Pornography and Speech Acts (Part One)

Pornography is typically viewed as a form of legally protected speech. But could it, as a form as speech, actually constitute a harmful act? Before even attempting to answer that question a brief divagation is required.

If you’ve ever studied feminist legal theory (and really, who hasn’t?), the name of Catherine MacKinnon should be familiar to you. She is one of the so-called “radical” feminists, famous for reshaping sexual harassment laws, developing a Marxist theory of feminism, and her role in highlighting the use forced impregnation in genocide. She is also infamous for her campaign against pornography in the 1980s and 1990s. A campaign waged alongside fellow radical feminist Andrea Dworkin.

As part of this campaign, MacKinnon tried to argue that pornography should not be legally protected speech. On the contrary, pornography, as a form of speech, was itself harmful and discriminatory to women. The argument is most clearly presented in her 1993 book Only Words. In it, MacKinnon essentially argues that the “speaking” of pornography is itself harmful and discriminatory, not merely something that contributes to, causes or encourages harm and discrimination (though it may do those things too).

MacKinnon’s argument is a legal/political one, not a true philosophical one, and her work tends to provoke negative reactions due to its often sensationalistic claims, and turgid academic style. I have certainly never enjoyed reading anything she has written. But other philosophers have attempted to develop her argument with greater sophistication and philosophical clarity. I want to look at some of those attempts here.

In doing so, I will be guided by Mary Kate McGowan’s article “Conversational Exercitives and the Force of Pornography”. In the article, McGowan considers Rae Langton’s version of MacKinnon’s argument, one that takes advantage of the tools of speech act theory. Though ultimately finding Langton’s argument lacking, McGowan uses it as a springboard for developing her own argument.

I want to take you through the stages of McGowan’s analysis in this series of posts. I do so for two reasons. First, the creative use of speech act theory in this debate fascinates me as I’m interested in the use of speech act theory in legal philosophy. Second, the ethics of pornography is a controversial topic, one that’s always sure to provoke debate.

In the remainder of this post, I will do three things. First, I’ll give a brief primer on speech act theory, giving particular attention to the concept of an Austinian exercitive. Second, I’ll outline and explain Langton’s version of MacKinnon’s argument. And third, I’ll present McGowan’s critique of that argument.


1. Speech Acts and Austinian Exercitives
The basic presumption of speech act theory is that words and sentences don’t merely report how the world is, they also do things to the world. So, for example, if I say “I accept your offer” to someone offering me a car for sale, I thereby create a legally binding contract. My utterance has done something: it has changed the nature of the relationship between me and the person offering the car for sale. How does this happen?

In his classic discussion, How to do Things with Words, J.L. Austin helped to answer this question by distinguishing between the three forces of an utterance: (i) the locutionary force; (ii) the illocutionary force; and (iii) the perlocutionary force. The locutionary force is simply the proposition asserted. The illocutionary force is the action constituted by the utterance. And the perlocutionary force is the effect that the utterance actually has on its audience. To give an example, if I say to my friend “I promise to pick you up at the train station”, then the proposition asserted is that I promise to pick them up, the action constituted by the utterance is that of promising, and the effect could be any number of things, e.g. that they believe me, or that they are gratified/reassured.

For our purpose, it is the illocutionary force that is key. For if it is true that utterances are themselves a type of action, MacKinnon’s argument has a foundation on which to build. Consider an example. Suppose I hire a hitman to kill my wife, saying to him “I hereby hire you to kill my wife”. The illocutionary force of that utterance is a promise to pay him in return for killing my wife. This is itself immoral and illegal: it is immoral/illegal to promise to pay someone to do something like this. That is true irrespective of the actual causal effect of my utterance. The hitman may or may not kill my wife. That would not make my speech act any more or less immoral. This is the kind of claim MacKinnon is trying to make about pornography.

But the foundation is not enough. We need a plausible reason to think that the pornographic speech act is immoral. This is where Lanton’s argument comes in. She claims that pornography is an exercitive speech act and that as an exercitive speech act it constitutes a form of harm to and discrimination against women. This raises the question: what the heck is an exercitive speech act?

An exercitive is a particular type of utterance which has the effect of setting out the permissibility conditions on actions in a particular kind of environment. It is almost impossible to understand this idea in the abstract, so an example is in order. Imagine that I am the president of a private club. During one of the club meetings, I declare that “smoking shall not be permitted on club premises any more”. I have just performed an exercitive speech act. I have made it the case that smoking is no longer permitted in the club. (Call these “Austinian exercitives” to differentiate them from another type of exercitive that will introduced later in the discussion).

