, so defined, there is
enormous variety in content. For example, some material depicts women,
and sometimes men, in postures of sexual display (e.g., Playboy
centerfolds). Some depicts non-violent sexual acts (both homosexual
and heterosexual) between adults portrayed as equal and consenting
participants. Feminist pornography is a subset of pornography (in this
general sense) that aims to subvert traditional gender roles, bodies,
and narratives unreflectively endorsed by mainstream heterosexual
pornography. Other sexually explicit representations depict acts of
violent coercion: people being whipped, beaten, bound, tortured,
mutilated, raped and even killed. Some sexually explicit material may
be degrading without necessarily being overtly violent. This material
depicts people (most often women) in positions of servility and
subordination in their sexual relations with others, or engaged in
sexual acts that many people would regard as humiliating. Some
sexually explicit material involves or depicts children. Some portrays
bestiality and necrophilia; and so on. Researchers often distinguish
between 'hardcore' and 'softcore' porn;
'egalitarian' and 'inegalitarian' porn; or
between 'violent', 'non-violent and
degrading', and 'non-violent and non-degrading'
pornography, since different types of pornography may be harmful to
different degrees and in different ways.



The decades following the advent of the internet have seen an
explosion in the amount of readily accessible pornography; and
pornography use is common among adolescents as well as adults.
Pornography production and distribution is now a massive and highly
profitable international industry, with a multibillion-dollar annual
turnover.



The two definitions considered above are purely
*descriptive*: They leave it open whether pornography is good or
bad. By contrast, a third approach to defining pornography is
*value-laden*. Sometimes when people describe something (e.g., a
book such as *Tropic of Capricorn* or a film such as *Baise
Moi*) as "pornographic," they seem to be doing more
than simply dispassionately describing its sexually explicit content or
the intentions of its producers--indeed, in these debates, the
intentions of producers are sometimes treated as irrelevant to the
work's status as pornography. They seem to be saying, in addition, that
it is *bad*--and perhaps also that its badness is not
redeemed by other artistic, literary, or political merit the work may
possess. (Consider, for example, how the term "visual
pornography" is sometimes used to condemn certain artworks, often
when the work is not even sexually explicit.)



This suggests a third definition: pornography is sexually explicit
material designed to produce sexual arousal in consumers *that is
bad* in a certain way. This definition of pornography is
value-laden because it is built into the definition that pornography is
(somehow) bad; material that is not bad in the relevant way is not
pornography. It might be that *all and only* sexually explicit
material is bad in the relevant way (e.g., obscene), in which case
"pornography" will refer to all and only the class of
sexually explicit materials. But it may be that only *some*
sexually explicit material has the (allegedly) objectionable property
(e.g., subordinating women), in which case only that objectionable
*subset* of sexually explicit material will count as
pornography. And, of course, it is possible that *no* sexually
explicit material is bad in the relevant way (e.g., harmful to women),
in which case we would have an error theory about pornography: there
would be no pornography, so defined, merely harmless, sexually explicit
"erotica".



Several influential approaches define pornography as sexually
explicit material that is (somehow) bad--although they disagree
both about *why* pornography is bad and exactly *what*
materials are pornographic. A particularly influential approach, which
has provided the dominant legal framework for understanding pornography
in the U.S. and U.K., has been to define pornography in terms of
*obscenity*. Material counts as obscene if an average,
reasonable person applying community standards would find the work as a
whole to lack any serious literary, artistic, political, or scientific
value, and the work describes or depicts in an obvious way offensive
sexual conduct. On this conception, which is employed by many of
pornography's conservative critics, pornography should be regulated
because it transgresses certain (allegedly) shared community standards
of morality or decency, and thus counts as obscene. Conservatives
usually class *all* sexually explicit material--even
egalitarian sexually explicit "erotica"--within the category of
pornography since conservatives typically view all such material as
obscene. (For critical discussions of this obscenity approach, see
Schauer 1982; Feinberg 1987; MacKinnon 1987.)



But the badness of pornography need not reside in obscenity.
Pornography might be defined, not as sexually explicit material that is
obscene, but as sexually explicit material that *harms women*.
Thus, many contemporary feminist definitions define
"pornography" as material (pictures and/or words) that
depicts women's subordination in such a way as to *endorse*,
*encourage* or *eroticize* it (Longino 1980; MacKinnon
1987). This definition of pornography leaves it open in principle that
there might be sexually explicit material that is not pornography:
sexually explicit material that does not depict women's subordination,
or that depicts but does not endorse it, will count as harmless
"erotica." Determining whether a given film or image
functions to endorse oppressive social hierarchies is complex and
context-sensitive; it depends not simply on the intrinsic content of
the film or image, or on the intentions of its creators, but also on
how it is interpreted or used on a particular occasion (McGowan 2019,
Ch. 6). The very same material (e.g., a graphic documentary film about
the sex trade) could count as pornographic in one context (e.g., if
used for masturbation) but not in another (e.g., when shown in gender
studies class). Likewise, although it may *depict* sexual
relations of domination and subordination, BDSM material may not
function to *endorse* oppressive sexual hierarchies on many or
most occasions of use. If so, it would not be pornographic in this
current value-laden sense, but rather harmless "erotica".



Of course, women may not be the only people harmed by the production
or consumption of certain sorts of sexually explicit material. The
consumption of sexually explicit material has often been thought to be
harmful to its (predominantly male) consumers: for example, by making
them less likely to have long-term, loving sexual relationships. Many
people strongly object to "child pornography," that subset
of sexually explicit material that involves depictions of actual
children engaged in sexual activity. This class of sexually explicit
material is widely regarded as objectionable because it involves the
actual sexual exploitation of children, together with a permanent
record of that abuse which may further harm their interests.



I have discussed how, on this third approach to defining
"pornography" as sexually explicit material that is bad or
harmful in a certain way, there are three possibilities:
"pornography" might name *all*, *some* or
even *no* sexually explicit material, depending on what (if
any) class of sexually explicit material is in fact bad in the
relevant way. But it is worth noting that there is an interesting
fourth possibility. It is possible that some *non*-sexually
explicit material might *also* turn out to be bad in the
relevant way. It might be that some non-sexually explicit material is
obscene in the relevant sense (e.g., Andres Serrano's famously
controversial artwork entitled "Piss Christ," which
displays a plastic crucifix in urine with cow's blood). Or it might
turn out that non-sexually explicit advertising that depicts women in
positions of sexual servility in such a way as to endorse or eroticize
that subordination is *also* bad in the relevant way. (As many
philosophers might be inclined to put the point, the sexually explicit
materials that subordinate women via their depiction of women as
subordinate may turn out not to form a natural kind.) In this case,
there are two options. "Pornography" might be taken to
name only the *sexually explicit subset* of material that is
bad in the relevant sense (e.g., that depicts women as men's sexual
subordinates in such a way as to endorse their subordination); or
"pornography" might be taken to refer to *all* the
material that is bad in that way, whether that material is sexually
explicit or not. The former option would clearly stick more closely to
the everyday conception of pornography as involving the sexually
explicit. But it might be that this ordinary conception, on
reflection, turns out not to capture what is of moral and political
importance. There may thus be a theoretical reason to conceive of
pornography more broadly than simply sexually explicit material that
is bad in a certain way, or perhaps simply to invent a new term that
captures the theoretically interesting kind. Some feminists seem
inclined to this broader approach, suggesting that material that
merely implies certain messages about sex can sometimes count as
pornography if it contributes in certain ways to sexualized violence
or oppression (Longino 1980; MacKinnon 1984). This may include some
non-sexually explicit material that would not ordinarily be thought of
as pornography: for example, photographs in artwork, advertising or
fashion spreads that depict women bound, chained, or bruised in such a
way as to endorse or eroticize this treatment.



The term "pornography" is used in all of these different
ways in everyday discourse and debate, as well as in philosophical
discussions. Sometimes it is used to mean merely material which is
sexually explicit; sometimes it is used to mean material which is
sexually explicit *and* objectionable in some particular way;
and so on. (For further discussion, see Rea 2001.) We do not need to
choose between these different definitions, for all of them capture
something of the term's everyday use and different definitions may be
useful for different purposes. What matters crucially is that we know
which definition is being used on a particular occasion. The fact that
"pornography" has different senses can have two very
unfortunate consequences if these differences are not clearly noted and
kept in mind: It can make it seem that there is disagreement when there
is not; and it can obscure the real nature of the disagreement when
there is.



Here is one topical example of how this might happen. Some feminists
object to pornography on the grounds that it harms women. Others claim
that pornography may not always be harmful to women and may even
sometimes be liberating and beneficial. It seems that there is genuine
disagreement here. But is there? Not necessarily. For the two sides
might mean different things by "pornography." Suppose that
feminists who object to pornography are defining
"pornography" as sexually explicit material that
subordinates women. So, pornography, for them, is that subset of
sexually explicit material that in fact harms women. This definition
makes it definitionally true that pornography, wherever it exists, is
bad for women. Those who defend pornography, however, may be using
"pornography" to mean simply sexually explicit material
aimed or used primarily for sexual arousal (regardless of whether it is
harmful to women). There may thus be no genuine disagreement here, for
both sides might *agree* that sexually explicit material that
harms women is objectionable. They might also *agree* that there
is nothing objectionable about sexually explicit material that does not
harm women (or anyone else). If different parties are using
"pornography" in different senses they may be talking past
each other, perhaps without realizing it.



