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3.5: The Ethics of Pornography- Deliberating on a Modern Harm (Eduardo Salazar)

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    17 The Ethics of Pornography: Deliberating on a Modern Harm
    Eduardo Salazar61

    The modern form of pornography can be difficult to define. However, we can initiate a discussion by contextualizing it. First, modern pornography is a product of free market capitalism: it has created a billion dollar industry. Second, it is a modern artifact that runs with technological advances. With the advent of the Internet, it has become readily available for anyone to experience it at virtually any time. Third, the notion of private (or hidden) sexuality has morphed into a more mainstream and public spectacle. There are now public conventions, such as Adult-Con, that promote and celebrate pornography. It is now a cultural icon of historical status. Philosophical discourse on pornography reflects on whether it should be prohibited due to the harm it causes. It involves a legalistic discussion pertaining to freedom of speech, civil liberties, and harms. As such, how ought civil society engage with it given its controversial nature? The purpose of this discussion is threefold. First, certain qualified definitions of pornography will be noted to better understand what is at stake. Second, anti-pornography arguments that seek to ban it will be discussed. Third, liberal views are presented to contrast with anti-pornography arguments. I conclude by providing reasons for endorsing a more liberal view on the civil status of pornography. Although I sympathize with many of the concerns that anti-pornography proponents worry about, I ultimately conclude that pornography presents us with a modern harm that a healthy, free society should contend and live with.

    A first move common in philosophy is to begin by clearly defining and explaining concepts in an argument or theory before providing a full discussion. The preliminary question we face here is what exactly counts as pornography? What criteria do we use to include certain material within the set of items deemed pornographic? How do we justify such criteria? What about marginal cases? Providing a neat and clean definition has proven quite challenging. In deliberating on an obscenity case in 1964, U.S. Supreme Court Justice Potter Stewart commented, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that”. We can entertain this shifting definition as a starting point. However, a working definition requires us to provide certain qualifiers to capture in greater accuracy the meaning of pornography.62 First, we can say that the definition falls under the broader concept of sexually explicit material. We can further say that sexually explicit material refers to the depiction of explicit sexual acts on a variety of mediums with the intention of arousing an audience, reader, and/or viewer to sexual stimulation. And by sexual acts we mean depicting direct or indirect intercourse between actors or toys, extreme “positions”, nudity, fetishistic symbolism, and/or sadomasochism.

    As it came to prominence in the public sphere in the late 19th century, pornography referred to material that was deemed obscene for public viewership because it corrupted our sense of morality, family values, and a healthy society.63 This obscenity position also chastised artistic workings of sexually explicit material, such as erotica or avant-garde risqué films. The obscenity position can be seen as a zero-sum account, which does not admit of degrees: anything that remotely depicts sexually explicit material that arouses stimulation is considered pornographic. But is all sexually explicit material pornography?

    Some contest that the obscenity position is too restrictive. This view negates carte blanche the artistic and philosophical exploration of sexuality, which is meant to be publicly shared with those interested. Contemporary scholars generally hold a permissive attitude concerning erotica as erotica focuses more on ideas and emotions pertaining to sexuality, rather than completely focusing on sex acts themselves. Erotica may also include intercourse, extremes, fetishisms, nudity, and/or sadomasochism, but there is a greater equality shared between women and men actors.64 That is, the parties involved have their ideas, feelings, emotions, and bodies tended to and highlighted to some equal extent, which seems to be lacking in pornography. For these reasons, some anti-pornography proponents allow room for sexually explicit material in the form of erotica, and rebuke the obscenity position which marginalizes all sexually explicit material. As such, it prevents the exploration and deeper understanding of sexuality. It also threatens freedom of speech as artistic expression. If erotica functions as legitimate artistic and philosophical expression, what exactly makes pornography proper so repulsive and wanton?

    Some of the most important and interesting arguments against pornography have been developed within feminist philosophy.65 The general feminist critique claims that pornography has an explicit and pernicious impact on those involved in making it, especially women. As such, feminist thinkers take it to mean: sexually explicit material that results in arousing a person that is deemed harmful. In contrast to erotica, this modified definition amends it as something that directly or indirectly promotes harming actresses and/or women more generally. Linda Marchiano’s autobiographical book Ordeal66 depicts the adult film industry as causing her significant harm. Marchiano, star of the infamous film Deep Throat, writes that abuse is a common practice in the making of adult films. She reported that she was kidnapped, beaten, and forced to perform under threat. The Marchiano case provided evidence to ban pornography because Ordeal showed that pornography perpetrated harmful criminal acts.

