Does the value of free speech mean that pornography should not be censored?
The issue of censorship is a complex one, which requires some clarification before any useful discussion can begin. To precisely define ‘pornography’ is no easy matter, but for the sake of this essay I will take it to mean “sexually orientated material of a graphic nature designed for recreation rather than education”. It is important to note that this refers only to legal acts between consenting adults – that any sort of abuse (including child abuse) would be covered by existing laws prohibiting the acts themselves, so need not be further considered here. Rather, we must ask whether acts which are acceptable when conducted in private, become criminal or immoral when publicised. Assuming the value of free speech applies by default, what must be considered is whether or not pornography causes sufficient harm to override this liberty.
An obvious objection to pornography is that many people find it offensive. Such appeals to community standards of taste or morality are typical of ‘conservative’ arguments. Yet this sort of complaint is precisely what free speech protects against. The aversion needs to be justified – its mere presence is no justification. One could feel offended by another practicing a religion different to their own, or at persons of a different race using the same public facilities as them. Distaste founded in intolerance is merely bigotry, and cannot justify restricting others’ freedom. Lord Justice Devlin tries to do so by arguing that if the community’s common values were not upheld, “society would disintegrate”, but while this undoubtedly holds true for many criminal laws, it seems rather implausible to apply it to pornography. To Mill, appealing to the preferences of others “is still only many people’s liking instead of one”.
Whilst being offended by others’ actions is clearly no reason to outlaw those actions, being offended by the consequences to oneself is a slightly different matter. One can sympathise with Mackinnon when she insists: “pornography should never be imposed on a viewer who does not choose… to be exposed to it”. It might be reasonable to place some restrictions on pornography, so that it is accessible to those who want it, but others are still free to avoid it. I would suggest however, that such legislation would be unnecessary, for anything which is sufficiently offensive to enough people, could generally be kept distant by the power of social stigmatisation. One would be unlikely to come across public displays of pornography in family-frequented areas, since the intense social disapproval which would otherwise result, could only serve to embarrass customers and disrupt business.
One way of overcoming the arbitrariness of the conservative objection is to appeal to ‘family values’, complaining that pornography fundamentally undermines these. Yet Simons argues that pornography is beneficial for providing “sex by proxy”, quoting Tynan’s example of a geographically separated couple, for whom pornography succeeds in “relieving tension without involving disloyalty”. Such an effect could conceivably strengthen the family unit.
A common ‘feminist’ argument for censorship claims that “pornography is an act of subordination”, degrading to women just in itself, rather than due to its consequences. A problem with such gender based objections, is that they clearly do not extend to gay porn. One would assume that both types are of identical moral character, and that any interpretation which contradicts this cannot be entirely complete. Perhaps they could generalise, by saying that pornography is ‘degrading to humanity’. But this is such an abstract and subjective matter, it runs into the same problems as the first conservative objection. Some may feel that it is degrading for students to work at a supermarket for minimum wage, yet it is surely their choice to do so. Similarly for pornography, the judgements of others cannot supplant the judgement of those involved.
It could be argued that pornography misrepresents reality and human nature, thus causing its consumers to have false beliefs. Langton argues that pornography “may simply leave no space for the refusal move in its depictions of sex… ‘Yes’ is one (form of consent). ‘No’ is just another”. Feminists commonly argue that such misrepresentations can cause sexual discrimination or even rape (though there is no conclusive evidence to support this). Another consequence may be that it restricts the free speech of women. Langton identifies a more subtle form of ‘silence’ called illocutionary disablement, where one says all the right words, but they fail to perform the intended illocutionary act. Consider The boy who cried ‘Wolf’: words are spoken, but are not listened to. Langton suggests a similar silencing of women is behind date rape; “something about her, something about the role she occupies, prevents her from voicing refusal”. The word ‘No’ may be said, but its meaning is lost. Whilst such an abstract problem may not fall under the typical scope of ‘free speech’, one might reasonably assert that the spirit of free speech would ideally defend people from such ‘silencing’. Whether pornography actually causes such silencing, however, is rather more doubtful.
