Free Speech Law and the Pornography Debate. Lynn Mills Eckert
theory of discursive effects to pornography regulation. Brown, understood as a case about expression that produces discriminatory discursive effects, can and should help us understand and evaluate the claim that inegalitarian pornography harms women’s citizenship rights.
It is in the latter part of the book where the shift from a sociology-of-knowledge approach to an epistemic approach becomes relevant. Linda Martin Alcoff in her seminal work on epistemology, Real Knowing: New Visions of Coherence Theory, writes that, like Marx, she believes there shouldn’t be an absolute separation between how we actually justify our beliefs and the way in which we should justify them. The distance between epistemology and the sociology of knowledge on that view closes or should close. In terms of the book’s argument, the distance between how and why we regulate pornography in the zoning cases and the arguments rejected in Hudnut should close. In both the zoning approach to regulating pornography and the Hudnut case, law finds that pornography generates adverse secondary effects or harms, including those aimed specifically at women. Yet in one set of cases, the gender-based arguments concerning pornography are submerged in larger concerns about zoning to protect property, while in the other the gender-based concerns frame the entire case.[25] The former set passes constitutional muster while the latter case is struck down as legislation aimed at thought control.[26] The distance between how we do regulate pornography’s harm in the zoning cases and how we should regulate pornography as a civil rights matter in Hudnut should close. The sociology-of-knowledge approach helps us to recognize that gap, while epistemology in the way advanced in the preface helps us to close it.
Alcoff explains why we must maintain a separation between the sociology of knowledge and epistemology. She contends that epistemology shouldn’t simply be reduced to a sociology of knowledge approach. We need an epistemology that enables us to analyze and critique our actual ways of coming to know even as they reveal biases.[27] Only epistemology helps us to evaluate competing knowledge claims in ways that are defensible and based upon reason, even if that understanding of reason is problematized by power and desire. What the sociology of knowledge has taught is that actual operations concerning power in producing knowledge shouldn’t remain silently unanalyzed. Yet knowledge claims can’t simply be reduced to sociological concerns about power relations, desire, and the conservation of beliefs. Reason, truth, and objectivity matter if we are to remain committed to democratic ideals of justice and fairness and a constitutional form of government premised on public justification. Where we can point out that past knowledge claims are contradictory, distorted by power relations, or at odds with reality, we may revise them.
In that same spirit, my own analysis is no “view-from-nowhere.” The argument advanced here is just as fallible and embedded in a particular cultural horizon with hidden (and unhidden) prejudgments as the perspective embedded in free speech doctrine and the feminist debate about pornography regulation. The same critiques that I level at these various knowledge claims can and should be leveled at my own argument.
My position throughout the book is to remain committed to the principles of liberalism engrained in US constitutional law. This may sound like an odd claim given that I depend upon philosophical positions critical of the very ideas of truth, objectivity, and reason, which are so central to the liberal enlightenment tradition. Nonetheless, these philosophical critiques of liberalism throw into relief the provisional nature of truth and our inherent fallibility in accessing it. Problematizing these concepts gives us the hope of accounting for such biases and remaining humble in the face of proclaimed certainties while retaining truth, reason, and objectivity as criteria for assessing knowledge claims. At a minimum, even compromised understandings of reason and truth are better than the alternative: namely, the criteria of might makes right. In our system, might equates to the forces of capitalism, patriarchy, homophobia, and white supremacy rather than fairness, equality, and justice.[28] Those forces are particularly relevant in analyzing the place of pornography in maintaining inequality. Liberalism as a theory is supple enough to embrace critiques of reason while simultaneosly relying upon a more problematized and realistic understanding of reason for the operation of just law.
This commitment to liberal constitutional law as a means to address the inequalities of pornography separates my approach from someone like Catharine MacKinnon.[29] Liberal law, especially the egalitarian variety, can conceptually recognize and redress the harm from pornography. While MacKinnon and Dworkin used liberal law as a vehicle to regulate pornography in Hudnut, the approach failed. MacKinnon’s larger theoretical work critiques liberalism’s ability to address the roots of gender inequality. MacKinnon is not alone among feminists in rejecting the notion that liberalism can address the regulatory issues surrounding pornography. Carol Smart writes:
The aim of “fitting” feminist ideas on pornography into a legal framework that might be “workable” (in narrow legal terms) or politically “acceptable”, means that many of the subtle insights and complexities of feminist analysis are necessarily lost. The framework (whether civil or criminal) requires that we fit pornography, or the harm that pornography does, into existing categories of harms or wrongs. Hence, we are left with a focus on degrees of actual violence or the traditional (non-feminist) concern with degrees of explicitness which are the mainstay of obscenity laws.[30]
This book aims to explain how liberal legal categories are subject to rupture and change in ways that embrace these feminist insights. Not only can liberal law redress the harms from inegalitarian porn but it can also embrace a more realistic understanding of how speech actually operates. Speech, I will argue, is best understood through the theory of discursive effects rather than a simplistic libertarian notion. I assert that the philosophical assumptions underlying the categories within liberal free speech law can evolve in such a way to apply reasonable regulations on inegalitarian pornography. It can recognize different varieties of pornography while finding that some deserve protection while others require regulation. In short, liberalism can fully embrace the gender equality rationale as a basis to regulate inegalitarian pornography. The book is, in part, a road map as to how liberalism can do so.
Moreoever, liberal law can recognize and redress the gendered harms from pornography based upon its commitment to reason, which is also entailed in an epistemological approach. Where inconsistencies and contradictions nag, not just in constitutional law, but also in the pursuit of knowledge more generally, we must refine them. We cannot engage in such a refinement if all knowledge is reduced to sociology or ideology. Stephen Macedo in Liberal Virtues writes:
Where we have no good reasons for the distinctions and discriminations we draw, we have anomalies or inconsistencies calling, not for bland acceptance, but for further reflection and perhaps revision in our thinking.[31]
Reason, even a problematized version, one where truth is always provisional and interconnected to power and desire, holds out a hope that we may govern and, in this case, regulate not out of intolerance, puritanism, or pruience, but out of a commitment to equality, fairness, and dignity. Epistemology provides a method to help us separate pretextual harm-based arguments favoring pornography regulation from authentic ones. We cannot, however, currently assess the role of pornography in undermining women’s unequal citizenship rights without more closely examining the content-neutrality principle, the causal standard of harm, and the need for a new paradigm to understand speech and its effects.
Notes
1.
Nancy Fraser, Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (London: Polity Press, 2004). Linda Alcoff, Real Knowing: New Versions of the Coherence Theory (Ithaca, NY: Cornell Univ. Press, 2008). Steve Fuller, Social Epistemology (Bloomington: Indiana University Press, 2002). Sandra Harding, Science and Social Inequality: Feminist and Postcolonial Issues (University of Illinois Press, 2006). While this is not a debate about the intricacies of epistemology, the insights of these other scholars provide a fresh perspective on the problem of determining what pornography is, whether it harms, and whether to regulate.
2.
Nancy Fraser, “Pragmatism, Feminism, and the Linguistic Turn,” in Feminist Contentions: A Philosophical