Pornography Censorship

Definition: Explicit portrayal of human sexual activity, designed to produce sexual arousal

Significance: Attempts to censor sexually explicit materials have prompted extensive debate as to whether pornography constitutes expression that should be protected

Significant government interest in regulating and suppressing sexually explicit materials emerged at the beginning of the nineteenth century, when the mass production and distribution of sexually explicit writings and images first became economically feasible. Much of the subsequent debate concerning the legitimacy of government censorship of pornography has focused upon two issues. One is that of determining whether the widespread availability of pornography causes harm significant enough to warrant the abridgment of freedom involved in its censorship. The other is that of attempting to formulate a definition of pornography. Although these issues allow distinct formulation, inquiry into them is by no means unrelated; for decisions as to the harm inflicted by a certain phenomenon and proposals to regulate that phenomenon depend in large part upon the possibility of establishing fairly specific criteria for identifying the phenomenon in question.

Defining Pornography

U.S. Supreme Court justice Potter Stewart, whose legally unhelpful “I know it when I see it” (in his opinion on Jacobellis v. Ohio, 1964) became famous. The statement illustrates two important points concerning the meaning of the word “pornography.” The first part of Stewart’s statement, the claim to be able to “know” pornography, points to the belief shared by many that the term refers to a phenomenon that can be readily identified with a high degree of reliability in most cases. The second part of Stewart’s statement reflects the fact that it is extremely difficult to provide a precise definition for a phenomenon that occurs in many different mediums, in many different contexts, and expresses many different themes. A further complication concerning efforts to formulate a definition for “pornography” is that the term has both descriptive and evaluative content. The core of its descriptive content is found in the notion of a “sexually explicit portrayal intended to arouse sexually.” Its evaluative content is found in its pejorative force, its tendency to cast a shadow of moral condemnation upon that to which it is applied. The problem that the pejorative nature of “pornography” poses for attempts to define the term is that any descriptive definition—such as Stewart’s—is likely to be found wanting insofar as its descriptive content could be applied to material that a majority find in no way morally objectionable.

Given the difficulty of formulating a definition of “pornography,” jurists have generally been unwilling to establish a set of criteria for its identification. Instead, the jurisprudential term of choice in dealing with the censorship of sexually explicit material has been “obscenity,” a term that courts have been willing to define. The first attempt to do so is widely thought to have occurred in Great Britain in 1868 when Chief Justice Alexander Cockburn characterized as obscene material that would tend to “deprave and corrupt those whose minds are open to such immoral influences.” This, the so-called Hicklin test, was adopted into U.S. law in 1879 (in United States v. Bennett), but has been subjected to extensive revision and modification in subsequent cases. Accordingly, more recent characterizations of the “obscene”—such as that offered in Miller v. California (1973)—differ significantly from the Hicklin test; nonetheless, the concept of obscenity continues to occupy a place of special prominence in legal battles over the censorship of pornography.

While the reluctance of courts to forge a definition of pornography is not surprising, it is somewhat surprising that jurists have found “obscenity” a more promising candidate for definition. “Obscenity” no less than “pornography” has pejorative force and thus would seem open to the same problems besetting attempts to define “pornography.” Some light may be shed upon the jurisprudentially preferred status of “obscenity” by attending to the fact that “obscenity,” unlike “pornography,” does not have a readily identifiable descriptive core. This is significant insofar as the core of descriptive meaning central to pornography might allow for the uncritical application of the term to a variety of instances that really ought to be handled with a sensitivity to the complexities of the individual case. Lacking a dominant descriptive core, the term “obscenity” might be deemed less prone to such abuse. Its preferred status in legal decisions might, therefore, be an attempt to guard against a mechanical application of censorship guidelines that would uncritically erode the right to free speech.

