Freedom of speech does not justify pornography.

From Jacky Fleming.

Pornography advocates have one, and only one, argument to support their case: freedom of speech. So what does that mean exactly, and how does one argue for pornography on this basis?

As I’ve argued before, free speech is for individuals, not for corporations. Pornography is a capitalist product made by corporations, not something two people film in their bedroom. But now I want to look at the argument presented to us.

Valid rights and freedoms can only be exercised if they do not harm others. As the maxim goes, “your freedom ends where my nose begins.” There can be no such thing as the freedom to punch, main or kill, or the right to gulags or concentration camps. Likewise, even in our societies, freedom of speech is not absolute. We do not have the freedom to use our speech to defraud others, and rightly so.

Therefore, freedom of speech alone cannot provide a justification for pornography, especially not in reply to the harms of pornography, since the latter is a suitable response to the former.

The pro-pornography argument from freedom of speech is extremely simple:

Written or spoken pornography is an instance of speech, and all pornography is an instance of expression. A defence of freedom of speech, or of freedom of expression, is therefore implicitly a defence of the freedom to produce and consume pornography. Anyone who supports state prohibition or censorship of pornography is by that token supporting suppression of freedom of speech or expression.

We can express this argument as such:

1. Pornography is a kind of speech.
2. All speech should be protected.
3. Therefore pornography should be protected.

I will not dispute 1, but 2 is clearly false: many kinds of speech are not protected, and rightly so, including fraud, defamation, threats, and child pornography. The last example is rather relevant to the subject, so I will come back to it.

How can pornography be justifiably protected as speech? All the examples I gave involve harming, or threatening to harm, innocent people. And indeed advocates are forced to address the issue of harm when defending pornography.

As I’ve mentioned before, I am not interested in studies on the effects of pornography because I don’t think such studies are needed at all to make a conclusive case that pornography entails harm; we already know that pornography causes harm to women in three ways:

1. Pornography depicts verbal, physical and sexual abuse done to women. Not only is it real harm done to real women (the women involved in these depictions), but it is real harm done to all women (no different from any other form of hate speech, threat, intimidation, etc).

Porn advocates love to concentrate on the few fortunate porn actresses who have made a name of themselves, and are mostly rich and white, and not on the majority of the dispossessed and prostitutes on whose backs most pornography is made. Their rhetoric, like most voluntaryist rhetoric, is inherently elitist and colonialist. They belittle and insult women who have gone through prostitution and speak up against the institution, saying that they were unsuccessful or that they’re just bitter. They refuse to listen to the voices of anyone but the most privileged.

2. We know that approximately half of prostitutes report being used for the purpose of the production of pornography. Again, this is real harm done to real women (I have to keep specifying this because pornography advocates keep saying that pornography is not real, does not really harm, and is not done to real women).

3. Pornography usage communicate to men what kind of sexual acts they should want to perform on real women, who are really harmed by these acts.

To this, porn advocates have little reply but to argue that censorship is so harmful to society, so paternalistic, and leads to such a slippery slope, that we should shirk from it, no matter how bad pornography is. But this is, at best, a disingenuous argument. I know of no one who argues that censoring threats of violence is harmful, paternalistic, or a slippery slope. I know of no one who argues that censoring fraud is harmful, paternalistic, or a slippery slope (if I am wrong on either of these points, leave me a comment).

The pro-pornography argument critically hinges around negating the existence of the Patriarchy and the existence of the rape culture; they have to either posit that they do not exist or do not matter. This demonstrates that the case for pornography relies on willful ignorance.

I concede that if we bury our heads in the sand and simply posit that the Patriarchy does not exist and that the rape culture does not exist (or just ignore them), and assume gender equality (or even, in the case of MRAs, some imagined female domination), then the validity of freedom of speech to the issue of pornography might seem self-evident.

But this is not a particularly novel way to reason about hierarchies. People already do the same thing when promoting the “free market” while ignoring the profoundly distorting effect of corporations, when promoting “democracy” while ignoring the profoundly distorting effect of the power elite, or when promoting “human dignity” while ignoring the profoundly distorting effect of religious relativism. Assume equality and you are free to posit any “voluntary” arrangement you like, because you’re ignoring the pre-existing inequalities that make those arrangements evil.