Two really substantive issues at stake in the feminist debate over
pornography are 1) whether *any* sexually explicit material is
in fact harmful to women; and, if so, what should be done about it?;
and 2) whether *all* sexually explicit material is in fact
harmful to women; and, if so, what should be done about it? (We can
thus phrase two of the important issues, if we like, without mentioning
"pornography" at all.)


## 2. The Shape of the Traditional Pornography Debate


### 2.1 Conservative Arguments for Censorship



Until comparatively recently, the main opposition to pornography
came from moral and religious conservatives, who argue that pornography
should be banned because its sexually explicit content is obscene and
morally corrupting. By "pornography," conservatives usually
mean simply sexually explicit material (either pictures or words),
since conservatives typically view all such material as obscene.



According to conservatives, the sexually explicit content of
pornography is an affront to decent family and religious values and
deeply offensive to a significant portion of citizens who hold these
values. The consumption of pornography is also bad for society. It
undermines and destabilizes the moral fabric of a decent and stable
society by encouraging sexual promiscuity, deviant sexual practices and
other attitudes and behaviour that threaten traditional family and
religious institutions and which conservatives regard as intrinsically
morally wrong. Furthermore, pornography is bad for those who consume
it, corrupting their character and preventing them from leading a good
and worthwhile life in accordance with family and religious values.



According to conservatives, the state is justified in using its
coercive power to uphold and enforce a community's moral convictions
and to prevent citizens from engaging in activities that offend
prevailing community standards of morality and decency (e.g., Devlin
1968; Sandel 1984.) This position is sometimes called "legal
moralism." Governments also have a responsibility to prevent
citizens from harming themselves. This is true even where the citizen
is not a child (who may not yet be competent to make responsible
judgements for themselves about what is in their own best interests),
but a mature adult who is voluntarily engaged in an activity which they
judge to be desirable and which causes no harm to others. The view that
the state is entitled to interfere with the freedom of mentally
competent adults against their will for their own good is often called
"legal paternalism."



Conservatives therefore think that it is entirely legitimate for the
state to prohibit consenting adults from publishing and viewing
pornography, even in private, in order to protect the moral health of
would-be consumers and of society as a whole (Baird and Rosenbaum
1991).


### 2.2 The Traditional Liberal Defense of a Right to Pornography



Traditional liberal defenders of pornography famously disagree,
rejecting both the principle of legal moralism and the principle of
legal paternalism, at least where consenting adults are concerned. This
is not to say that liberal defenders of pornography necessarily approve
of it. Indeed, they frequently personally dislike and disapprove of
pornography - especially violent and degrading pornography. Many concede
that pornography - by which they usually mean sexually explicit material
whose primary function is to produce sexual arousal in viewers - is
"low value" speech: speech that contributes little, if
anything, of intellectual, artistic, literary or political merit to the
moral and social environment. But this does not mean that it should not
be protected - quite the opposite. A vital principle is at stake for
liberals in the debate over pornography and censorship. The principle
is that mentally competent adults must not be prevented from expressing
their own convictions, or from indulging their own private tastes,
simply on the grounds that, in the opinion of others, those convictions
or tastes are mistaken, offensive or unworthy. Moral majorities must
not be allowed to use the law to suppress dissenting minority opinions
or to force their own moral convictions on others. The underlying
liberal sentiment here is nicely captured in the famous adage (often
attributed to the French philosopher, Voltaire): "I disapprove of
what you say, but I will defend to the death your right to say
it."[1]



For liberals, there is a very strong presumption in favor of
individual freedom and against state regulation that interferes with
that freedom. The *only* ground that liberals typically regard
as providing a legitimate reason for state restrictions on individual
freedom is in order to prevent *harm* to others. Hence, in
debates over censorship and other forms of state regulation that
restrict the liberty of individuals against their will, the burden of
proof is always firmly on those who argue for censorship to demonstrate
that the speech or conduct in question causes significant harm to
individuals other than those consenting adults directly involved in its
production and use. It must either be shown to directly cause actual
*physical violence* to others (e.g., murder, rape, assault,
battery), on a narrower understanding of "harm"; or to
deliberately or negligently violate sufficiently important
*interests* or *rights* of others, on a broader,
interest-based conception of "harm". (For further
discussion of these different conceptions of harm to others, see
Dyzenhaus 1992; Feinberg 1987.)



Liberals have traditionally defended a right to pornography on three
main grounds. (The "right to pornography" here, and in what
follows, means the negative right of consenting adults not to be
prevented from making, publishing, exhibiting, distributing and
consuming pornography in private). The first ground is *freedom of
speech or expression*, which protects the freedom of individuals
(in this case, pornographers) to express their opinions and to
communicate those opinions to others, however mistaken, disagreeable or
offensive others may find 
them.[2]
Liberals have tended to conceive of freedom,
including freedom of expression, as *negative* freedom - as
non-interference by others - rather than as positive freedom, which
involves having the positive goods and facilities required to exercise
the freedom.[3]
Freedom is thus something that individuals
have just so long as there are no coercive external obstacles - notably,
physical or legal restrictions - in their way.



Few liberals nowadays think that the (negative) right to freedom of
speech is an absolute right: a freedom that can never legitimately be
restricted by the state. If the speech causes sufficiently great harm
to others, then the state may have a legitimate interest in regulating
or preventing it. There is no simple general formula or algorithm for
determining when the harm caused to others is "sufficiently
great" to justify legal restrictions in the case of speech and
more generally. This will depend on the outcome of a complex process of
carefully weighing and balancing the strength and nature of the harm
and the competing interests at stake, and an analysis of the costs and
benefits of alternative policies, that needs to be undertaken on a
case-by-case basis.



However, when it comes to legislation that interferes with free
speech, the liberal presumption against legislation is especially high.
For liberals take freedom of expression to be an especially important
right that takes precedence over most other rights and interests
(including equality) should they ever conflict. Levels of harm that
would normally be sufficient to justify regulating the conduct which
causes them may not be sufficiently great to justify restrictions in
cases where the harm is caused by speech or expression. Hence, for
liberals, justifying censorship of pornography requires that there is
extremely reliable evidence to show that the publication or voluntary
private consumption of pornography by consenting adults causes
*especially* great and serious harm to others. The harm caused
by expression must be very certain and very great before it is
legitimate for a state to prohibit it. We would be justified in banning
a certain type of pornography (e.g., positive rape depictions) only
when we are very sure that, on average, tokens of that type (i.e., most
particular positive rape depictions) cause very great harm.



This traditional free speech defense assumes (generally without much
argument) that pornography is a form of speech or expression, in the
sense of 'speech' relevant to a free speech principle. However, this
assumption has been questioned. Frederick Schauer (1982) argues that a
free speech principle is designed to cover only acts of mental
communication. "Hardcore" pornography, however, is not
primarily in the business of mental communication: Its primary function
is not to communicate ideas, but rather to arouse audiences sexually.
In this respect, it is more akin to a mechanical sex toy than a
political pamphlet. If so, then just as production and use of sex toys
cannot be defended on free speech grounds, so there is no free speech
defense of hardcore pornography since hardcore pornography is not
"speech" in the relevant sense. If this line of argument is
correct, legal restrictions on production and consumption of
pornography should not be seen as raising any free speech concerns
whatsoever.



Secondly, liberals have defended a right to pornography on the
grounds of a right to *privacy* (or "moral
independence," as one prominent liberal defender of pornography,
Ronald Dworkin [1985], calls it), which protects a sphere of private
activity within which individuals can explore and indulge their own
personal tastes and convictions, free from the threat of coercive
pressure or interference by the state and other individuals. Andrew
Altman (2018) defends a right to pornography as part of a right to
sexual autonomy. The specter of state intrusion into the private lives
of individuals underpins much of the liberal discomfort about
censorship of pornography.



Like the right to freedom of speech, the liberal commitment to
privacy is not absolute. It can be overridden if the private activities
of individuals are such as to cause significant harm to others. Thus,
if there is reliable evidence to suggest that the voluntary private
consumption of pornography causes sufficiently great harm to others
then - provided that this harm is sufficiently great and that state
prohibitions are the only effective way of preventing it - the state
would have a legitimate interest in prohibiting it.



But - and this is the third prong of the traditional liberal
defense - pornography is comparatively *harmless*. Neither the
expression of pornographic opinions, nor the indulging of a private
taste for pornography, causes significant harm to others in the
relevant sense of "harm" (i.e., crimes of physical violence
or other significant, wrongful rights-violations). Hence, the
publication and voluntary private consumption of pornography is none of
the state's business.