Pornography and Free Speech

Despite the difficulties involved in formulating a fully satisfactory definition of pornography, it is generally agreed that pornography involves depictions or descriptions of a sexually explicit nature. Pornography is thus traditionally viewed as a form of expression or speech. Its censorship is, consequently, widely held to be a limitation of the right to free speech, a right commonly viewed as essential to the health of a democratic society. The mere fact, however, that the censorship of pornography does constitute a limitation of the right to free speech is not typically taken as absolutely conclusive grounds for maintaining that it should not be censored, for it is widely held that the right to free speech is not absolute. The First Amendment to the U.S. Constitution, for example, has been consistently understood by the U.S. Supreme Court as not protecting certain forms of injurious speech such as the “lewd and obscene, the profane, the libelous, and the insulting or ’fighting’ words” (Chaplinsky v. New Hampshire, 1942). Thus it is that much of the debate about the legitimacy of government regulation of pornography has focused upon the issue of whether it constitutes speech that is sufficiently harmful to justify an abridgment of the civil right of free speech.

Pornography and Harm

Harms that have been alleged to be the fruits of pornography include but are not limited to the following: physical, psychological, moral, spiritual, social, and financial. Advocates of censorship have, for instance, variously argued that the widespread availability of pornography within a society can lead to a heightened frequency of sex crimes such as rape and child abuse (physical and psychological harms), the corruption of character (moral harm), the need for medical and psychological treatment (financial harms), an erroneous conception of human fulfillment (moral, psychological, and spiritual harms), and the erosion of the family unit (social harm). In evaluating the claim that pornography is injurious, it is therefore helpful to keep in mind that the harms alleged to be produced by pornography come in guises other than the merely physical. It is also helpful to think in terms of three distinct stages at which pornography is alleged to inflict harm: production, consumption, and pornographically induced action.

Production and Harm

The activity of producing pornography has been claimed to inflict harm upon those engaged in its production. This is most obvious in the case of child pornography, which involves the immediate and direct violation of the rights of the juvenile models and actors used to produce it. Prohibition of child pornography is, accordingly, one of the least controversial cases of legitimate government censorship; however, it is worth noting that the generally accepted legitimacy of outlawing child pornography is based not so much on the fact that the depictions involved therein are reprehensible; rather, it is based on the fact that the acts performed in the production of such pornography constitute serious breaches of criminal statutes. Illustrative in this regard was the U.S. Supreme Court’s rationale for upholding the conviction of an Ohio man for possession of child pornography in Osborne v. Ohio (1990). The state’s legislation was permissible, according to the court, insofar as its intent was not to control a person’s private thoughts; rather, it was to protect children who might be used in the production of child pornography by pursuing measures to eradicate the demand for such materials.

Consumption and Harm

It has also been alleged that pornography, especially of the violent and degrading varieties, inflicts psychological damage and moral corruption upon those who consume it. These harms are deemed significant enough by some to warrant paternalistic censorship, censorship that would prohibit certain forms of pornography in order to prevent individuals from making choices by which they are likely to harm themselves. Just as a government may take a paternalistic interest in the physical welfare of citizens by legally mandating the use of helmets by motorcycle operators, so too a government might prohibit those things and activities that have a clear tendency to damage the moral character and psychological health of its citizens.

Setting aside the case of child pornography, in which society’s concern is usually for the welfare of the child models, not the adult consumer, it is worth noting that the harms alleged to befall the producers and consumers of pornography have generally been deemed insufficient to support legislation that would ban pornography. One reason for this is that the types of harms most frequently claimed to befall these groups are either moral or psychological, and it is very difficult to formulate any precise way of establishing the nature and extent of such harms. Moreover, while democratic governments have shown some willingness to limit behavior for paternalistic reasons, they have generally been unwilling to regulate speech on similarly paternalistic grounds. For these reasons, many of those who advocate censorship do so on the nonpaternalistic ground that pornography is an indirect source of harms insofar as it disposes those who consume it to sexually victimize members of society.

Pornographically Induced Action and Harm

Dramatic illustration of pornography’s alleged capacity to inflict indirect harm is found in the testimony of some sex offenders, who report that the consumption of violent pornography played an important role in their pursuit of criminally deviant behavior. One such individual—a man who confessed to the sexual molestation and murder of five boys—gave anonymous testimony to the U.S. Attorney General’s Commission on Pornography (1985–1986) that pornography had caused him to lose “all sense of decency and respect for humanity and life.”