Obviously if we actually were equal, most of the issues with pornography, such as capitalism, patriarchial beliefs, prostitution and consent issues, would simply not exist and pornography could be a medium for beautiful snowflakes to express their love or whatever else people think depictions of sexual activity could be like. I have no problem with that, but that’s not the world we live in. Capitalism, the Patriarchy, prostitution and consent issues are precisely what make pornography unjustified.

I just want to be clear that I don’t believe pornography cannot exist without capitalism. Pornography has existed for millenia, but this is a result of patriarchal beliefs, not just capitalism. Capitalism makes it worse, like it makes everything worse, but it is not the First Cause.

Child pornography is censored, and there is little open opposition to this. It’s interesting to note why this is so. In the United States, child pornography may be banned because of the harm inflicted on the children who are raped or abused for its production (New York v. Ferber, 1982). There is an obvious connection here: pornography is produced in dangerous conditions (as proven by the propaganda against demanding condoms on porn movie sets) and inflicts harm on real women. Furthermore, consent is no more possible in a pornographic context than in the case of child pornography, because such a context excludes prospective agreement as valid.

Furthermore, consider that there’s not much difference between pornography involving a 16 year old woman and an 18 year old woman. There is no magic barrier that gets crossed when one reaches adult age.

This is the dichotomy of adult and child and they are viewed as very separate, very distinct, so that there is a clearly perceived line between these stages, these ages, but in fact it is not a line. It is a bridge. It is a bridge that spans the in-between; that gap that connects the points in the lives of so many women who were prostituted first as children then as adults. I lived that bridge in my own prostitution life, when I was turning from a child into a woman, and I was used sexually for money on most of the days that made up my adolescence, as I was before in childhood and afterwards in early adulthood. And here is the crux of the matter: it was all the same nightmare to me.

So how is pornography involving adults any more ethical than pornography involving children? People get off on the abuse and vulnerability of children, and they get off on the abuse and vulnerability of females. Pedophiles rationalize watching the abuse of little children in the same way that other porn users rationalize watching the abuse of females (they were asking for it, they need a good fuck, I’m owed the porn that I want, they really want it). If there is any difference, it is purely because of the illegality of child porn, but to use this as proof that child porn is worse would be a circular argument.

Various feminist thinkers have put forward a freedom of speech argument against pornography called the Silencing Argument. Pornography attacks women’s free speech by making their statements about wanting or not wanting sex to be disregarded by porn users:

Pornography produces in its consumers beliefs that prevent them from recognizing women’s intentions to refuse sexual overtures. These might include beliefs that women are coy, that they don’t like to appear too sexually forward, and so on. In producing these beliefs, pornography causes the systematic illocutionary disablement of women.
Ishani Maitra, Silencing Speech

Even if we assume that pornography is protected speech (an argument which, to my knowledge, has not been made), there is no reason to believe that it should have primacy over women’s speech. Because of its abusive and objectifying contents, pornography is a form of intimidation and silencing against women.

We can see this by analogy. What if there was a whole industry of popular movies portraying black people getting beaten up, insulted and treated like means to white people’s ends? What if white teenagers went around reproducing this behavior against black people they found on the street? I don’t think it would be too hard to recognize such movies as hate speech and as a threat.

What about silencing? Any propaganda that aims to dehumanize a segment of the population necessarily entails silencing that segment. The reason for this is obvious: giving targeted persons the opportunity to be heard also makes it more likely that society in general will understand their plight and sympathize with it; at any rate, it is contrary to the demands of dehumanization.

I live in a country where if you film any act of humiliation or torture, and if the victim is a woman, the film is both entertainment and it is protected speech. Now that tells me something about what it means to be a woman citizen in this country, and the meaning of being second class.

When your rape is entertainment, your worthlessness is absolute. You have reached the nadir of social worthlessness. The civil impact of pornography on women is staggering. It keeps us socially silent, it keeps us socially compliant, it keeps us afraid in neighborhoods; and it creates a vast hopelessness for women, a vast despair.
Andrea Dworkin, Pornography Is A Civil Rights Issue

Here is one concrete example:

When I was sixteen years old I was raped by my boyfriend (who was twenty,) at the time who made pornography of that rape.