Note, however, that things are not that straightforward. In order for an exercitive speech act to be successfully performed, a number of conditions must be satisfied. First, the utterance must somehow express the exercitive content. It need not expressly say that “X is no longer permitted”, but it needs to communicate the message that X is no longer permitted. Thus, I could say “No more smoking” or “I am against smoking” and this may communicate the same exercitive content, without expressly saying that “Smoking is no longer permitted”.

Second, in order to successfully perform an exercitive, the speaker must have the authority to determine what is permissible and impermissible. That is why my being president of the club is important in the example just given. If I were not president, I would not have the authority to render smoking impermissible. Official title is not always needed for authority. Parents, for example, have the authority to set permissibility conditions for their children, without needing officially recognised authority.

In addition to these success conditions, a number of conditions must be met in order to prevent the exercitive from being defective. This success/defectiveness distinction is common in speech act theory. If I say “There is a pink unicorn in my garden”, then I have successfully performed an assertive speech act. But the act is defective because the assertion is not true. Likewise, an exercitive may be defective if, for example, no one understood what the speaker was trying to communicate, or if it never has the intended effect.

We’ll return to some of these ideas later when looking at McGowan’s critique of Langton. For now, let’s move on and see exactly what Langton’s argument is.


2. Langton’s Speech Act argument against Pornography
Langton’s argument — as filtered through the lens of McGowan’s article — is that pornography unjustly subordinates and silences women. In reality then, Langton is presenting two separate arguments, the first defending the subordination conclusion, and the second defending the silencing conclusion. Furthermore, she divides each of the arguments into two phases. In the first phase, she argues that pornography is an exercitive speech act i.e. one that enacts a set of permissibility conditions in a particular domain. In the second phase, she argues that these permissibility conditions have the effect of silencing or subordinating women.

Let’s look at the subordination argument first. As McGowan describes it, the argument runs like this:

• (1) Pornographic “speech” enacts the permissibility conditions for the (heterosexual) sociosexual arena. 

• (2) These permissibility conditions: (a) unfairly rank women as having inferior worth; (b) legitimate discriminatory treatment towards women; and c) deprive women of important powers. 

• (3) Anything that does (a) - (c) unfairly subordinates women. 

• (4) Therefore, pornography unfairly subordinates women.

The first premise is contentious. Indeed, it is what McGowan explicitly criticises in the remainder of her article. But something can be said in its favour. The idea is that heterosexual pornographic material, through its depiction of male-female or female-female sexual contact, stipulates what kind of conduct is appropriate in heterosexual sexual relationships. In other words, it is effectively saying “This is how things are to be done! No other way is permissible”. It is thus an Austinian exercitive, covering the permissibility conditions within the heterosexual sociosexual arena.

The second premise then takes up the baton by saying that the actual content of those permissibility conditions is such that women are ranked as inferior, discriminated against, and deprived of important powers. The idea here is that the actual depiction of sexual relationships in heterosexual pornography is such that it is deemed permissible to treat women inferiorly or to discriminate against them. This too is contentious claim, depending as it does on an interpretation of what heterosexual pornographic materials (typically) “say”. No doubt many would dispute the interpretation, but I won’t be getting into that issue here.

The third premise is simply a general principle classifying certain kinds of conduct as subordinative. I don’t see anything particularly contentious about this, although a word or two must be said about the use of “unfairly” in this principle. It is possible that we can fairly subordinate or discriminate certain people, psychopaths or criminals for example. Certain conditions are met in these cases that renders the unfair treatment acceptable. But I think everyone would agree that those conditions could not be met in the case of women. If that’s right, and if premises (1) and (2) are acceptable, then the argument as a whole goes through.

What about the silencing argument? It follows the same general pattern as the subordination argument, but is rather more complex. Instead of focusing directly on permissibility conditions for the treatment of women, it claims that pornography is such that it enacts the success conditions for particular kinds of speech. These conditions work in such a way that they prevent women from saying the kinds of things they would like to say.

To set out the argument in full:

• (5) Pornographic “speech” sets out the success conditions for certain kinds of speech act (“success conditions” being a type of permissibility condition specifically related to speech, they determine what it is permissible or possible for certain people to say). 