#### 2.2.1 The *Harm Principle*: When is the State Justified in Restricting Individual Liberty?



These three central ingredients in the liberal defense of
pornography find their classic expression in a famous and influential
passage from John Stuart Mill's *On Liberty* (1859). In this
passage, Mill sets out the principle that underpins the prevailing
liberal view about when it is justified for the state to coercively
interfere with the liberty of its citizens. It is a principle that
continues to provide the dominant liberal framework for the debate over
pornography and censorship. Mill writes:



> 
> 
> The only principle for which power can be rightfully exercised over
> any member of a civilized community, against his will, is to prevent
> harm to others. His own good, either physical or moral, is not a
> sufficient warrant. He cannot rightfully be compelled to do or forbear
> because it will be better for him to do so, because it will make him
> happier, because, in the opinion of others, to do so would be wise or
> even right. These are good reasons for remonstrating with him, or
> reasoning with him, or persuading him, or entreating him, but not for
> compelling him, or visiting him with any evil in case he do otherwise.
> To justify that, the conduct from which it is desired to deter him,
> must be calculated to produce evil to someone else. The only part of
> the conduct of any one, for which he is amenable to society, is that
> which concerns others. In the part which merely concerns himself, his
> independence is, of right, absolute (Mill 1975, 15).
> 
> 
> 



Mill's central claim is that society is justified in interfering
with the freedom of mentally competent adults to say and do what they
wish *only* when their conduct will cause harm to others. This
has come to be known as the "harm principle"; and it forms
the cornerstone of the traditional liberal defense of individual
liberty. It protects the freedom of all mentally competent adults to
live however they choose, so long as they do not harm others in the
process.



Mill goes on to stress that the harm principle is meant to apply
"only to human beings in the maturity of their faculties"
(Mill 1975,15). So, the principle permits paternalistic intervention in
the case of those who are not competent to make an informed decision
about what is in their best interests for themselves, and so who
"must be protected against their own actions as well as external
injury" (Mill 1975,15): for example, young children or those
adults whose decision-making abilities are temporarily or permanently
impaired. Thus, if there is reliable evidence that consumption of
violent or misogynistic pornography impairs adolescents' ability
to have successful long-term egalitarian sexual relationships, then
there is a strong liberal case for enforcing tighter age-restrictions
on consumption of pornography.



It is generally thought to follow that child pornography, which is
taken to involve the *actual* sexual abuse or exploitation of
children (with or without their apparent consent), can legitimately be
banned in order to protect the interests of children, who are not yet
competent to fully understand the nature of the choice they are making
or to grasp the impact of their decisions on their present and future
interests. For the same reason, liberals think that children can quite
rightly be prevented by parents or by the state from purchasing or
viewing pornography if this is thought likely to harm them. That child
pornography should be banned is common ground between liberals and
conservatives. However, pornography that involves the
*simulated* abuse of children (for example, virtual child
pornography, or consenting adult actors dressed up as schoolgirls)
cannot legitimately be prohibited under the harm principle unless there
is good evidence to suggest that consumption of this material causes
significant harm to people other than those consenting adults involved
in its production and consumption, for example, by causing those who
consume it to abuse children or by eroticizing inequality. The U.S.
Supreme Court has ruled that virtual child pornography is protected
speech, partly on the basis that virtual child pornography does not
harm actual children (Levy 2002).



We are now in a better position both to see what it would take for
liberals to think that censorship of pornography is justified and why
liberals have been so unsympathetic to the sort of argument against
pornography that conservatives make. Conservatives wish to prevent
mentally competent adults from publishing and consuming pornography on
the grounds that the choice to consume pornography is deeply morally
misguided. But, as Mill insists, this is not a sufficient warrant for
coercive interference with individual liberty. Neither the state nor
moral majorities are entitled to restrict the private choices and
activities of individuals against their will simply because, in the
opinion of state officials or the social majority, that way of life is
unworthy or unrewarding. Mill thinks that this sort of legal moralism
will lead inevitably to a terrible "tyranny of the
majority," crushing individual diversity and blocking human
progress and flourishing.



However, following Mill, liberals are generally happy to allow that
considerations of the individual or common good may entitle the state
to use other, so-called *non-coercive* means to persuade
citizens to make wise or better choices. Thus, public education
campaigns designed to inform citizens of the dangers of smoking or
excessive alcohol consumption, or to persuade them to make
"wise" choices (for example, to eat more fruits and
vegetables) may be justified. While others cannot force an individual
to do something (or to forbear from doing it) when they are not harming
others, it is entirely legitimate to seek to advise, instruct or
persuade them. So, if there are reasons to think that pornography is
not good for the individual who consumes it (say, because it makes them
less likely to be able to have successful loving or long-term
relationships), public education campaigns to warn consumers of these
dangers may be justified. Indeed, education and debate is precisely the
solution that liberals typically recommend to counter any harm that
pornography may cause (e.g., Feinberg 1985; Donnerstein et al. 1987; R.
Dworkin 1985; for further discussion of the counter-speech response,
see Gelber 2021). This solution respects the freedom of rational agents
to exercise their own rational capacities in deciding what to think and
how to live.



However, liberals insist that if attempts at persuasion should fail,
and where an individual's conduct poses no significant threat to the
physical security or interests of others, the state may not use
coercive legal mechanisms to enforce these "wise" choices.
"The only freedom which deserves the name is that of pursuing our
own good in our own way, so long as we do not attempt to deprive others
of theirs, or impede their efforts to obtain it" (Mill 1975, 18).
For Mill, the individual person is in the best position to judge what
is in their own best interests. Even if individuals may sometimes make
bad choices, it is better in general that they be left free to make
these mistakes, for no one's opinion about the good life is infallible;
and, in any case, a life lived "from the inside," in
accordance with values that the individual endorses, is more likely to
be happy and fulfilling than a life where the individual is forced
against their will to live as others believe best.



In an influential liberal defense of pornography, Ronald Dworkin
expresses this commitment in terms of a right to "moral
independence." People, he says, "have the right not to
suffer disadvantage in the distribution of social goods and
opportunities, including disadvantages in the liberties permitted to
them by the criminal law, just on the ground that their officials or
fellow-citizens think that their opinions about the right way for them
to lead their own lives are ignoble or wrong" (1985, 353). The
fact, if it is one, that the majority of people in a society prefer
that pornography be banned because they regard it as immoral or
offensive is not a legitimate reason for interfering with
(pornographers') freedom of speech or for preventing consenting adults
from consuming it in private. For allowing such illegitimate
"external" preferences of a majority to dictate government
policy would violate the right to moral independence of the producers
and consumers of pornography. It would give moral majorities the power
to dictate how members of minority or non-mainstream groups can live on
the basis of the majority's opinions about what sort of people are most
worthy and what sorts of lives are worth living, and this violates
liberal ideals of state neutrality and the basic right of all
individuals to be treated with equal concern and respect.


#### 2.2.2 Pornography and Offense: Justifying Restrictions on the Public Display of Pornography



However, Dworkin thinks, considerations of offense may provide some
justification for preventing or restricting the public display of
pornography so as to avoid its causing offense to
*non-consenting* adults who might otherwise involuntarily or
unwittingly be exposed to it. Joel Feinberg, another well-known liberal
defender of pornography, agrees. But Feinberg thinks that such
restrictions must be justified by a principle other than the harm
principle, for he thinks that certain sorts of unpleasant psychological
states are not in themselves harms. Feinberg calls this additional
principle the *offense principle*. The offense principle says
that "It is always a good reason in support of a proposed
criminal prohibition that it would probably be an effective way of
preventing serious offense (as opposed to injury or harm) to persons
other than the actor, and that it is probably a necessary means to that
end (i.e., there is probably no other means that is equally effective
at no greater cost to the other values)" (Feinberg 1999, 78; for
a more detailed discussion, see Feinberg 1985).



Like Dworkin, Feinberg thinks that the voluntary private consumption
of pornography does not cause harm to others. Hence, wholesale criminal
prohibitions on the publication and private voluntary consumption of
pornography cannot be justified. But the public display of pornography
may nonetheless constitute an "offensive nuisance" to
non-consenting adults who are involuntarily exposed to it (just as
neighbors who play loud music into the wee hours of the morning may be
an "offensive nuisance"). Since the harm - or rather,
pseudo-harm - of pornography is the offense it may cause unwitting
viewers involuntarily exposed to it, the solution is to restrict its
exhibition to domains where such involuntary exposure will not occur,
such as inside well sign-posted adult bookshops and cinemas where those
who will be offended will know not to venture (Feinberg 1983,
105-13.) Although this may prevent pornographers from
distributing their opinions as widely as they might like and may also
cause some minor inconvenience to consumers (who may have to go further
out of their way to find and view pornography or suffer the
embarrassment of having to sneak into known adult bookstores), these
costs may be relatively small compared with the level of offense that
involuntary exposure is likely to cause. Such restrictions on the
public display of pornography would not amount to censorship, for
pornographers are still free to publish and distribute their opinions.
Nor would they violate consumers' right to privacy, for pornography
would be freely available for willing consumers to view in private. The
Williams Committee Report on Obscenity and Film Censorship in England
(Williams 1981) made a similar recommendation, pointing to general
considerations of public decency that prevent offensive public displays
of conduct (e.g., nudity or sexual intercourse) that is appropriately
seen or done only in private. Susan Wendell (1983) also agrees that the
public display of certain sorts of pornography - visual, audio and
written material that depicts and condones the unjustified physical
coercion of women or other human beings - should be prohibited, although
her particular concern is to remove the anxiety that involuntarily
exposure to such coercive material is likely to cause women and the
harm it is likely to do to their self-esteem.