The pornography was then taken as a sign of my consent by the police when I tried to press charges and they proceeded to call me a “dirty lying whore”, a “trouble child” and proceeded to press charges against ME for “making a false statement”.

I do not bring this up as a typical example of silencing, or to evoke sympathy for the victim, but to show that this phenomenon does exist and that it can have powerful silencing effects (that it’s not a purely theoretical construct made up by feminists for the sake of argument).

Pro-prostitution propaganda, to use an example very similar to this topic, attempts to portray prostitution as normalized “sex work” performed by “happy hookers.” They are doing so with the explicit purpose of silencing the majority of prostitutes and ex-prostitutes who have to deal with the consequences of their “work” and their marginalization in public discourse. The organizations putting out this propaganda are usually led by “legal” pimps or madams (see also and also), and they are actively trying to silence ex-prostitutes.

My point in bringing up this example is to show that this phenomenon of silencing is not by far unique to pornography. Speech, along with oppressive rules, violence, and many other tactics, is often used by the privileged to try to force their inferiors in a hierarchy to shut up. The vast majority of pornography is made by men for the use of men, and harms women; this is perfectly in accord with the gender hierarchy. The “marketplace of ideas,” like any other form of anomie, favors the powerful.

As an aside, because I know someone will bring this up: yes, I do realize there are handmaidens who produce pornography as well, but this does not invalidate the point any more than the existence of handmaiden CEOs disproves the patriarchal nature of the power elite.

And yes, I also expect someone to bring up the beautiful, special unicorn of “feminist porn” and whether it should be banned as well. But there is no such thing as “feminist porn.” Pornography commodifies and objectifies females, while the goal of feminism is to eradicate gender, which is the source of the commodification and objectification of females.

I’ve already lambasted the “Feminist Porn Awards” for putting a “feminist” stamp of approval on what is just normal pornography. Such speech is not worth protecting simply because it fulfills some token standards of representation. The rules of the “Feminist Porn Awards” are not feminist in any way whatsoever:

In order to be considered for a Feminist Porn Award, the movie/short/website must meet at least two of the following criteria:

1) Women and/or traditionally marginalized people were involved in the direction, production and/or conception of the work.

The fact that handmaidens are also involved in the production of pornography does not make it “feminist” any more than conservative politician women make conservatism “feminist.” To argue otherwise entails the belief that anything women do is feminist, which means that “feminism” is not a movement or an ethical position, but simply a descriptive label. This is simply false.

2) The work depicts genuine pleasure, agency and desire for all performers, especially women and traditionally marginalized people.

There is no way for a viewer of pornography to know that a pornographic video “depicts genuine pleasure and desire for all performers” (“agency” is a nonsense concept, so there’s no point in including that). What we are talking about, after all, is acting; the job of an actor or actress is to portray fictional characters with fictional desires and emotions. One cannot take an actress’ own testimony as validation, either, because the actress is likely to be concerned with keeping her job and reputation, like any other worker who knows eir words might be made public.

The issue of this standard being feminist or not does not even enter the picture, because it is an unworkable standard to begin with. Anyone who claims otherwise is extremely naive.

3) The work expands the boundaries of sexual representation on film, challenges stereotypes and presents a vision that sets the content apart from most mainstream pornography. This may include depicting a diversity of desires, types of people, bodies, sexual practices, and/or an anti-racist or anti-oppression framework throughout the production.

Presenting the exploitation and objectification of females through a diversity of bodies, practices, or an anti-racist or anti-oppression framework, does not change the fact that it is a representation of the exploitation and objectification of females. The issues of fat acceptance, acceptance of various sex acts, acceptance of races, flatters liberal viewers and makes them more committed to liking and accepting such pornography. To everyone else, it clearly appears as what it really is: a smokescreen. Indeed, it is bizarre to think that the objectification of more types of people and bodies is a step forward, instead of a step backwards.

Now, I don’t have anything against women being involved in movies, against portraying genuine pleasure or desire, or against challenging stereotypes, quite the contrary. But none of these things make pornography “feminist.” “Feminist porn” is like a square circle, a purely theoretical entity because its very nature is self-contradictory. If you think you’ve seen “feminist porn,” it either wasn’t feminist or it wasn’t pornography.