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Until comparatively recently, the main opposition to pornography came from moral and religious conservatives, who argue that pornography should be banned because its sexually explicit content is obscene and morally corrupting. By "pornography", conservatives usually mean simply sexually explicit material (either pictures or words), since conservatives typically view all such material as obscene.
According to conservatives, the sexually explicit content of pornography is an affront to decent family and religious values and deeply offensive to a significant portion of citizens who hold these values. The consumption of pornography is bad for society. It undermines and destabilizes the moral fabric of a decent and stable society, by encouraging sexual promiscuity, deviant sexual practices and other attitudes and behaviour that threaten traditional family and religious institutions, and which conservatives regard as intrinsically morally wrong. Furthermore, pornography is bad for those who consume it, corrupting their character and preventing them from leading a good and worthwhile life in accordance with family and religious values.
According to conservatives, the state is justified in using its coercive power to uphold and enforce a community's moral convictions and to prevent citizens from engaging in activities that offend prevailing community standards of morality and decency. (See e.g., Devlin 1968, Sandel 1984.) This position is sometimes called legal moralism. Governments also have a responsibility to prevent citizens from harming themselves. This is true, even where the citizen is not a child (who may not yet be competent to make responsible judgements for themselves about what is in their own best interests), but a mature adult who is voluntary engaged in an activity which they judge to be desirable and which causes no harm to others. The view that the state is entitled to interfere with the freedom of mentally competent adults against their will for their own good is often called legal paternalism.
Conservatives therefore think that it is entirely legitimate for the state to prohibit consenting adults from publishing and viewing pornography, even in private, in order to protect the moral health of would-be consumers and of society as a whole. (See Baird and Rosenbaum 1991.)
Traditional liberal defenders of pornography famously disagree, rejecting both the principle of legal moralism and the principle of legal paternalism, at least where consenting adults are concerned. This is not to say that liberal defenders of pornography necessarily approve of it. Indeed, they frequently personally find pornography-especially violent and degrading pornography-mindless and offensive. Many concede that pornography-by which they usually mean sexually explicit material whose primary function is to produce sexual arousal in viewers-is "low value" speech: speech that contributes little, if anything, of intellectual, artistic, literary or political merit to the moral and social environment. But this does not mean that it should not be protected-quite the opposite. A vital principle is at stake for liberals in the debate over pornography and censorship. The principle is that mentally competent adults must not be prevented from expressing their own convictions, or from indulging their own private tastes, simply on the grounds that, in the opinion of others, those convictions or tastes are mistaken, offensive or unworthy. Moral majorities must not be allowed to use the law to suppress dissenting minority opinions or to force their own moral convictions on others. The underlying liberal sentiment here is nicely captured in the famous adage (often attributed to the French philosopher, Voltaire):"I disapprove of what you say, but I will defend to the death your right to say it."[1]
For liberals, there is a very strong presumption in favour of individual freedom, and against state regulation that interferes with that freedom. The only grounds that liberals typically regard as providing a legitimate reason for state restrictions on individual freedom is in order to prevent harm to others. Hence, in debates over censorship and other forms of state regulation that restrict the liberty of individuals against their will, the burden of proof is always firmly on those who argue for censorship to demonstrate that the speech or conduct in question causes significant harm to others. It must either be shown to directly cause actual physical violence to others (e.g., murder, rape, assault, battery), on a narrower understanding of "harm"; or to deliberately or negligently violate sufficiently important interests or rights of others, on a broader, interest-based conception of "harm". (For further discussion of these different conceptions of harm to others see e.g., Dyzenhaus 1992, Feinberg 1987.)
Liberals have traditionally defended a right to pornography on three main grounds. (By the "right to pornography" here, and in what follows, I mean the negative right of consenting adults not to be prevented from making, publishing, exhibiting, distributing and consuming pornography in private). Firstly, on the grounds of freedom of speech or expression, which protects the freedom of individuals (in this case, pornographers) to express their opinions and to communicate those opinions to others, however mistaken, disagreeable or offensive others may find them.[2] Liberals have tended to conceive of freedom, including freedom of expression, as negative freedom-as non-interference by others-rather than as positive freedom, which involves having the positive goods and facilities required to exercise the freedom.[3] Freedom is thus something that individuals have just so long as there are no coercive external obstacles-notably, physical or legal restrictions-in their way.