Even if pornography was proven to adversely affect its consumers’ behaviour, the aspect of free speech protecting autonomy, would (if truly valued) still prevent any form of censorship. The ‘Millian principle’, argued by Scanlon, states that harm due to an act of expression causing people to have false beliefs, cannot justifiably be prevented by restricting the expression itself. The key behind his reasoning is that the causal contribution of the expression (pornography) is “superseded by the agent’s own judgement”. To prevent the harm, the state would have to prevent any individual from hearing the false beliefs (about women) advocated (by pornography) in the first place; in which case one’s right to judge for oneself is precluded. Autonomy has been lost because “the right to decide that certain views were false” has been ceded to the state, and individuals cannot hear alternative views advocated even if they wanted to.
Many arguments for censorship eventually hinge on the right of a select group of people to impose their moral beliefs or aesthetic preferences on others. A more practical approach is to claim that the consequences of pornography are too harmful for society to allow, or even that the harms themselves contradict free speech by preventing women from being ‘heard’. There is no conclusive evidence of such harms being caused by pornography, but even if there was, to prevent them by censoring pornography would nevertheless be a breach of free speech. If the harms were shown to be real, and serious enough, then this may well be something society would be willing to do. But the fact remains that the value of free speech does maintain that pornography not be censored.
Devon, P., ‘The Enforcement of Morals’ in Rosen, M. & Wolff, J. (eds.), Political Thought, New York, Oxford University Press, 1999.
Dines G., Jensen R. & Russo A., Pornography: the production and consumption of inequality, New York, Routledge, 1998.
Langton, R., ‘Pornography, Speech Acts, and Silence’
Mackinnon, C., ‘Only Words’ in Rosen, M. & Wolff, J. (eds.), Political Thought, New York, Oxford University Press, 1999.
McNair, B., Mediated Sex: Pornography & Postmodern Culture, London, Arnold, 1996.
Mill, J., On Liberty, London, Routledge, 1910.
Scanlon, T., ‘Free Expression and the Authority of the State’ in Rosen, M. & Wolff, J. (eds.), Political Thought, New York, Oxford University Press, 1999.
Simons, G., Pornography without Prejudice: a reply to objectors, London, Abelard-Schuman, 1972.
Wolff, J., An Introduction to Political Philosophy, Oxford, Oxford University Press, 1996.
 This definition is found in B. McNair, Mediated Sex: Pornography & Postmodern Culture, p.47. It is a relatively ‘neutral’ definition, which I consider to be a prerequisite for inferring any sort of objective conclusions. Many alternative definitions involve such emotive words as “dehumanising” or “degrading”, which present an initial bias before reasoned discussion has even begun.
 P. Devon, ‘The Enforcement of Morals’, p.139.
 J. Mill, On Liberty, p.8. It is interesting that Mill himself later says that “offences against decency” (which one could assume includes pornography) “may rightfully be prohibited” (p.146). This is in stark contradiction to his earlier arguments, as J. Wolff (An Introduction to Political Philosophy, p.140) points out, “Here Mill…seems to allow customary morality to override his adherence to the Liberty Principle”.
 C. Mackinnon, ‘Only Words’, p.153.
 G. Simons, Pornography without Prejudice: a reply to objectors, p.90.
 R. Langton, ‘Pornography, Speech Acts, and Silence’, p.339.
 Ibid., p.346. Note that Jensen’s analysis of pornographic novels (Dines, Jensen & Russo, Pornography: the production and consumption of inequality, p.90-91) provides the empirical evidence to support this claim: no female characters rejected sex from any man – though many resisted at first but were “overcome by lust” as the man began to force her.
 So concluded the (UK) Williams report, and the (US) Johnson commission suggested that it may (if anything) cause a slight decline in sexual crime – in Germany the incidence of rape decreased after pornography became more accessible, leading Kutchinsky to conclude that “these developments leave hardly any doubt that pornography does not cause rape” (McNair, p.62).
 Langton, pp.343-8.
 Langton, p.345.
 T. Scanlon, ‘Free Expression and the Authority of the State’, p.145.
 Ibid., p.147.
 from Photocopy R6554 in the University of Canterbury library. Other title is Free speech, chapter 33, but no further bibliographical information was available.