    It is important to note that anti-pornography arguments are generally grounded on the harm principle. The notion of harm has its philosophical roots in John Stuart Mill’s work in political philosophy.67 It serves as a principle that helps define personal freedom and potential government infringement of that freedom. Simply stated, the harm principle says that humans are agents who are free to pursue personal and social goals and interests to the extent that it does not harm others. If our actions harm others, it presents the government with evidence to justify their infringement and limit those harmful acts. For example, one can hold racist views. However, one is not free to harm another person due to their “inferior” race status. But does the Marchiano case provide sufficient evidence to justify banning pornography altogether?

    For one, the Marchiano case alone does not present sufficient evidence to justify banning pornography. If it were the norm, presumably more women would speak out and seek retribution. We simply need more evidence to validate Marchiano’s (anecdotal) case against pornography. Second, it is important to differentiate between criminal acts (abduction, assault, etc.) versus signing a contract to perform in a (adult) film. The criminal act of assault does not carry over into an arranged, specific legal contract (i.e., acting in a film). In other words, such criminal acts are not inherently present in the production of adult films per se. But the feminist can respond by saying that harm need not be defined as direct, brute physical harm.

    Certain feminist arguments have modified the notion of harm to mean that it promotes the subordination and servility of women. Consequently, such modification results in sexual violence perpetrated against women in the making of films and in the general public. Such a position posits a direct correlation between the making and viewing of pornography with the increased incidence rate of violence targeting women; rape is the most egregious offense motivated by pornography. While this correlation would be cause for great alarm, the evidence for such claims remains inconclusive.68 In fact, scholarly interest and research analysis on the effects of pornography is a new field of research. The first academic journal, Porn Studies, dedicated to scholarly research was first published in 2014. Subsequent studies have furthered revealed inconclusive results regarding its effects.69 As such, we should be skeptical about positions that condemn pornography for having a direct and strong correlation with increased sexual violence. Perhaps stronger correlation will be shown in the future, however.

    Legal scholar Catharine Mackinnon has reworked the notion of harm. She argues that harm is inherently present in pornography in subtle ways.70 Moreover, the debate is not only about freedom of speech, but it concerns acts (the making and dissemination of pornography) that cause harm. She claims that it harms women because it violates their civil liberties in two significant ways: 1. It violates their right to equal status. Women’s status is deformed to one of sexual objects, servility, and subordination; and 2. It violates their right to freedom of speech. Women are silenced by porn to define themselves as they deem right. We will briefly explore these two charges.

    First, pornography violates women’s rights to equality, which can be interpreted as a form of sexual violence and sexism. It portrays women as mere willing sexual objects, at the complete service of male fantasies, which constructs an image and status of a lesser and naturally subordinate gender. This unequal status permeates into mainstream society: politics, media, education, and renders women as inferior beings. It prevents women from acquiring jobs, education, etc. It presents us with a case of sex discrimination. Gender and sex discrimination are unlawful, and therefore pornography should be banned. But is this a clear case of harm or sexism?

    Do Hollywood films, music videos, or advertisements that depict women as subordinate also present us with cases of sexism? If so, we would need to prohibit numerous media projects that circulate in society. While pornography may lead to women being depicted as subordinate, it does not follow that it presents a case of discriminatory practices. Actors willfully engage in contractual agreements in making such projects knowing that they will be asked to act out these scripted subordinate roles. Furthermore, sexual subordination or domination (by one or both sex/gender) itself is not necessarily harmful. It can be part of healthy sexual engagement within a meaningful relationship.

    Second, McKinnon claims that pornography violates women’s rights to freedom of speech, which can be interpreted as a type of sexual violence and sexism. This second violation claims that pornography is harmful to women because it silences them in pernicious ways. A woman’s interests in expressing her freedom of speech is violated. In fact, MacKinnon sees pornographic material as libelous speech because it misrepresents women and nullifies their effort to respond in significant ways to articulate and rectify their image. It also prevents women from reporting incidents of sexual violence because a woman’s image (as a willing sexual object) and voice (misunderstood or dismissed) are drowned out. Similar to certain hate speech being regulated, pornographic material should also be banned because it is inherently harmful. This is an ingenuous reworking of the harm principle in the context of showing how pornography violates women’s right to freedom of speech. However, as with the above case of purported inequality, the fact that actresses willfully engage in contractual matters neutralizes this charge, as they know that they may need to engage in certain uncomfortable scenes, etc. We will now discuss how liberal arguments attempt to formulate and mitigate the harm problem of pornography.

    In general, the liberal argument for protecting pornography rests on three key legal and moral principles.71 First, the liberal argument contends that people have the right to express themselves as they deem meaningful, even if it offends certain sections of society. Minorities or fringe groups are protected by the right to freedom of speech. This right is protected to the extent that it does not harm another person and/or group. Hate groups have rights to the extent to which they do not inflict harm on another, and not just offend. But, as we have seen, the notion of harm becomes very thorny. Can we legitimately claim that material that portrays women as subordinate and unequal count as an act of harm, or should it be considered an offense instead? Because there is no clear connection between pornography and harm, it is wise to err on the side of the right of freedom of speech, at least for now. Otherwise, other groups may be prohibited from expressing their ideas by a moral majority in conjunction with (big) government.

