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The empirical evidence remains the subject of ongoing debate and investigation. But in the absence of sufficiently conclusive evidence that pornography causes crimes of sexual violence, many liberal defenders of pornography continue to view censorship as unjustified.
However, the rights-based feminist arguments against pornography do not rest entirely on the claim that consumption of pornography is a significant cause of violent sexual crime. The claim that pornography contributes to women's inequality, and the claim that it violates women's right to freedom of speech, can rest on more moderate empirical claims about which there is likely to be more agreement: for example, that pornography helps to form and reinforce the view that women are sex objects, which manifests itself in how women are perceived and treated in society and so perpetuates women's inequality. Among other things, it may increase the likelihood of sexual harassment and other forms of discrimination against women, undermine women's credibility in certain contexts, encourage a general expectation that women who say no in sexual contexts often do not intend to refuse, and so on.
Ronald Dworkin is one prominent liberal who has explicitly considered, and rejected, MacKinnon's version of the rights-based arguments for anti-pornography legislation. This is not primarily because he rejects the moderate empirical claims. Rather it is because he thinks that, even if those claims were true, there would be no legitimate sense in which the publication and voluntary private consumption of pornography violate women's civil rights.
According to Dworkin, the argument for anti-pornography legislation on the grounds that pornography subordinates women rests on the "frightening principle that considerations of equality require that some people not be free to express their tastes or convictions or preferences anywhere." (Dworkin 1993: 39.) Accepting this principle would have "devastating consequences": namely, that "government could forbid the graphic or visceral or emotionally charged expression of any opinion that might reasonably offend a disadvantaged group. It could outlaw performances of The Merchant of Venice, or films about professional women who neglect their children, or caricatures or parodies of homosexuals in nightclub routines." Dworkin's concern is a kind of logical slippery slope objection that that he takes to constitute a reductio of MacKinnon's view. The worry is that the principle that underpins MacKinnon's argument would, if consistently applied, threaten many other forms of speech in clearly unacceptable ways.
Note that Dworkin construes-or misconstrues-MacKinnon's argument as a version of the old moralistic argument that objects to pornography on grounds of its offensiveness; and, as we have seen, liberals reject offense as legitimate grounds for preventing the voluntary consumption of pornography in private. However, MacKinnon's argument does not-or need not-rest on this frightening principle. The feminist case is not that pornography should be regulated because it expresses opinions that are offensive to feminists. Rather, it should be regulated because, offensive or not, it contributes significantly to a regime of sexual inequality.
Nonetheless, this principle-that government is justified in prohibiting speech that contributes significantly to a group's inequality- is one that some liberals may find equally disturbing. For it may well apply to speech other than pornography, including perhaps the examples that Dworkin mentions.
Dworkin is not alone in this concern. Other liberals and feminists have questioned MacKinnon's focus on pornography as the key site of women's oppression, when it seems that many other non-sexually explicit materials plausibly also endorse and perpetuate a view of women as sex objects, albeit perhaps in less graphic and explicit forms. (Perhaps this lack of explicitness makes them more insidious; and hence of more, rather than less, concern). Pornography may sexualise women's inequality, but advertising and romance novels plausibly glamorise and romanticize it respectively; and hence may celebrate, authorize and legitimise women's inequality in the same way as pornography. (See e.g., Cocks 1989, Coward 1984, Valverde 1985, Kappeler 1986, Skipper 1993.) Indeed some of these other representations may be especially worrying, not simply because they may be more pervasive, but also insofar they may condition women to be complicit in their own subjection. MacKinnon's focus on the graphic sexually explicit material that celebrates women's inequality may thus seem arbitrary, in the absence of evidence that the sexually explicit subset of material is an especially significant cause of women's inequality.
Perhaps there are principled, pragmatic reasons for singling out pornography (i.e., the sexually explicit subset of the material that conditions people to view women as willing sex objects) for censorship or regulation, even if we were to agree that non-sexually explicit may also condition consumers to this view of women. For it might be that censorship of pornography would alleviate a considerable amount of this harm, without incurring the same costs as censoring some or all of the non-sexually explicit material that contributes to the harm. But this is controversial.
What about the claim that pornography violates women's right to freedom of speech? The argument rests on a "dangerous confusion", Dworkin thinks: the confusion of positive and negative liberty. It rests on the "unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say...These are obviously not rights that any society can recognise or enforce. Creationists, flat-earthers, and bigots, for example, are ridiculed in many parts of America now; that ridicule undoubtedly dampens the enthusiasm that many of them have for speaking out and limits the attention others pay to what they have to say" (Dworkin 1993: 38). But, Dworkin suggests, we surely should not think that that this violates their right to freedom of speech: e.g., that creationists have a legitimate claim on the state to ban the publication of books or videos recommending the theory of evolution on the grounds that these may cause the speech of creationists to receive an unsympathetic or dismissive reception.
Dworkin concedes that it is perhaps true that the right to freedom of speech, if it is to be meaningful, requires that everyone has some opportunity to have their ideas heard: a society in which only the rich and powerful have access to the media may be one in which there is not genuine freedom of speech. But it goes far beyond this, Dworkin thinks, to claim that a meaningful right to freedom of speech requires "a guarantee of a sympathetic or even competent understanding of what one says" (Dworkin 1993: 38). This would license state regulation of speech on a massive scale, paving the way to terrible "tyranny" (Dworkin 1993:42).
A number of commentators have developed Mackinnon's claims in the face of Dworkin's response, arguing that freedom of speech (even negative freedom of speech) requires more than simply being free to produce and distribute word-like sounds and symbols. It also requires at least that would-be hearers are not prevented from comprehending the intended meaning of those sounds and scrawls-otherwise there is not free speech, merely the freedom to produce and distribute word-like sounds and scrawls. (See e.g., Hornsby and Langton 1998, West 2003. For replies see Jacobson 2001, Green 1998.) In different ways, these commentators argue that the traditional liberal conception of free speech, and of the right to free speech, fails to pay sufficient attention to the way language works; and, in particular, to the way in which what words mean-and so what it is possible for speakers to say or communicate-depends on social context, a context that pornography may help to shape and perpetuate.
The traditional liberal conception of freedom of speech assumes that people are free to speak just so long they are not prevented from producing sounds and scrawls that others are not prevented from hearing or seeing. But we might wonder whether this sufficient to protect free speech, even by liberals' own lights. For we might think that a government that allowed people the freedom to produce whatever sounds and scrawls they like, but who implanted some device in the heads of hearers that systematically prevented would-be hearers from comprehending the intended meaning of those sounds and scrawls, would be just as bad as a government who prevented speakers from producing the sounds and scrawls altogether. Either way, speakers are prevented from communicating their opinions to others, which defeats what liberals take to be the point of free speech: the right of speakers not to be prevented by the actions of other agents from communicating their ideas or opinions to others who might wish to hear them (West 2003).
How should the harm principle be understood? How should liberals conceptualise important values such as equality and the right to freedom of speech? What role should the state play in protecting and promoting values such as autonomy and equality? Can liberal ideals be reconciled with feminist principles and goals? The search for answers to important questions such as these, accounts for much of the ongoing philosophical interest in the question of pornography and censorship.
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