The advantage of this approach to evaluating the regulation of pornography is that many of the alleged harms are criminal violations which are routinely tracked by governments and for which there is ample statistical data. The availability of data on crimes with a sexual component has not diminished the controversy concerning the extent to which pornography contributes to the commission of such crimes. There are at least two reasons for this. The first is that the statistical data is mixed. There are studies that indicate a direct relation between the consumption of sexually explicit materials and sex crimes; however, there are also studies which show an absence of a direct relation and sometimes even an inverse relation between the two. Against advocates of censorship, the last of these correlations has been used to defend what is sometimes called the “safety valve” theory of pornographic consumption. Proponents of this theory maintain that, far from inducing criminally deviant behavior, pornography may actually reduce it, since those predisposed to such behavior can use pornography as a victimless outlet for their deviant urges.

A second reason that the availability of data on crime rates has not resolved the controversy concerning the connection between pornography and crimes of a sexual nature is the fact that a statistical correlation does not necessarily correspond to a causal connection. Even if there were a clear statistical correlation, either positive or negative, between the availability of pornographic materials and criminally deviant behavior, this would not in itself establish that there was a causal relation between the two. That a substantial proportion of sex offenders are also consumers of pornography may only reveal that the consumption of pornographic materials and the commission of sex crimes are independently caused by some third factor, such as preexisting urges of a deviant nature. Conversely, a decrease in sex crimes following an increase in the availability of pornography may have nothing to do with a safety valve and may only reflect an increase in the difficulty of convicting sex offenders in a society that has become less restrictive in its laws regarding pornographic materials.

It is also worth emphasizing that even if a compelling statistical case could be made to show that pornography does lead to a heightened incidence of crimes of a sexual nature, it does not follow that a society will or should automatically ban the offending material. On this point, it is instructive to reflect on the fact that the United States government repealed the federally mandated fifty-five mile per hour speed limit in 1995 even though there was compelling statistical evidence to show that doing so would annually result in several thousand additional automobile-related fatalities. The people, who are free, wanted to drive faster and were willing to accept the consequences.

Pornography as Behavior

In 1984 the Indianapolis city council passed a civil rights ordinance the text of which begins by defining pornography as “the graphic sexually explicit subordination of women, whether in pictures or in words.” The ordinance, originally drafted by feminists Catharine MacKinnon and Andrea Dworkin, then proceeds to list six kinds of sexually explicit portrayals of women that would constitute a violation of the civil rights of women. What is especially noteworthy about this ordinance is its characterization of pornography as the “subordination of women,” a characterization that classifies pornography as behavior, not speech, and thereby removes the obstacle to regulating pornography imposed by the First Amendment. Ultimately, the ordinance was deemed unconstitutional by the Seventh U.S. Circuit Court of Appeals, which ruled that the attempt to redefine pornography as a form of behavior was unconvincing and amounted to legal “sleight of hand” (Hudnut v. American Booksellers Association, Inc., 1986). It is also worth noting that the MacKinnon-Dworkin attempt legally to prohibit pornography has itself been subjected to feminist critiques, which maintain that the practice of censorship has traditionally done significantly more to hurt than help the cause of women’s rights.

With the advent of the availability of online pornography, such material has become easier to access than ever before. In some cases, this has led to an increased call for banning or censorship of pornography because parties who are under eighteen and vulnerable can access a wide range of pornographic material. One of the biggest efforts to censor online pornography occurred in the United Kingdom. In July 2013, Prime Minister David Cameron announced that automatic pornography filters would be added to service by the five largest Internet providers in the country. Customers had the option to opt of the filters, but if they made no selection, the filters would be implemented. The measure was intended to shield children from accessing pornography online, but the measure resulted in the inadvertent censorship of many websites that had no pornographic content.

Bibliography

Dworkin, Andrea, and MacKinnon, Catharine. Defending Pornography. New York: Scribner, 1995. Print.

Dwyer, Susan. The Problem of Pornography. Belmont: Wadsworth, 1995. Print.

Hunt, Lynn, ed. The Invention of Pornography. New York: Zone, 1993. Print.

Penny. Laurie. "David Cameron's Internet Porn Filter Is the Start of Censorship Creep." Guardian. Guardian News & Media, 3 Jan. 2014. Web. 28 Nov. 2015.