Liberal defenders of the right to pornography may thus allow that
restrictions on its public display may be justified. But only if
pornography can reliably be shown to cause significant harm to people
other than those consenting adults involved in its production and
consumption will there be a legitimate case for prohibiting its
voluntary *private* consumption. When an individual's private
activities cause harm to others, they become no longer merely a private
matter but of legitimate public interest; and the state may be
justified in regulating them. Thus, Dworkin says, were excessive
consumption of pornography shown to cause *absenteeism* from
work, then the public and the state might have some legitimate interest
in preventing it. But, Dworkin thinks, there is as yet no reliable
evidence that firmly establishes that the voluntary private production
or consumption of pornography by consenting adults causes this or any
other sufficiently significant harm to others in the relevant sense of
"harm." Hence, pornography satisfies only harmless personal
preferences for sexual gratification and is therefore none of the
state's business.


#### 2.2.3 Dangers of Censorship



Liberals also have technical concerns about how censorship laws
might work in practice. Many liberal (and feminist) objections to
censorship of pornography point to the practical costs and dangers of
censorship, arguing that even if pornography does cause some harm to
others, the risks involved in censoring it are too great. They point to
the difficulties involved in formulating a legal definition of
"pornography" that will be sufficiently precise to minimize
the danger that censorship laws targeting pornography will be used
(intentionally or unintentionally) to censor other unpopular material,
including valuable literary, artistic and political works. Censoring
pornography may thus place us on a dangerous slippery slope to further
censorship of other material; and may have a general chilling effect on
expression, making people reluctant to say or publish things that might
be construed as pornography and for which they could be prosecuted.
(For further discussion, see Williams 1981; Schauer 1982; Easton,
1994.)



These are significant dangers; and they need to be carefully taken
into account in weighing the costs and benefits of censorship as a
solution to any harm that pornography might cause. But it is worth
noting that they are inherent in many existing forms of legislation and
are not always taken to be insoluble nor to constitute a decisive
reason against censorship in themselves.


## 3. Liberal Dissent



Although traditional defenders of a right to pornography have been
liberals, it is important to note that not all contemporary liberals
defend such a right. Indeed, the question of whether there might be
good liberal grounds for prohibiting or otherwise regulating the
voluntary private consumption of (some) pornography has become the
subject of increasing and lively debate. Inspired by more recent
feminist arguments against pornography, some scholars argue that the
liberal commitment to protecting individual autonomy, equality, freedom
of expression and other important liberal values may in fact support a
policy that restricts production and consumption of certain kinds of
pornography rather than the permissive stance that liberals have
traditionally favored (Brison 1998, 2013; Dyzenhaus 1992; Easton 1994,
42-51; Langton 1990; McGowan 2019; Okin 1987; Watson 2007, 2018;
West 2003). These theorists do not normally reject the harm principle,
broadly understood: They generally agree that the crucial question in
determining whether censorship of pornography is justified is whether
there is reliable evidence to show that the publication or viewing of
pornography by consenting adults causes sufficiently great harm to
significant interests of others. Rather, they are open to the
legitimacy of censorship because they think that the production and
consumption of certain sorts of sexually explicit material--in
particular, violent pornography and non-violent but degrading
pornography--may in fact cause sufficiently significant harm to
others, particularly women.



These theorists often follow social science researchers in drawing
more fine-grained distinctions within the general category of
pornography (i.e., the sexually explicit material whose primary
function is to produce sexual arousal in those who view or read them).
They often distinguish between 1) violent pornography, 2) non-violent
but degrading pornography, and 3) non-violent and non-degrading
pornography, since there is some evidence to suggest that some of these
materials (e.g., in categories 1 and 2) may be harmful in ways that
other material (e.g., category 3) is not.



One important dimension of the disagreement between those liberals
who defend a right to pornography and those who think that liberals
should be open to the legitimacy of censorship is *empirical*:
They disagree about the crucial empirical issue of whether there is
reliable evidence to show that the production and consumption of
pornography by consenting adults in fact causes harm to others,
particularly women. But frequently they also disagree about some
important *conceptual* matters as well. In particular, they may
disagree (albeit sometimes implicitly) about how three central elements
of the harm principle should be understood: (i) exactly what counts as
"harm" to others in the relevant sense; (ii) when can we
say that something is a "cause," or a sufficiently
"direct cause," of a harm; and (iii) how much harm to
others is "sufficiently great" to justify coercive
sanctions against the speech or conduct that produces it. In other
words, they disagree about how the harm principle should be interpreted
and applied.



Many argue that more traditional liberal conceptions of the
interests or rights that individuals have, and so of what activities
can cause harm to them, is too narrow. It ignores the way in which
threats to individuals' interests can come not just from the state, but
also from other social practices and circumstances (e.g., substantive
socio-economic disadvantage) that can prevent the meaningful exercise
of freedom just as effectively. The state may thus have a legitimate
role to play in promoting the social conditions that enable individuals
to exercise their rights in meaningful ways and in regulating such
activities of non-governmental agents or groups as may serve
significantly to infringe them.


## 4. Feminist Approaches


### 4.1 Feminist Arguments against Pornography



According to anti-pornography feminists, pornography is not harmless
entertainment or cathartic, therapeutic fantasy. Nor is the harm it
causes merely that of "offense." Unlike moral
conservatives, who object to pornography on the grounds of the
obscenity of its sexually explicit content and its corrosive effect on
the conservative way of life, the primary focus of the feminist
objection to pornography is on the central role that pornography is
thought to play in the *exploitation and oppression of women*
(Lederer 1980; Itzin 1992; MacKinnon 1984, 1987, 1995; McGowan 2019;
Watson 2018).



This concern is reflected in the distinctive way anti-pornography
feminists tend to define "pornography." As we have seen,
conservatives typically define "pornography" as including
all sexually explicit material. This definition reflects the fact that
conservatives object to pornography's sexual explicitness, which is
obscene or appeals to "prurient interests."
Anti-pornography feminists, however, do not object to pornography's
sexually explicit content *per se*. They typically draw a more
fine-grained distinction *within* the class of sexually explicit
materials between "pornography," on the one hand, and
"erotica," on the other. "Erotica" is generally
defined as sexually explicit material premised on equality, which
depicts women as genuinely equal and consenting participants in sexual
encounters. "Pornography," in contrast, is typically
defined as that subset of sexually explicit material that depicts women
being coerced, abused, dominated or degraded in such a way as to
*endorse* their subordination. Unlike conservatives,
anti-pornography feminists have no objection to material which is
merely sexually explicit, i.e., erotica, for sexually explicit material
of this sort does not harm women. The objection is to
*pornography* - that subset of sexually explicit material that
*subordinates women*.



In 1983, two of the most prominent anti-pornography feminists in the
United States, Catharine MacKinnon and Andrea Dworkin, drafted an
anti-pornography ordinance at the behest of the Minneapolis Council. A
similar ordinance was passed by the Indianapolis City Council in 1984,
but later overturned on appeal by the U.S. Supreme Court on the grounds
that the ordinance violated pornographers' First Amendment right
to freedom of speech. Importantly, the ordinance did not seek to impose
criminal prohibitions or sanctions on pornography: It did not seek to
make the production, sale or consumption of pornography a criminal
offence, punishable by imprisonment (as, for example, producing,
selling or consuming heroin is a criminal offence). MacKinnon and
Dworkin thought that criminalizing the production, publication or
consumption of pornography would be counterproductive, serving to drive
the industry underground, thereby only further obscuring the harm it
causes to women. Rather, the ordinance sought *civil* remedies
that would enable women who are harmed in the making of pornography, or
as a result of its consumption, to sue for a future ban on sexually
explicit material demonstrated to be harmful and to collect damages
from pornographers for provable harm done by that material. There is
some argument about whether the proposed legislation would have
amounted to censorship, strictly speaking, since it did not seek to
place a prior ban on the publication of pornographic materials. But
insofar as the legislation allowed for courts to award and enforce
injunctions against publication of material demonstrated to be harmful,
many think that the legislation may have been functionally equivalent
to censorship in practice (assuming that courts would in fact have been
willing to award and enforce injunctions).



