Part 3: Is Pornography Harmful to Others?
As we have seen, the focus on pornography as obscenity has several problems. Most notably, the definitions of obscenity are vague and difficult to enforce. This has lead to many opponents of pornography to focus on the issue of harm instead. If pornography is harmful to others, then there would be a strong reason to criminalize pornography, even for libertarians and defenders of the harm principle.
Generally speaking, Mill's harm principle would defend pornography as not harmful to others. However, Mill's own arguments concerning free speech (that also apply to pornography which is a form of speech) seem to indicate that free speech is important because it can be true or false (that you actually may communicate something of value). It is not clear that pornography fits the general criteria that Mill has in mind for free speech. Still, the prime arguments surrounding pornography focus on the question of harm, which is Mill's central concern.
Pornography is said to be harmful in one of two ways.
- First , there is the paternalistic argument that pornography is bad for you (it is a vice). This argument is good, but does not persuade libertarians or harm principle supporters who oppose paternalism.
- Second , pornography causes a "secondary harm" to others. If this second argument is successful, then we can not only hold that pornography is bad for you, but also that it harms third parties (thus eliminating the harm principle as a defense of pornography). This line of argument brings us a new distinction between primary harms and secondary harms .
Primary harms cause a direct harmful effect (murder, rape, theft, and assault).
Secondary harms are indirect harms; they are harmless in themselves but lead to other harms. For example, owning burglar tools is not a harm in itself, but ownership is harmful in that it enables other harms to transpire.
This notion of a secondary harm is new to our discussion. It may turn out that we refuse to accept the idea of a secondary harm as a legitimate harm. For the moment, however, let us pursue this argument as it applies to pornography.
Pornography as a Secondary Harm
Pornography is claimed to be harmful (to women) in three ways:
- Pornography, especially violent pornography, is implicated in the committing of crimes of violence against women. (For instance, Ted Bundy, who murdered many women, claimed that pornography made him do it.)
- Pornography is the vehicle for the dissemination of a deep and vicious lies about women. It is defamatory and libelous . (If so it cannot be called "free speech" as libel is not a protected form of free speech.)
- The diffusion of such a distorted view of women's natures in our society supports sexist attitudes and thus reinforces oppression and exploitation of women.
To bolster these three arguments, we can employ Catharine MacKinnon's definition of pornography:
. . . the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display: reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior: bleeding, bruised or hurt in a context which makes these conditions sexual.
MacKinnon rejects the legal definition of pornography (as part of obscenity law) because the "average person" is not a gender neutral person; hence their judgment would not reflect women. In fact, MacKinnon does not think that pornography is a subclass of obscenity. Obscenity is a moral question about how we ought to act. In contrast, pornography "is a political practice, a practice of power and powerlessness." Sexual material not described in the above definition is what MacKinnon consideres " erotica " and erotica is not necessarily something that society should prohibit. The claim contained in this definition is that pornography has implications for sexual equality, or, in other words, pornography presents a harm to women. To illustrate this point, the effect of pornography on the equal status of women is often compared to how segregation contributed to the subordinate status of African-Americans.
In order to understand the civil rights aspect of this argument, two conditions must be understood.
- First, that as a fact of the matter, women do not have equal status in society.
- Second, that pornography contributes significantly to the continuing subordinate position of women.
If we accept both of these conditions, then it does appear that women are harmed by pornography. These conditions are supported by the economic inequality between the sexes, but also in the sexual victimization of women. For instance, one study claims that 44% of women experience rape, 85% experience sexual harassment, and 38% of girls are molested. This stands, presumably, in contrast to very low numbers of men with the same experiences.
To recap: Pornography would be a harm to the equality of women in one of three ways.
- Pornography sends a false message about women-a miscommunication of women's desires and their place in society.
- Pornography influences male behavior towards women in a negative way.
- Pornography is also linked as a causal factor in sexual crimes against women.
As an issue of free speech, pornography could be restricted because either (a) it constituted an incitement of harm (a condition Mill accepts) or (b) the right to pornography is outweighed by society's compelling interest in protecting women from discrimination. (This is an accepted U.S. constitutional limitation on free speech.)
These arguments cover "sexually violent material" and "nonviolent materials depicting degradation, domination, subordination, or humiliation." However, this argument does not cover two other types of pornography: 1) non-violent non-degrading material (often called "erotica") and 2) violent and degrading material that does not involve women or in which women are not the subject of degradation/violence but the perpetrators (Gay porn involving men or where women dominate the men). We will not address these issues here (though you should give them some thought); for now, we shall examine the above argument that pornography is harmful to women. This argument does two things.
