Free Speech Law and the Pornography Debate. Lynn Mills Eckert

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      British Library Cataloguing in Publication Information Available

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      Library of Congress Control Number: 2020940433

      ISBN 978-1-4985-7260-6 (cloth : alk. paper)

      ISBN 978-1-4985-7261-3 (electronic)

      For my father, in loving memory

      Introduction

      At the broadest level, this book is about the epistemology of law while at the narrowest vantage it is concerned with the possibility of placing gender-based regulations on inegalitarian pornography. In making a case that epistemology can help us find our way through the highly contentious debate about regulating pornography, I examine free speech categories, concepts, and rules. Everything from how to define pornography, to whether pornography constitutes speech or a practice, to whether it harms concerns epistemology. By examining the highly contested legal debate about the regulation of pornography through an epistemic lens, the book project hopes to reveal insights into competing claims about the proper role of speech in our society, pornography’s harm, the relationship between speech and equality, and whether law should regulate and, if so, upon what grounds.

      Epistemology: Defining a Particular Understanding

      In examining the legal debate about pornography from an epistemic lens, the book adopts a particular approach to epistemology, one that both problematizes and retains notions of truth and objectivity while recognizing that desire and power play a role in producing knowledge.^[1] It recognizes the linguistic turn in philosophy as well as where “an epochal shift in philosophy and social theory [has taken place] from an [traditional] epistemological problematic, in which mind is conceived as reflecting or mirroring reality, to a discursive problematic, in which culturally constructed social meanings are accorded density and weight.^[2] Relying on studies and measures of harm alone will not end the debate about porn’s regulation. The empirical variables rest upon the social construction of meaning and the way that construction informs the epistemological understanding of the problem. The discursive problematic ranges from the social construction of sexuality, masculinity, femininity, freedom of speech, harm, and equality. Such an understanding of epistemology, which in colloquial terms means the study of “how we know what we know,” borrows from the criticisms of the sociology of knowledge, feminist epistemology, continental theory’s understanding of meaning and interpretation, critical theory, and poststructuralism.^[3] In varying degrees, those criticisms have demonstrated that none of us have a God’s-eye-view-from-nowhere and that the ability of humans to access the unfiltered truth isn’t possible. In short, we are fallible, bringing our own cultural, historical, and social biases or prejudgments with us when attempting to validate or invalidate truth claims. Our ability to establish truth upon a solid metaphysical foundation isn’t possible.^[4] These insights should influence legal discussions about porn’s meaning, the categories law deploys, whether it harms, standards of evidence and appropriate regulations, if any. Truth matters, but it may be a moving target depending on context and power. Moreover, law may have to respond to the idea that we have no access to enduring truths, requiring law to accommodate changes as material conditions and context changes.^[5]

      Despite conceding that truth has no solid metaphysical foundation from which to tell us definitively porn’s meaning and its harms, the book, nonetheless, seeks to retain a concept of truth and to provisionally discover a “truth” about pornography in its current historical form. Those committed to social justice must rely upon truth, even a problematized version of truth, to fight oppression.^[6] Without truth, claims about discrimination rest upon the whims of those in power rather than on the objective ability to demonstrate harm. At the same time, Western culture has used claims to “truth” and “objectivity” to brutalize and oppress minority groups.^[7] A social epistemology grounded in coherentism and attentive to the relationship between truth and power should provide insight into how and why false claims of objectivity prevailed at particular moments in history while recognizing the need to recoup and remedy those failings that brought us far short of authentic “truth.” For example, such an understanding of epistemology should help to navigate the competing claims within the debate about pornography regarding which group has more power—pornographers or feminists. It should help us reconsider how to conceptualize and measure harm claims about pornography. It should help us define pornography as a practice, even though that practice isn’t static.

      My hope throughout this project is that the very same heterogenous combination of theories that led philosophers such as Linda Alcoff, Nancy Fraser, and Satya Mohanty, to name just a few, to analyze the failings of more traditional, foundationalist accounts of epistemology will be applied to free speech law and the pornography debate. Through the application of feminist epistemologies, continental philosophy, poststructuralism, critical theory, egalitarian liberalism, the sociology of knowledge, and phenomenology, I will attempt to place the debate about pornography’s regulation on a different terrain. This is no easy feat. Many of the underlying presumptions of these theories are at odds. Yet the argument about the utilization of competing theories relies upon far more auspicious scholars who have already done the heavy intellectual lifting in determining where these theories can complement one another. I attempt to apply those theories to First Amendment law and the pornography debate.

      Such an approach to epistemology, as I understand it, entails several different assumptions worth highlighting and scrutinizing. The first is that knowledge and power are interconnected, which is to say that we must analyze power as an influence in determining knowledge.^[8] To be clear, power is not reducible to knowledge, but it plays an integral and analyzable role involving such considerations as who sets criteria for knowledge claims, to whose account is plausible, and to which groups receive resources enabling the very production of knowledge.^[9] Law is a site of knowledge production where legal precedents validate a specialized kind of truth. Knowers are always already socially, historically, and culturally embedded, and that embeddedness brings with it certain assumptions, biases, and prejudgements from which we are not free. Whose insights are predominately embedded in the law? Which narrative is stronger in shaping our understanding of modern free speech doctrine? In the conversation about pornography and its effects, which group deploys power to shape discursive understandings and legal outcomes? As Margaret Attwood remarks about the porn industry’s claims to powerlessessness, for example, “it is hard to feel that porn is the excluded other when it is so prevalent and so present