The ordinance has been the subject of a heated debate among
feminists, many of whom are dubious both about the centrality of
pornography's role in the subordination of women and about the
desirability of employing strategies of legal regulation in the pursuit
of feminist goals (e.g., Hunter and Law 1985; Lacey 1998, 71-97;
Cornell 2000; Strossen 1995). But the ordinance was significant, not
least for reconceptualizing the question of pornography in the public
arena in feminist terms: not as an issue about obscenity or public
indecency, as it had hitherto tended to be viewed in legal and
political contexts under the influence of moral conservatives, but as
an issue about the *civil rights of women*. It also provided an
influential definition of pornography that has featured prominently in
many subsequent discussions. The ordinance defined
"pornography" as a civil rights violation, as a
*systematic practice of sexual discrimination* that violates
women's right to equality:



> 
> 
> We define pornography as the graphic sexually explicit subordination
> of women through pictures and words that also includes (i) women are
> presented dehumanized as sexual objects, things, or commodities; or
> (ii) women are presented as sexual objects who enjoy humiliation or
> pain; or (iii) women are presented as sexual objects experiencing
> sexual pleasure in rape, incest or other sexual assault; or (iv) women
> are presented as sexual objects tied up, cut up or mutilated or bruised
> or physically hurt; or (v) women are presented in postures or positions
> of sexual submission, servility, or display; or (vi) women's body parts
> -- including but not limited to vaginas, breasts, or buttocks
> -- are exhibited such that women are reduced to those parts; or
> (vii) women are presented being penetrated by objects or animals; or
> (viii) women are presented in scenarios of degradation, humiliation,
> injury, torture, shown as filthy or inferior, bleeding, bruised, or
> hurt in a context that makes these conditions sexual (MacKinnon
> 1987,176).
> 
> 



Dworkin and MacKinnon allow that sexually explicit material that
treats men, children or transsexuals in sexually dehumanizing or
subordinating ways also counts as pornography.



The Dworkin-MacKinnon definition has two parts or stages. The first
part of the definition defines "pornography" broadly in
terms of a certain functional role or, as MacKinnon puts it, in terms
of "what it does": "Pornography" is that
sexually explicit material, whatever it is, that subordinates
women.[4]
The second part of the definition, the
content list (i)-(viii), goes on to list of the sorts of sexually
explicit material that MacKinnon and Dworkin think *in fact*
functions to subordinate women, as revealed by the testimonial,
experimental, social and clinical evidence. The content list aims to be
sufficiently precise so as to minimize the likelihood of legislation
against pornography, so defined, threatening other forms of
speech - although many "anti-censorship" feminists, along
with traditional liberal defenders of pornography, are not convinced
that it succeeds (Hunter and Law 1985; R. Dworkin 1993).



I draw attention to the two-stages of the definition to reinforce a
point made in section 1: that one might agree with Dworkin and
MacKinnon that pornography, defined purely functionally or conceptually
as sexually explicit material that subordinates women, would be a bad
thing, and yet disagree that the material with the features that they
go on to list in fact does this. (This might help to defuse some of the
frequently acrimonious debate in feminist circles surrounding
MacKinnon's now famous claim that one cannot genuinely be a feminist
and be pro-, or at least fail to be anti-, pornography. Feminists are,
of course, opposed to anything that subordinates or oppresses women.
Yet there is surely room for reasonable disagreement about what, if
any, sexually explicit material does this, and whether pursuing legal
regulation of it is a desirable feminist strategy.)



The harms that most concern anti-pornography feminists fall into two
broad categories: 1) coercion and exploitation of women actors in the
production of pornography; and 2) indirect harms to women, both as
individuals and as a group, resulting from the consumption of
pornography.



One particularly graphic example of the first sort of harm is
documented in the book *Ordeal* *(Lovelace and McGrady
1980)* about Linda Marchiano, who starred as "Linda
Lovelace" in the famous pornographic film *Deep Throat*.
In *Ordeal*, Marchiano tells of how she was abducted,
hypnotized, drugged, beaten and tortured in order to perform her
starring role. Marchiano was one of a number of women who testified
about their experience of the harm caused by pornography at the
Minneapolis City Council hearings into pornography in 1983. (The
transcript of the hearings is published as *Pornography and Sexual
Violence: Evidence of the Links* (see Minneapolis City Council,
1988). Marchiano's case is a particularly horrifying and extreme
example of how women may be harmed in the making of pornography; and
much of what was done to Marchiano (the abduction, the beatings and
the torture) are criminal offences in their own right. Many, both
liberals and feminists, think that since these physical assaults
should not be allowed, enduring pornographic representations of these
crimes that cause further harm to the victim's interests should not be
permitted to be distributed or consumed either (MacKinnon 1987;
Wendell 1983).



Of course, not all women who perform in pornography are literally
physically coerced as paradigm slaves are, and as Marchiano was.
Nonetheless, many anti-pornography feminists are concerned that there
is an important sense in which the "choice" to participate
in the making of pornography may not be a genuinely free one for many
of the women who perform in it, who often come from underprivileged
socio-economic backgrounds and who have few alternative options for
making a living. Under these circumstances, there may be an important
sense in which the choice to perform in pornography is coerced, insofar
as the women would not have chosen to perform in pornography had other
reasonable options been available to them. The pornography industry may
take unfair advantage of underprivileged women, preying on their
psychic and economic vulnerability, to reap enormous profits at their
expense. MacKinnon puts the point graphically: Pornography is a public
institution of sexual slavery, trafficking in vulnerable women and
children, and profiting from their suffering and subjugation.



Some of the women who perform in pornography vigorously reject the
claim that they are exploited. At least in their own case, they argue,
the decision to become a porn star was a genuinely autonomous one
(Gruen and Panichas 1997). They regard the claim that they are victims
of exploitation as offensively patronizing and paternalistic, implying
that pornography is not a worthwhile or valid career choice, and
portraying the women who act in pornography as hapless dupes of
patriarchy. In reality, female porn actors may be fully autonomous and
intelligent citizens pursuing a perfectly valid and rewarding career of
their own choosing. Banning pornography, they argue, would constitute
unjustified, paternalistic interference with their right to pursue
their career of choice (McElroy 1995). Of course, that the decision to
pursue a career in pornography is a free and fulfilling one for
*some* women does not show that it is necessarily a free and
fulfilling choice for *all* or even most of the women who
perform in pornography.



Even if the pornography industry does exploit some of the women who
perform in it, however, there is a question about whether this
justifies disallowing it. As a number of feminists and liberals have
noted in reply, other industries (such as supermarkets or fast-food
chains) may likewise take advantage of workers with few alternative
opportunities. Should these too be banned on grounds of exploitation?
Surely not, they think. The best solution to such exploitation is
arguably not to ban pornography (or fast-food chains). For this would
only further deprive those already deprived of one more option, and one
that they might prefer over others of the limited range available to
them. We may do better to focus our efforts on redressing the
underlying economic and material conditions of disadvantage that make
exploitation possible, so that the choice to perform in pornography
might be made, if it is made, as a genuinely free one, under fuller
conditions of equality (R. Dworkin 1993; Wendell, 1983).



Second, anti-pornography feminists point to a range of indirect
harms to women that result from the consumption of pornography. (For a
variety of analyses here, see A. Dworkin 1981; MacKinnon 1987; Jeffreys
1990; Kappeler 1986; Coward 1984; Smart 1989, Ch. 6; Itzin 1998.) These
may include, but are not limited to, pornography's role as a cause of
violent sexual crime. Some feminists in the U.K. have argued for
anti-pornography legislation on the model of existing U.K. laws
preventing racial incitement: Pornography is speech that incites sexual
violence, and prohibition of such speech as incites sexual violence is
justified for the same reason as prohibitions against racially
incendiary speech, namely, to protect the physical security and bodily
integrity of individuals (Itzin 1992).



Other feminist arguments focus instead, or as well, on the broader
role pornographic representations may play in harming other of women's
significant interests. Some have suggested that pornography can be
viewed as a sort of false advertising about women and sexuality, or as
being akin to libelous speech - speech that defames women as a group,
causing corresponding harm to their reputation, credibility,
opportunities and income expectations. They argue that women as a group
have a right to (civil) legal protection from these harms and to claim
compensation for such harm as pornographic speech can be demonstrated
to have produced (Longino 1980; Hill 1987; MacKinnon 1995, 3-28;
for criticism, see Soble 1985). This is a promising strategy for
anti-pornography feminists, since liberals already generally accept
that individuals have a right to protection from libelous or defamatory
speech.



Other feminist arguments focus on the related role pornography may
play in restricting women's autonomy by reproducing and reinforcing a
dominant public perception of the nature of women and sexuality that
prevents women from articulating and exploring their own conceptions of
sexuality and of the good life (Easton 1994; Dyzenhaus 1992).