- It provides three claims of how pornography causes a secondary harm. They are secondary harms because it is not the viewing that causes the harm, but the viewing which will enable or lead to a future harmful action.
- It limits the defense of pornography in terms of privacy and free speech. It attempts to accomplishes the second part by claiming pornography is libel (which in all definitions is not free speech), and since pornography is an industry carried out in public, it cannot be defended as purely private.
Is pornography a sufficient harm to justify restricting it?
After answering the above question ponder the following two questions.
Q: Have feminist authors, like MacKinnon, left themselves vulnerable by describing pornography strictly in terms of violence against women? (i.e. excluding gay male porn or pornography in which men are treated as she describes in her definition of porn?)
Q: What role, if any, do the "liberty rights" of women to control their own lives by working in the pornography industry play in your answer?
Are these Secondary Harms really Harms? (Summary of the counter-argument)
The argument in defense of pornography only seeks to defend the morality of pornography in which all participants are (a) adults, (b) consenting, (c) non-deceived, and (d) rational.
Q: I s the fact that pornography is often demeaning to a group a reason to call it a harm?
Think of the Old Testament. A good many groups of people in the Middle East were portrayed as bad people. The Philistines were depicted as a bunch of yahoos who beat up on people until David defeated their giant. All kinds of literature demeans or degrades one group or other, yet we do not restrict it-only porn. Is this restriction really due to the demeaning portrayal or is it because "sexual content is offensive to many?" Many old films portray different groups very negatively, yet we do not ban them. Birth of a Nation, for example, portrays the Ku Klux Klan as heroically rescuing white women from the ravages of black men, but there was no movement to ban the film because it was demeaning.
Q: Does the fact that women are falsely depicted in porn, as desiring only to please men, make it a harm?
Again the fact that something is false does not justify us in preventing others from saying it. Granted, you can libel an individual, but do we really want to apply libel laws to any group or belief incorrectly portrayed? Imagine all the lawsuits against "stereotypes" on TV. If we have a TV show in which all southern men are depicted as driving big trucks with gun racks while wearing overalls and having a mouth full of chew, leaving them barely able to talk in a thick drawl, have we " harmed " southern men? Or is the real issue offense ?
Q: Does pornography encourage sex crimes?
Does pornography cause more crimes than alcohol? Is pornography more of a crime causer than TV violence? There is little evidence that porn causes crimes. How many millions of people watch porn and never rape anyone? Even if evidence shows that pornography leads to some crimes, that evidence would have to show a significantly higher rate of crime than violent TV programs, movies, video games or drinking. If there is a correlation between pornography and sex crimes, we must remember that a correlation is not a cause. For example, there is a correlation between the number of doctors in a city and the amount of alcohol consumed. This is not a cause-and-effect relationship, though, because the cause of both factors is the size of the population. So too, if there is a correlation between the amount of pornography and the amount of sex crimes, this does not show a cause; the cause may be something else entirely.
The argument in defense of pornography attempts to break down the arguments against pornography into one of two things:
- First , the objection to porn is really about offense, which is irrelevant to the harm principle (but may trigger Feinberg's offense principle as we will see below).
- Second , if it is not offense, then it is paternalism. (You shouldn't see porn because it is bad for you.)
In neither case is it an issue of harm, leaving libertarians and supporters of the harm principle no cause to criminalize pornography.
If the defenders of pornography succeed in doing this, then they can employ the harm principle as a moral defense of pornography. Of course, this defense only works if both paternalism and Feinberg's offense principle are rejected.
There may also be a positive case offered for allowing pornography. For instance, some have argued that to restrict pornography on the grounds of protecting women is itself a harm to women. Many women freely take part in the pornography industry. One of the main goals of feminism is equality with men. To restrict pornography on the grounds of "protecting women" is to say that a woman's consent to a contract is invalid. This places women in an unequal status with men, a status in which women need protection as they cannot protect themselves. No one has argued that we need to restrict men from contracting to work in the porn industry to prevent their exploitation; why then do we think the women need protection from themselves? The argument can be made that to restrict pornography is a harm to women and a violation of women's liberty by invalidating the consent of women to engage in production, distribution, and consumption of pornography.
In addition, even if we are not persuaded by the defense of pornography, there is a practical argument against any attempt to prohibit pornography. Prohibition of pornography depends upon our accepting that:
- Exposure to pornography leads to harms against women.
- That a prohibition against pornography would significantly reduce these harms.
- Government censorship would effectively prohibit pornography.
Can we prove each step? Even if we accept (1), is it the case that (2) and (3) can be practically accomplished? Or will this only create an unregulated black market which causes all the harms of (1) and adds additional harms due to the nature of black markets?