    Second, the harm principle is another key element in the liberal defense, which serves two functions. It serves as the guarantee of the freedom of expression as long as it brings no harm to others. This is its positive variation. The other “negative” function serves to prevent organizations or government from encroaching on one’s right to expression. No government agency or moral mobs can enter production sets and confiscate and end filming without justification.

    Third, the principle of autonomy plays a central role as well. In order for any type of freedom to be meaningful, we must already assume that we have a significant amount of autonomy and power to make independent decisions as moral agents. We may make some poor decisions, but that alone should not warrant the erosion of our freedom of expression. In this manner, the liberal argument supporting pornography can be seen as presenting an anti-paternalistic view. That is, having the rational capacity of making decisions based on the best evidence at hand should ward off any other party from interfering with or prohibiting our choices.

    Given these liberal considerations, it is necessary to contextualize pornography, harmful speech and acts, and rights in terms of the notion of contractualism. As stated in the introduction, pornography has become a cultural staple and billion dollar industry. One of the basic elements present in industries is the legally binding contract made on free and mutually acceptable terms, ideally. Workers and actors actively engage in signing contracts to be in films. There may exist some deceitful and corrupt means by which workers sign contracts, but such practices have been reported to also be present in signing sports athletes to contracts, for example. Given the sordid entertainment industry, including both film and sports, we do not entertain prohibiting sports due to such practices. It is a matter of reframing the industry in their negotiating practices.

    The idea of contractualism helps legitimize the notions of autonomy, freedom of expression, workers rights, mutual benefits, amongst other crucial factors in a relatively free society. Contractualism, as a relational tool between individuals and groups, views people as rational beings capable of forming independent opinions and making independent decisions about what types of work to engage in. Pornographers engage in the production of extreme and graphic sexual material, but they do so willingly under contract. We can advise and educate people about the dangers of certain industries, but we should not take their right to engage in agreed upon contractual jobs.

    One of the most important liberal concerns regarding pornography lies in trepidation over paternalism. Simply stated, it refers to an authority figure who limits a person’s/group’s freedom in order to promote the person’s/group’s best interest, which runs counter to liberal notions of autonomy. The worry for liberals is that if the government prohibits pornography because of supposed harm, then it may outlaw other forms of expression. This line of reasoning takes on the form of a slippery slope argument. If right X is taken away, then right Y will be taken away too. But if right Y is taken, then surely right Z will also be stripped away. Typically considered a logical fallacy or a type of erroneous thinking, the slippery slope assumption found in (some) liberal arguments concerning pornography present a relevant potential harm.

    There are several key questions that underlie a fruitful discussion concerning pornography: does pornography, in fact, create and/or promote real harms? If so, what type of harms? What evidence can we provide to justify such harm claims? What types of harms are more detrimental than others? Or, does pornography reflect a decadent and hedonistic society? If it serves as a reflection of other problems, does it function as a cathartic means by which to release sexual/aggressive tension? The aim of our discussion was not intended to provide definitive answers to these questions. We need more research and analysis to more accurately determine the supposed harm caused by pornography. Newer media and technologies make it difficult to truly assess the harm of such an industry. That is why we must conclude, albeit tentatively, by stating that pornography is harmful, but not to the extent to which we are justified in prohibiting it. It is perhaps most harmful to the young actresses involved in its production who perform under great duress and subordination and who carry emotional scars for subsequent years. It is harmful to viewers as it may create problems for them in developing healthy, meaningful relationships. However, these noted concerns do not trump the fact that actors and viewers both actively engage in pursuing these harmful interests. As such, the ultimate conclusion to this discussion views pornography as a commodity, as addiction, as exploitation, as perversity, as misogyny, that harms. But it is a harm that we must allow to circulate if we truly respect human autonomy, and aspire to grow into healthy, mature adults who are capable of understanding and deliberating on complex, difficult questions.

    For Review and Discussion

    1. Can pornography be clearly defined? What are some of the concerns in attempting to define it?

    2. Is pornography inherently harmful? Why or why not? If so, how?

    3. This chapter mostly focuses on heterosexual pornography which dominates the industry. Do the arguments presented apply to non-heterosexual pornography? Why or why not?

    This page titled 3.5: The Ethics of Pornography- Deliberating on a Modern Harm (Eduardo Salazar) is shared under a CC BY license and was authored, remixed, and/or curated by Noah Levin (NGE Far Press) .

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