Thursday, March 21, 2013

Should pornography be considered "speech"? (Part Two)

(Part One)

This is the second part in my series looking at pornography and the free speech principle. The series is focusing on the arguments analysed in Andrew Koppelman’s article “Is Pornography “Speech”?”. In part one, we looked at Frederick Schauer’s argument. In this post, we will look at John Finnis’s one. Both authors suggest that pornography is not covered by the FSP.

A brief recap is in order first. Koppelman claims that both Schauer and Finnis develop their arguments within a common argument-pattern. I sketched out that argument-pattern in part one. It started with the basic free speech principle (FSP):

Free Speech Principle: (Some or all types of) speech ought to be free from government censorship and regulation

The FSP is a very common trope (well, more than that) in political debates. The idea that some (perhaps all) categories of speech must be protected from government interference is a powerful one, and a variety of arguments can be amassed in its favour.

The key move made by the likes of Schauer and Finnis is to claim that in order for speech to be covered by the FSP, it must do certain things. Specifically, it must contain ideas or engage the faculty of reason. Thus, both authors hold that the following Coverage Principle can be derived from the FSP:

Coverage Principle: The FSP only covers speech that communicates ideas and/or engages the faculty of reason.

It is this coverage principle that forms the basis of the common argument pattern, which runs as follows:

  • (1) The FSP only covers speech that communicates ideas and/or engages the faculty of reason. (Coverage Principle)
  • (2) Pornography neither communicates ideas nor engages the faculty of reason. (Factual claim)
  • (3) Therefore, pornography is not covered by the FSP.

In the remainder of this post we’ll look at how John Finnis defends this argument-pattern. It should perhaps be noted that the Finnis article which is the subject of discussion here dates from 1967 (LINK). I’m not sure if Finnis has changed his views on the matter since then, but I doubt they would have changed greatly given the general character of his beliefs on matters of sexual morality.

1. Finnis on Reason and Passion in Symbolic Communication
The first thing we need to do is to see how Finnis defends the key premises of the argument-pattern, starting with premise (1). As you will recall from the previous post, premise one only makes sense in light of the more general defence of the FSP. More precisely, premise (1) needs to be derived from the general defence of the FSP. It is only once we know why the defence of free speech is important that we can know what kinds of communications or artistic productions fall within the remit of the FSP.

So why does Finnis think free speech is important? I’m going purely by the representation of his views in Koppelman’s article, and according to that representation Finnis offers a fairly typical instrumentalist defence of the role of free speech in a democratic. Quoting from James Madison, Finnis comments that one of the main roles of government is to aim at some control over people’s passions. That is to say, to prevent them acting on a purely emotional basis; and to allow reason to rein in the excessive and deleterious manifestations of the passions.

Building upon this, Finnis claims that value of free speech lies in its ability to create independent rational (not emotional) critics of the government. Thus, any expressions that engage the faculty of reason, in preference to the emotions and passions, deserves protection from government interference. For it is those kinds of expressions we need in order to keep the peace and to keep the government honest.

Finnis thinks this allows him to derive the coverage principle because:

“…to the extent that expressions derive from the passion end of the reason-passion continuum, the rationale for that freedom [i.e. freedom of speech] disappears.

This comment might seem a little cryptic, but file it away in your mind for now, paying particular attention to its reference to the “reason-passion continuum”, because we’ll be coming back to it later.

One thing that is clear from Finnis’s discussion is that he does not think this defence of the FSP only covers so-called “political speech”. On the contrary, Finnis thinks there is a robust and defensible space for purely artistic forms of expression under the FSP. He just argues that art always expresses emotions in a detached, reason-enriching way. In other words, artistic expression doesn’t merely provoke or enrage; it symbolically represents emotions thereby enabling us to critically reflect upon them. This view of artistic expression is what allows him to defend premise (1) without falling into the trap of excluding all non-political forms of speech from the FSP.

Granting this, we proceed to consider premise (2). As you might imagine, Finnis’s claim is that pornography falls outside the scope of the FSP because its “expressions” engage the passions, without providing space for the detached critical reflection in other forms of art. Perhaps surprisingly, Finnis thinks that erotic feelings can legitimately be symbolised in works of art. He merely argues that in pornography the feelings themselves swamp or overwhelm their symbolisation.