Yet another line of feminist argument draws on the work of the
prominent liberal philosopher, John Rawls, to suggest that regulation
of pornography is justified insofar as rational, self-interested
individuals in the original position would not agree to basic social
institutions that "asymmetrically either forced or gave strong
incentives to members of one sex to become sex objects for the
other" (Okin 1987, 68). Rae Langton (1990) also seeks to use
liberals' own theoretical commitments to make a (liberal) case for the
legitimacy of censorship, though her chosen liberal is Ronald Dworkin.
Langton seeks to turn the tables on Dworkin's argument in an ingenious
way, arguing that a consistent application of Dworkin's own principles
actually supports a policy that prohibits pornography, rather than the
permissive policy he himself favours. Preferences to consume
pornography necessarily depend on external preferences about the
inferior worth of women that violate women's right to moral
independence. Furthermore, positive arguments for prohibiting
pornography may aim at securing social equality for women. If this is
the goal, then, by Dworkin's own lights, pornographers would have no
rights against a prohibitive policy.



Many of these concerns figure in a somewhat new light in a
significant, rights-based strand of feminist argument associated
originally with Catharine MacKinnon. This approach has subsequently
been developed by scholars in several different ways (e.g., Bianchi
2008; Langton 1993, McGowan 2019, Mikkola 2017, Watson 2018). On one
distinctive version of this approach, pornography does not merely
*cause* sexual discrimination and others harms; its production
and consumption *constitutes* an act of sexual discrimination
(Langton 1993; McGowan 2019). Since this approach has provoked
particular interest and discussion among both liberals and feminists,
and has come to constitute a dominant framework for much of the
contemporary debate between liberals and feminists over pornography, it
is worth examining it in more detail. According to MacKinnon,
pornography harms women in a very special and serious way: by violating
their *civil rights* (MacKinnon 1984, 1987, 1992). In
particular, pornography subordinates women or *violates their right
to equal civil status*; and it silences them or *violates their
civil right to freedom of speech*.



Pornography subordinates women by *sexualizing* their
inequality. Pornography both expresses the view that women exist
primarily as objects for men's sexual gratification - that they are
men's sexual slaves, and frequently their willing sexual slaves - and it
propagates this view by conditioning consumers to regard women's
subordination as a sexy, natural and legitimate feature of normal
heterosexual relations. Pornography "sexualizes rape, battery,
sexual harassment, prostitution and child sexual abuse; it thereby
celebrates, promotes, authorizes and legitimizes them" (MacKinnon
1987, 171-172). By authorizing and legitimating the subjection of
women, pornography makes the very real harm of women's subordination
invisible as harm: Rape, harassment and other forms of oppression come
to be seen simply as sex. "The harm of pornography, broadly
speaking, is the harm of the civil inequality of the sexes made
invisible as harm" (MacKinnon 1987, 178). The view of women and
sexuality that pornography helps to form and perpetuate manifests
itself not simply in crimes of sexual violence against women, but in
discrimination against women more generally: in the legal system, in
politics and public debate, and in the workplace. Pornography
"institutionalizes the sexuality of male supremacy...Men
treat women as who they see women as being. Pornography constructs who
that is" (MacKinnon 1987, 172). By conditioning consumers to view
and treat women as their sexual subordinates, pornography undermines
women's ability to participate as full and equal citizens in public, as
well as private, realms.



One significant dimension of this inequality is that women's speech,
where it occurs, lacks the credibility, authority and influence of
men's. Women as a group are systematically and differentially
*silenced*, MacKinnon thinks; and pornography contributes to
this in at least three ways (MacKinnon 1987, 1995; for further
discussion, see Caponetto 2021; Maitra 2009; McGowan 2017, 2019; West
2021).



First, pornography silences women by helping to shape and reinforce
a hostile and uncomprehending social environment which makes many women
reluctant to speak at all. Thus, for example, rape, sexual harassment
and other violent sexual crime is significantly underreported by
women.



Second, pornography creates a social climate in which, even where
women do speak, their opinions are frequently paid little serious
attention - especially where what women say contradicts the picture of
women contained in pornography. Thus, women who do report sexual crime
are often disbelieved, ignored, ridiculed, or dismissed. In MacKinnon's
words, pornography "strips and devastates women of credibility,
from our accounts of sexual assault to our everyday reality of sexual
subordination. We are stripped of authority and reduced and devalidated
and silenced" (MacKinnon 1992, 483-484).



Third, pornography may silence women by causing their speech to fail
to be understood, or to be misunderstood. For example, pornography may
help to form and reinforce the general view that women who utter
"no" in sexual contexts frequently do not intend to refuse
a man's sexual advantages by so speaking, and indeed may often intend
to further encourage them in order to heighten sexual excitement. In a
social environment in which this expectation is prevalent, women may
not be able to successfully communicate the idea of refusal to others:
Although they may utter the appropriate sounds (e.g.,
"no"), those sounds may frequently fail to communicate the
idea they were intended to express. Pornography may thus prevent women
from communicating their ideas to others, not by preventing them from
producing or distributing sounds and scrawls, but by preventing those
sounds and scrawls from securing "uptake"
("illocutionary disablement") or being understood by
hearers as expressing the idea they were intended to express (Langton
1993; Hornsby 1995; Hornsby and Langton 1998; Maitra 2009; McGowan
2003, 2019; McGowan, Adelman, Helmers, Stolzenberg, 2011; Mikkola 2011;
West 2003, 2021; for criticism, see Anthony 2011, 2017; De Gaynesford
2010; Jacobsen 2001; Bird 2002; Bauer 2015). If pornography silences
women in this way, there may be some reason to be skeptical that the
solution preferred by many liberals (and feminists) of countering the
harms of pornography with more speech - protest, satire, education and
public debate - will be effective, for pornography may make the relevant
speech acts "unspeakable" for women.



For MacKinnon, then, a desire for pornography and sexual violence is
not an epiphenomenal symptom or side-effect of other material and
social conditions that lie at the root of women's subordinate position
in society, as some other feminists are inclined to think. Rather, it
is a central cause of the subordinate position of women in society. So
long as there is pornography, MacKinnon thinks, women will remain
subordinate and silenced.



One novel and strategically ingenious feature of MacKinnon's
argument against pornography (and one that has provoked much of the
more recent interest and debate) is her conceptualization of the harm
of pornography as the violation of women's *civil rights*, of
which sexual violence against women may be but one, albeit significant,
dimension. The violation of civil rights is a harm that most liberals
have special reason for taking very seriously. While some liberals
understand the notion of "harm" to others very narrowly, as
including only physical interference with a person's bodily integrity
(e.g., murder, battery, torture, kidnap, rape and other such physical
assaults), most liberals nowadays are inclined to accept a slightly
broader interpretation of the harm principle. On this broader,
interest- or rights-based interpretation of the harm principle, any
speech or conduct that willfully or negligently interferes with
important interests or *rights* of others is harmful conduct. On
this interest-based interpretation of the harm principle, the state is
entitled to pass laws against conduct that deliberately or negligently
interferes with the rights of others, just so long as the
rights-violation is sufficiently serious and the harm cannot
effectively be prevented by other, less costly means (for example,
through public education or debate). Of course, how this version of the
harm principle applies depends crucially on the nature and relative
importance of the rights that individuals have; and this is the subject
of much ongoing debate.



Some liberals have accepted that pornography may contribute to
women's subordination: if not by directly causing crimes of sexual
violence, then at least by conditioning consumers to view women as sex
objects, rather than as autonomous individuals worthy of equal concern
and respect. They grant that this may contribute to discrimination
against women in society and that it may prevent women from having the
same social and political influence that men generally possess. But,
they argue, this harm is not sufficiently great to justify interfering
with pornographers' freedom of speech. The right to freedom of
expression is a more important right. So, if we have to choose between
the right to equality (of women) and the right to freedom of speech (of
pornographers), we must choose freedom of
 speech.[5]
But MacKinnon's
argument, if successful, would turn the tables on these traditional
liberal defenses of pornography: Pornography could no longer be
defended simply on the grounds of the primacy of the right to freedom
of speech, for *permitting* pornography violates
*women'*s right to freedom of speech too. We now seem to have a
conflict of rights: not simply between pornographers' right to freedom
of speech and women's right to equal civil status, but within the right
to freedom of expression itself between pornographers' right to freedom
of speech and women's right to freedom of speech. Why should
pornographers' right to freedom of expression take precedence over
women's? The next section turns to the debates surrounding this
question.


### 4.2 Feminist Arguments against Legal Regulation



Of course, not all feminists object to pornography, even in
MacKinnon's sense (Burstyn 1985; Chester and Dickey 1988; Cornell 2000;
Hunter and Law 1985; Gruen and Panichas 1997; Rubin 1993). The question
of pornography and censorship has divided feminists, just as it has
begun to divide liberals. Some feminists argue that pornography is an
important form of sexual expression that does not harm women and may
even benefit them by liberating women and women's sexuality from the
oppressive shackles of tradition and sexual conservatism. Pornography,
on this view, is an important tool for exploring and expressing new or
minority forms of female sexuality. Far from making downtrodden victims
of women, pornography may have a vital role to play in challenging
traditional views about femininity and female sexuality and in
empowering women, both homosexual and heterosexual, to shape their own
identities as sexual beings. (Note that material that benefits women
ought to count as erotica, rather than pornography, on MacKinnon's
definition. So, as noted in section 1, if there is substantive
disagreement between "pro-pornography" feminists and
MacKinnon here, it will be about whether there really is any sexually
explicit material that is beneficial).