• (6) These success conditions stipulate that there are certain kinds of speech act that women cannot perform. 

• (7) Women ought to be able to perform these speech acts. 

• (8) Therefore, pornography unjustly silences women.

This argument is a lot trickier to explain, but its starting premise (5) is broadly equivalent to that found in the subordination argument. The idea, once again, is that the depiction of women in pornography enacts a set of permissibility conditions concerning what they can say and do.

The specific claim, in premise (6), is that these permissibility conditions are such that women are not allowed to perform some kinds of speech act. The classic example, and one used by Langton, is that of saying “no” to certain types of sexual advance. In at least some pornographic material, women are depicted in such a way that it is deemed impermissible (perhaps impossible) for them to deny these advances. Or so the argument goes. Again, this is highly contentious, depending on an interpretation of what pornography does or does not say. But if one can get over that contentiousness, the remainder of the argument should go through.

The net result is that MacKinnon’s overarching conclusion — that pornography unjustly silences and subordinates women — is defended. This is depicted in the diagram below.

3. McGowan’s Critique
Is any of this remotely persuasive? As I say, the second premise of each argument is highly contentious. But since there is such a huge volume of pornographic material out there one could probably make a good case that at least some (maybe a lot) of it depicts women in such a manner that they are deemed inferior or incapable of denying sexual advances. The more philosophically interesting premise, and the one McGowan focuses on, is the first: is it really true to say that pornographic speech performs an Austinian exercitive?

An initial worry would be that pornography is not really of form of speech, or rather not classifiable as an utterance. This can probably dismissed on both pragmatic and conceptual grounds. Pragmatically, one can simply argue that pornography is legally classified as a form of speech by many of its advocates. This allows them to avail of free speech exemptions from regulation. Langton and MacKinnon are merely playing on the advocates territory in this regard. Conceptually, one can argue that it does make sense to view certain kinds of artistic or cinematographic output as “speech”, something that is “spoken” by its producers and distributors to an audience or group of listeners.

A more serious set of worries is that pornography, even though it is a type of speech, cannot be exercitive in nature. This is the argument that McGowan pushes. To make it, she returns to the notion of success and defectiveness conditions in the analysis of speech acts. Let’s use the earlier example of I, as club president, banning smoking on club property. In this example, I was clearly performing an exercitive speech act. But this was only because: (a) I directly or indirectly intended for my speech to be exercitive in nature; (b) the semantic content of my utterance conveyed my intended meaning; c) the relevant audience would have been aware that this was my intention; and (d) I had the requisite authority to perform the exercitive (I was club president after all).

The problem is that these conditions are not typically met in the case of pornography. Maybe some producers of pornography do intend to silence and subordinate women, but many may not. Even if they did have that intention, the consumers of pornography would probably not recognise it. This will most often be caused by the fact that the semantic content of pornography will be exceptionally opaque — not an efficient means to convey the intended exercitive. Finally, and perhaps most fatally, producers and distributors of pornography do not have the authority to enact permissibility conditions concerning heterosexual behaviour or women’s speech acts. And if someone thinks that they do, they are severely mistaken (note: this leaves open that possibility that pornography may indirectly or subconsciously have the effects identified by MacKinnon. This, however, transforms the argument into a purely causal one, not one based on the intrinsic flaws in the pornographic speech act)

Although a failure to meet one or two of these conditions might be tolerable, and might still result in an exercitive speech act being performed, the failure to meet all of them would be fatal to Langton’s analysis. That gives us the following:

• (10) In order to successfully and non-defectively perform an Austinian exercitive, a series of conditions must be met: (i) the speaker must intend (directly or indirectly) for their utterance to have the exercitive effect; (ii) the semantic content of the utterance must convey that intention; (iii) the audience must be able to appreciate the exercitive intention; and (iv) the speaker must have the requisite authority. 

• (11) In most cases, these conditions are not met in the case of pornographic speech. 

• (12) Therefore, it is unlikely that pornographic speech enacts the permissibility conditions for heterosexual behaviour or for the kinds of speech act women can perform.

This has been added to the argument diagram below.

Where does that leave us? As McGowan sees it, the flaw in Langton’s argument is its reliance on the Austinian conception of the exercitive. She thinks it is possible for the argument to made with an alternative conception of the exercitive, something she calls the “conversational exercitive”. This would avoid the problems just highlighted, but may have some problems of its own. We’ll consider McGowan’s proposal in part two.