Chapter 11: Pornography

1. Chapter 11: Pornography

2. Problems defining what counts as pornography: • descriptive, morally neutral definition: sexually explicit material that has as its primary purpose the stimulation of sexual excitement or interest. (p.232) • normative, value laden definition: verbal or pictorial explicit representations of sexual behavior that … have as a distinguishing characteristic the degrading and demeaning portrayal of the role and status of the human female … as a mere sexual object to be exploited and manipulated sexually. (p.232, from Helen Longino) • legal definition: “obscenity” defined as depictions or works that were “patently offensive” to local “community standards” that appeal to “prurient interests,” and that taken as a whole lack “serious literary artistic, political or scientific value.” (LAPS test)(p.232 from US Supreme Court Miller v. California)

3. Liberty Limiting Principles: The Harm Principle J. S. Mill • “That only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” On Liberty, 1859

4. The Harm Principle Defining Issues: • What is the harm – physical, psychological, moral, social…? • When is the harm serious enough to warrant the force of law employed? • In the case of pornography can one validly correlate the viewing and incidence of subsequent harmful consequences? • Problem of conflicting interests: Would the restriction constitute a greater harm to others?

5. The Social Harm Principle • The idea involved in this second liberty-limiting principle is that the law may prevent people from doing what they wish or choose to do when their action causes harm to society itself. (p.234) Susan Wendell: • “Society has the right to protect itself from the disorder and oral disintegration that result from individuals unduly pursuing their sexual self-interest…the government has the right therefore to limit such forms of expression.” (p.236)

6. The Social Harm Principle Defining issues: • Is a society legitimately distinguishable from its collective members? • This principle does not require that the society be a just or good one…should that matter? • This principle makes a distinction between harming the majority of its members and harming the society itself…this implies that it could be invoked even if only a minority of individuals or even no individuals are affected.

7. Liberty Limiting Principles: The Offense Principle • Is based on assumption that we do not have the right to offend others. • Replaces label of pornography with “obscenity” – defined as “patently offensive” (p.235) • Assumes harm is psychic • As with the harm principle, requires determination of sufficiency and extent of offense • Often involves issues of avoidability • Offense to minority, women or specific racial group may be sufficient basis for restriction. • Is not easily applied to internet or video.

8. Liberty Limiting Principles: Legal Paternalism • Posits government’s right to restrict actions that harm oneself • Restrictions would be based on assumptions that viewing pornography is somehow harmful to the individual • Often invoked in case of restricting access to children • May also be used to justify labeling, advertising and distributing restrictions

9. Katie Couric & Glee A Report of the GQ spread with Glee Stars on ABC News • http://abcnews.go.com/Entertainment/video/video-released-racy-glee-photo-shoot-for-gq-magazine-11945454 Couric’s comments: • http://www.cbsnews.com/8301-500803_162-20020255-500803.html

10. Liberty Limiting Principles: Legal Moralism • Posits that one’s actions may be limited because they are immoral…just because they are immoral. • Usually applies to supposedly harmless immoralities or so called “victimless” crimes • May raise questions regarding conflicts with the Establishment Clause of the First Amendment: "Congress shall make no law respecting an establishment of religion“ if judgment of morality is based on religious foundations.

11. Legal Moralism: Flynt and Falwell • FALWELL: “Well, I have never had any ill feelings toward him. I think that his business is sleaze and garbage, and I think that it's demeaning to women and children…. I am a Christian. My interest is that the next time around Larry, when he accepts Christ, he'll really mean it and go on and get rid of that magazine and go for God.”

12. Legal Moralism: Flynt and Falwell • FLYNT: “The type of humor published in "Hustler" is outrageous political and social satire and offensive cartoons. But this is the kind of material the people in the workplace, the shops and the factories are really into and find funny, and that's who I publish the magazine -- I am not publishing the magazine for the whole country, only for my readers. So, I was responding to that particular market. Yeah. So, I got a little bit of a sick sense of humor, so what?“

13. Legal Moralism • “I hated everything he stood for, but after meeting him in person, years after the trial, Jerry Falwell and I became good friends.” • LARRY FLYNT, the Hustler publisher commenting on his relationship with the late Rev. Jerry Falwell, who had sued him for libel after being parodied in his magazine. Wednesday, May. 16, 2007

14. Feminism and Pornography Andrea Dworkin: • “Pornography creates attitudes that keep women second class citizens…Porn teaches men that what they see reflects our natural attitudes.” (p.237)

15. Feminism and Pornography Catherine MacKinnon: • “Pornography eroticizes hierarchy.…It makes dominance and submission into sex.” (p.237)

16. MacKinnon on Pornography • 'How many women's bodies have to stack up even to register against male profit and pleasure presented as First Amendment principle?'“…the pornography industry is an industry of trafficking women, and it's covered up as a form of speech, and it defended as therefore a First Amendment right. So the ways in which women are hurt by it begin with the women in it who are being prostituted through it and are typically gotten into it either as children or through a whole range of coercive means, all the way from physical force through economic coercion to being victims of sexual abuse, typically as children, and a whole range of means, and then exploited in it.The materials that are made through that abuse and exploitation that feed on it, that is to say, a lot of the women are being raped in the materials even when they aren't being presented as being raped,….”

17. Ann Garry: “Sex, Lies and Respect” • Is being treated as a sex object commensurate and inextricably linked with being a harmed object? • What is the relationship between loosing respect and being treated as a sex object? • Can pornography be produced and distributed in a non-sexist & non-degrading manner? • Could non-sexist pornography be used as an instrument for social change?