There are also a significant number of feminists who object to
pornography, or to certain forms of it, on the grounds that it harms
women, but who do not think that regulating or banning it is the most
desirable or effective way to remedy the harms that pornography causes.
These feminists, though not always liberals, nonetheless share some
general liberal concerns about using the "blunt and
treacherous" instrument of the law in the quest to redress harms,
especially in light of the way in which the law has frequently been
used to oppress women, or where laws enacted with the best of
intentions have nonetheless had this unintended effect. Censorship,
they think, may well cause more harm to women than it removes. They
recommend *more* speech - education, protest, picketing, satire
and public debate - rather than censorship or other forms of legal
regulation as less dangerous and more effective tools for raising
public consciousness and effecting the desired attitudinal and cultural
change. These feminists are anti-pornography (in the sense that they
think material that degrades women is objectionable), but they are also
anti-censorship.



Indeed, eighty individual feminists, along with the Feminist
Anti-Censorship Taskforce (F.A.C.T.) and the Women's Legal Defense
Fund, presented an *Amici Brief* to the *Hudnut* court
outlining a range of feminist concerns about the anti-pornography
legislation proposed by MacKinnon and Dworkin (Hunter and Law 1985).
These included concerns about the political dangers of feminists
aligning themselves with the conservative, evangelical right; the
possibility of the legislation discriminating against minority forms of
sexuality (e.g., lesbianism); interference with women's freedom to
choose to produce and perform in pornography; perpetuating traditional
ideas that sex is bad for women; and diverting attention and resources
away from more important immediate efforts to bring an end to violence
against women.


## 5. Ongoing Debate: Liberals and Feminists



Despite the efforts of anti-pornography feminists, many traditional
liberal defenders of pornography remain unconvinced. They typically
continue to maintain either that pornography does not cause harm to
women (in the relevant, usually narrow, sense of "harm"),
or they admit that pornography probably does cause some harm to women's
interests, but deny that this harm is sufficiently great to offset the
dangers inherent in censorship and to justify the violation of the
rights of pornographers and would-be consumers.


### 5.1 Does Pornography Cause Harm to Others? The Empirical Evidence



Liberal defenders of pornography readily admit that, if there were
reliable evidence to show that consumption of pornography significantly
increases the incidence of violent sexual crime, there would be a very
strong liberal case for prohibiting it. However, liberal defenders of
pornography remain unconvinced that there is reliable evidence to show
that pornography is a cause of rape or other sexual crime. Ronald
Dworkin, for example, writes "...in spite of MacKinnon's
fervent declarations, no reputable study has concluded that pornography
is a significant cause of sexual crime: many of them conclude, on the
contrary, that the causes of violent personality lie mainly in
childhood, before exposure to pornography can have had any effect, and
that desire for pornography is a symptom rather than a cause of
deviance" (1993, 38).



The question of whether pornography causes harm raises tricky
conceptual issues about the notion of causality, as well as empirical
and methodological ones (Eaton 2007; Schauer 1987; The Attorney
General's Commission on Pornography 1986, excerpts from which are
reprinted in Mappes and Zembaty 1997, 212-218). The causal
connection between consumption of pornography and violent sexual crime,
if there is one, is unlikely to be a simple one. As some liberals have
argued, it seems implausible to think that consumption of pornography,
on a single or even repeated occasions, will cause otherwise
"normal, decent chaps" with no propensity to rape suddenly
"to metamorphose into rapists"(Feinberg, 1985, 153; also
see entry on
 Freedom of Speech).
However, we might agree with Feinberg and yet think that pornography
might still be a cause of rape. Consumption of pornography might cause
rape by making it more likely that those who are already inclined to
rape will actually rape, thereby increasing the overall incidence of
rape. Of course, pornography may not be the *only* cause of rape
or other violent sexual crime. The contributing causes of violence
against women are likely to be numerous and connected in complex ways:
they may include, among other things, "macho values" (as
Feinberg suggests) and certain sorts of childhood events and
circumstances (as R. Dworkin says). But the mere fact that there may be
*other* causes of sexual violence against women does not show
that consumption of pornography cannot *also* be a cause.
Consumption of pornography may, on its own, be neither necessary nor
sufficient for violent sexual crime (or for sexist attitudes and
behavior more generally); yet it might still be a cause of violent
sexual crime and these other harms if it increases the incidence of
them.



It might be helpful to consider an analogy with smoking. Smoking
cigarettes, on its own, is neither a necessary nor a sufficient
condition for developing lung cancer, since there are people who smoke
like chimneys who never develop lung cancer and live perfectly healthy
lives to a ripe old age; and there are people who have never smoked a
cigarette in their whole life who develop lung cancer. Yet it is
generally agreed nowadays that smoking cigarettes is a cause of lung
cancer. This is because smoking (in combination with other factors such
as genetics, diet and exercise) makes it significantly more likely that
a person will develop lung cancer, or so the studies suggest. Likewise,
we might think that consumption of pornography will be a cause of
violent sexual crime (or of sexist attitudes and behavior more
generally) if there is good evidence to suggest that consumption of
pornography increases the incidence of sexual violence or sexist
behavior, holding fixed other known causes of these harmful states of
affairs.[6]



There is considerable disagreement, among social science researchers
as well as liberal and feminist philosophers, about whether pornography
is a cause of violent sexual crime (Donnerstein et al. 1987; Copp and
Wendell 1983; Itzin 1992). Both the final report of the Commission on
Obscenity and Pornography in the U.S. in 1970 and the Williams
Committee Report on Obscenity and Film Censorship in the U.K. surveyed
the data from clinical and experimental trials then available and found
no evidence of a causal connection between pornography and rape
(although the 1970 Commission did not review the evidence concerning
sexually violent material). However, the Attorney General's Commission
on Pornography in the U.S., which submitted its final report in 1986,
found that the clinical and experimental research "virtually
unanimously" shows that exposure to sexually violent material
increases the likelihood of aggression toward women and that "the
available evidence strongly supports the hypothesis that substantial
exposure to sexually violent materials...bears a causal
relationship to antisocial acts of sexual violence and, for some
subgroups, possibly to unlawful acts of sexual violence" (Mappes
and Zembaty 1997, 215). The report also found that non-violent but
degrading pornographic material produced effects "similar to,
although not as extensive as that involved with violent
material." However, the report concluded that non-degrading and
non-violent material (erotica, in feminist terms) "does not bear
a causal relationship to rape and other acts of sexual
violence."



A more recent meta-analysis revealed an overall significant positive
association between pornography use and attitudes supporting violence
against women in non-experimental, as well as experimental, settings
(Hald, Malamuth and Yuen 2010).



A number of studies have found a positive correlation between
exposure to violent pornographic images (for example, of rape, bondage,
molestation involving weapons and mutilation) and positive reactions to
rape and other forms of violence against women. Studies suggest, among
other things, that exposure to violent pornography can significantly
enhance a subject's arousal in response to the portrayal of rape, that
exposure to films that depict sexual violence against women can act as
a stimulus for aggressive acts against women, and that prolonged
exposure to degrading pornography (of a violent or non-violent sort)
leads to increased callousness towards victims of sexual violence, a
greater acceptance of "rape-myths" (for example, that women
enjoy rape and do not mean no when they say "no"), a
greater likelihood of having rape-fantasies, and a greater likelihood
of reporting that one would rape women or force women into unwanted sex
acts if there was no chance of being caught. Skeptics, however, argue
that existing studies have serious limitations and flaws (Altman 2018)
and point to countries such as Japan that have low reported rates of
sexual assault but high rates of pornography consumption as evidence
that the connection between pornography consumption and sexual violence
is weak (Strossen 1995).


### 5.2 Liberals and Feminists



The empirical evidence remains the subject of ongoing debate and
investigation. But in the absence of sufficiently conclusive evidence
that pornography is associated with a significant increase in violent
sexual crime, liberals may continue to view the case for legal
regulation as weak.



However, the rights-based feminist arguments against pornography do
not rest entirely on the claim that consumption of pornography is a
significant cause of violent sexual crime. The claim that pornography
contributes to women's inequality, and the claim that it violates
women's right to freedom of speech, can rest on more moderate empirical
claims about which there is likely to be more agreement: for example,
that pornography helps to form and reinforce the view that women are
sex objects, which manifests itself in how women are perceived and
treated in society and so perpetuates women's inequality. Among other
things, it may increase the likelihood of sexual harassment and other
forms of discrimination against women, undermine women's credibility in
certain contexts, encourage a general expectation that women who say
"no" in sexual contexts often do not intend to refuse, and
so on.