Finnis envisions the stereotypical consumer of pornography as being one who desires a state of emotional arousal (most commonly orgasm) to the exclusion of any high-level aesthetic reflection. Somewhat amusingly, Koppelman gives this stereotypical consumer a name and highlights the role he (or she!) plays in the argument:

Grimly Purposive Masturbator (GPM): The stereotypical consumer of pornography is one who wants to achieve orgasm and does not care how he achieves it. The pornography is a mere aid to their sexual satisfaction.

I must confess to being a little puzzled as to how discussion of the GPM helps us to defend premise (2). But, being charitable, I guess the claim could be that it is the fact that the GPM is the typical consumer of pornography that provides evidence for premise (2). Or, it could be that it is the fact that the producer of pornography has the GPM in mind when he creates pornography that provides evidence for premise (2). Bringing these two observations together we can say that: if the GPM is both the intended user and the typical user we have good evidence to support the claim that pornography does not engage the faculty of reason.

2. Evaluating Finnis’s Argument
So what should we make of all this? Let’s look at the defence of both premises in turn. The first thing I would say is that the instrumentalist, Madisonian defence of the FSP isn’t entirely persuasive to me. While speech definitely has a role to play in ensuring an intelligent and critical electorate, I think it has other, intrinsic and instrumental benefits too.

For starters, it is the medium through which knowledge and culture are shared, and through which important actions are performed. Not all of these things are primarily reason-based, but they are valuable nonetheless. Separate from this, I see no reason to think that certain kinds of emotions should not be valued and protected by society. Indeed, and on this very point, Andrew Altman has argued that there might be a “right to be turned on”, a right that could be protected through pornographic speech.

In addition to this, I think one has to bear in mind Schauer’s sceptical defence of the FSP from part one. As you’ll recall, one classic defence of the FSP is that the failure of governments to exercise powers of censorship in a sensible and non-abusive manner in the past gives us good reason not to hand such powers over to them again. If we accept this rationale for the FSP, we should be pretty sceptical about the government’s ability to reliably distinguish the materials that primarily engage the passions from those that primarily engage reason. Thus, the underlying defence of the FSP seems dubious to me.

But even if I accepted the Madisonian line, thought that only speech which affected the capacity for reason could be covered by the FSP, and that the government could reliably distinguish such materials, I would be pretty sceptical of Finnis’s argument. The problem is that I simply don’t buy his notion of a reason-passion continuum. To me, this word “continuum” creates the impression that there can be forms of communication that fail to impact upon the emotions, and vice versa. This doesn’t seem to be the case to me. Reason and passion are intimately bound together. Every interpretation and every act of attention involves some input from the passions.

This, of course, brings us to premise (2) and the claim that pornographic speech overwhelms the faculty of reason. This also seems pretty weak to me. In line with what I just said, I think every form of expression can engage the faculty of reason. Certainly, there’s no reason to think that pornography cannot do this. This is something that several feminist critics of pornography seem to accept. As discussed previously on this blog, MacKinnon (among others) argues that pornography involves some extremely powerful, and politically important, symbolic encoding. Specifically, it encodes the permissibility conditions for heterosexual relations. The very fact that these kinds of arguments can be made illustrates that aesthetic reflection about the nature and value of the symbolism in pornography is possible. This runs contrary to Finnis’s claim. Furthermore, as Koppelman point out, many great works of art play to and encourage erotic responses (he mentions the play Equus as an example). But this doesn’t preclude aesthetic reflection.

These two responses to the defence of premise (2) highlight perhaps the main flaw in the whole argument. Namely, that the focus is misplaced. The fact the likely consumer of pornography (the GPM), or the likely producer of pornography, have certain intentions and goals in mind, does not support the claim that pornography cannot engage the faculty of reason. If there is one lesson from the arts and humanities, it is that all human artifacts are fit objects for deep aesthetic reflection. Pornography is no different in this regard.

3. Conclusion
To sum up, neither Finnis nor Schauer’s arguments are persuasive. In the first instance, their defences of the FSP are either dubious or fail to provide support for the coverage principle. In the second instance, their claims that pornography fails to communicate ideas or engage the faculty of reason are weak. Pornography can do both of these things, irrespective of the characteristics of the typical user.

None of this, however, should be taken to imply that pornography is a valuable cultural product, worthy of respect and protection by our laws. There may be other reasons to object to or restrict pornographic speech. It’s just that the claim that it is not “speech” or does not fall under the auspices of the FSP is not one of them.

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