Ronald Dworkin is one prominent liberal who has explicitly
considered, and rejected, MacKinnon's version of the rights-based
arguments for anti-pornography legislation. This is not primarily
because he rejects the moderate empirical claims. Rather it is because
he thinks that, even if those claims were true, there would be no
legitimate sense in which the publication and voluntary private
consumption of pornography violate women's civil rights.



According to Dworkin, the argument for anti-pornography legislation
on the grounds that pornography subordinates women rests on the
"frightening principle that considerations of equality require
that some people not be free to express their tastes or convictions or
preferences anywhere" (Dworkin 1993, 39). Accepting this
principle would have "devastating consequences," namely,
that "government could forbid the graphic or visceral or
emotionally charged expression of any opinion that might reasonably
offend a disadvantaged group. It could outlaw performances of *The
Merchant of Venice*, or films about professional women who neglect
their children, or caricatures or parodies of homosexuals in nightclub
routines." Dworkin's concern is a kind of logical slippery slope
objection that he takes to constitute a *reductio* of
MacKinnon's view. The worry is that the principle that underpins
MacKinnon's argument would, if consistently applied, threaten many
other forms of speech in clearly unacceptable ways.



Note that Dworkin construes - or misconstrues - MacKinnon's argument
as a version of the old moralistic argument that objects to pornography
on grounds of its offensiveness; and, as we have seen, liberals reject
offense as legitimate grounds for preventing the voluntary consumption
of pornography in private. However, MacKinnon's argument does not - or
need not - rest on this "frightening" principle. The
feminist case is not that pornography should be regulated because it
expresses opinions that are offensive to feminists. Rather, it should
be regulated because, offensive or not, it contributes significantly to
a regime of sexual inequality.



Nonetheless, *this* principle - that government is justified
in prohibiting speech that contributes significantly to a group's
inequality - is one that some liberals may find equally disturbing. For
it may well apply to speech other than pornography, including perhaps
the examples that Dworkin mentions.



Dworkin is not alone in this concern. Other liberals and feminists
have questioned MacKinnon's focus on pornography as the key site of
women's oppression when it seems that many other *non-sexually*
explicit materials plausibly also endorse and perpetuate a view of
women as sex objects, albeit perhaps in less graphic and explicit
forms. (Perhaps this lack of explicitness makes them more insidious,
and hence of more, rather than less, concern.) Pornography may
*sexualize* women's inequality, but advertising and romance
novels plausibly *glamorize* and *romanticize* it
respectively and hence may celebrate, authorize and legitimize women's
inequality in the same way as pornography (e.g., Cocks 1989; Coward
1984; Valverde 1985; Kappeler 1986; Skipper 1993). Indeed, some of
these other representations may be especially worrying, not simply
because they may be more pervasive, but also insofar they may condition
women to be complicit in their own subjection. MacKinnon's focus on the
graphic sexually explicit material that celebrates women's inequality
may thus seem arbitrary in the absence of evidence that the sexually
explicit subset of material is an especially significant cause of
women's inequality.



Perhaps there are principled, pragmatic reasons for singling out
pornography (i.e., the sexually explicit subset of the material that
conditions people to view women as willing sex objects) for censorship
or regulation, even if we were to agree that non-sexually explicit
material may also condition consumers to this view of women. It might
be that censorship of pornography would alleviate a considerable amount
of this harm, without incurring the same costs as censoring some or all
of the non-sexually explicit material that contributes to the harm. But
this is controversial.



What about the claim that pornography violates women's right to
freedom of speech? The argument rests on a "dangerous
confusion," Dworkin thinks: the confusion of positive and
negative liberty. It rests on the "unacceptable proposition: that
the right to free speech includes a right to circumstances that
encourage one to speak, and a right that others grasp and respect what
one means to say....These are obviously not rights that any
society can recognise or enforce. Creationists, flat-earthers, and
bigots, for example, are ridiculed in many parts of America now; that
ridicule undoubtedly dampens the enthusiasm that many of them have for
speaking out and limits the attention others pay to what they have to
say" (Dworkin 1993, 38). But, Dworkin suggests, we surely should
not think that this violates their right to freedom of speech: e.g.,
that creationists have a legitimate claim on the state to ban the
publication of books or videos recommending the theory of evolution on
the grounds that these may cause the speech of creationists to receive
an unsympathetic or dismissive reception.



Dworkin concedes that it is perhaps true that the right to freedom
of speech, if it is to be meaningful, requires that everyone has some
opportunity to have their ideas heard: a society in which only the rich
and powerful have access to the media may be one in which there is not
genuine freedom of speech. But it goes far beyond this, Dworkin thinks,
to claim that a meaningful right to freedom of speech requires "a
guarantee of a sympathetic or even competent understanding of what one
says" (Dworkin 1993, 38). This would license state regulation of
speech on a massive scale, paving the way to terrible
"tyranny" (Dworkin 1993, 42).



A number of commentators have developed Mackinnon's claims in the
face of Dworkin's response, arguing that, to be valuable, freedom of
speech must be more than simply being free to produce and distribute
sounds and symbols that have a meaning in a language. It requires, in
addition, that there are not systematic barriers to audience
"uptake" of speech--i.e., that audiences are not
systematically prevented from recognizing speakers' communicative
intentions (e.g., Hornsby and Langton 1998; West 2003; for replies, see
Jacobson 2001; Green 1998). In different ways, these commentators argue
that the traditional liberal conception of free speech, and of the
right to free speech, fails to pay sufficient attention to the way
language works and, in particular, to the way in which what words
mean - and so what it is possible for speakers to communicate or
*do* with their words - depends on social context, a context that
pornography may help to shape and perpetuate.



The traditional liberal conception of freedom of speech assumes that
people are free to speak just so long they are not prevented from
producing meaningful sounds and scrawls that others are not prevented
from hearing or viewing. But we might wonder whether this is sufficient
to protect free speech, even by liberals' own lights. A society that
permitted the distribution of meaningful sounds and symbols, but
somehow managed systematically to prevent those sounds and symbols from
being comprehended by audiences, would be little better as far as free
speech values are concerned than a society that simply prevented
distribution of meaningful noises altogether. Either way, speakers are
prevented from communicating their opinions to others, which defeats
what liberals take to be the point of free speech: the right of
speakers not to be prevented by the actions of other agents from
communicating their feelings and opinions to others who might wish to
hear them (West 2003).


## 6. Non-Legal Remedies



So far, I have focused on the controversial question of whether and
why legal regulation of (some) pornography--either in the form of
criminal liability or civil penalties--can be justified in a
liberal society. But legal regulation is costly. Consequently, if there
are less restrictive measures to prevent or counteract pornography's
harms available, these should obviously be preferred instead
of--or as well as--legal regulation.



By far the most popular alternative to regulation recommends
countering "bad" speech with more "good" speech
(Gelber 2021). In principle, this might include government sponsored
public education campaigns to warn consumers of the harmful effects of
consuming violent and misogynistic pornography, and/or to promote a
counter-message of sexual equality and respect for women. In practice,
however, liberal states have generally taken little direct action to
counteract inegalitarian pornography's messages about women and sex,
preferring to leave the burden of counter-speech entirely to private
individuals. Even if legal regulation of violent and misogynistic
pornography is unwarranted or undesirable all things considered, such
state inaction in the face of pornography's role in endorsing and
perpetuating sexual inequality may be indefensible. If violent and
misogynistic pornography perpetuates and reinforces harmful sexist
attitudes and behavior (quite apart from whether it also leads to
sexual violence) then there may be an important role for governments to
play in helping to counter pornography's harmful sexist messaging
through government-backed public education campaigns. Without
restricting anyone's speech, such campaigns would lend the epistemic
and political authority of the state to private opinion in countering
harmful inegalitarian messages about sex. State-backed counter-speech
may be especially important to inform adolescent consumers of harms
associated with inegalitarian pornography, and also if private
counter-speakers are silenced, so that counter-speech is otherwise
liable systematically to be ignored or misunderstood (see Dotson's
discussion of "testimonial quieting" in Dotson 2011).



In the end, it is an empirical question what combination of legal
and non-legal means are likely to be most effective in challenging
sexual inequality; however, there are some reasons to think that
counter-speech alone may be less effective than advocates commonly
suppose. Firstly, if widespread consumption of pornography
"silences" women, or restricts their ability successfully
to communicate relevant counter-messages, then counter-speech is not an
option, at least for those silenced. Secondly, pornography may affect
consumers' attitudes in ways that escape their conscious notice. It may
be going too far to liken consumers of pornography to Pavlov's dogs,
but it is not unreasonable to think that much of pornography's
influence is less than fully mentally-intermediated, and so less
amenable to rational revision in response to counter-speech.


## Conclusion



What are the harms of pornography? How should liberal societies
respond to the proliferation of harmful pornography? How should
liberals conceptualize and balance important values such as equality
and freedom of speech? What role should the state play in protecting
and promoting values such as autonomy and equality? Can liberal ideals
be reconciled with feminist principles and goals? The search for
answers to important questions such as these accounts for much of the
ongoing philosophical interest in the question of pornography and
censorship.