Few liberals nowadays think that the (negative) right to freedom of speech is an absolute right: a freedom that can never legitimately be restricted by the state. If the speech causes sufficiently great harm to others then the state may have a legitimate interest in regulating or preventing it. There is no simple general formula or algorithm for determining when the harm caused to others is "sufficiently great" to justify legal restrictions in the case of speech and more generally. This will depend on the outcome of a complex process of carefully weighing and balancing the strength and nature of the harm and the competing interests at stake, and an analysis of the costs and benefits of alternative policies, that needs to be undertaken on a case by case basis.
However, when it comes to legislation that interferes with free speech, the liberal presumption against legislation is especially high. For liberals take freedom of expression to be an especially important right that takes precedence over most other rights and interests (including equality) should they ever conflict. Levels of harm that would normally be sufficient to justify regulating the conduct which causes them may be not be sufficiently great to justify restrictions in cases where the harm is caused by speech or expression. Hence, for liberals, justifying censorship of pornography requires that there is extremely reliable evidence to show that the publication or voluntary private consumption of pornography by consenting adults causes especially great and serious harm to others. The harm caused by expression must be very certain and very great before it is legitimate for a state to prohibit it. We would be justified in banning a certain type of pornography (e.g., bondage pictures) only when we are very sure that, on average, tokens of that type (i.e., most particular bondage pictures) cause very great harm.
Secondly, liberals have defended a right to pornography on the grounds of a right to privacy (or "moral independence", as one prominent liberal defender of pornography calls it), which protects a sphere of private activity in which individuals can explore and indulge their own personal tastes and convictions, free from the threat of coercive pressure or interference by the state and other individuals. The spectre of state intrusion into the private lives of individuals underpins much of the liberal discomfort about censorship of pornography.
Like the right to freedom of speech, the liberal commitment to privacy is not absolute. It can be overridden if the private activities of individuals are such as to cause significant harm to others. Thus, if there is reliable evidence to suggest that the voluntary private consumption of pornography causes sufficiently great harm to others then- providing this harm is sufficiently great and that state prohibitions are the only effective way of preventing it-the state would have a legitimate interest in prohibiting it.
But-and this is the third prong of the traditional liberal defence-pornography is comparatively harmless. Neither the expression of pornographic opinions, nor the indulging of a private taste for pornography, causes significant harm to others, in the relevant sense of harm (i.e., crimes of physical violence or other significant wrongful rights-violations). Hence, the publication and voluntary private consumption of pornography is none of the state's business.
These three central ingredients in the liberal defence of pornography find their classic expression in a famous and influential passage from John Stuart Mill's On Liberty (1859). In this passage, Mill sets out the principle that underpins the prevailing liberal view about when it is justified for the state to coercively interfere with the liberty of its citizens. It is a principle that continues to provide the dominant liberal framework for the debate over pornography and censorship. Mill writes:
The only principle for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to someone else. The only part of the conduct of any one for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. (Mill 1975: 15)
Mill's central claim is that society is justified in interfering with the freedom of mentally competent adults to say and do what they wish only when their conduct will cause harm to others. This has come to be known as the liberty principle or harm principle; and it forms the cornerstone of the traditional liberal defence of individual liberty. It protects the freedom of all mentally competent individuals to live and shape their own lives in accordance with their own preferences and beliefs, so long as they do not harm others in the process.
Mill goes on to stress that the harm principle is meant to apply "only to human beings in the maturity of their faculties"(Mill 1975:15). So the principle permits paternalistic intervention in the case of those who are not competent to make an informed decision about what is in their best interests for themselves, and so who "must be protected against their own actions as well as external injury": for example, young children or those adults whose decision-making abilities are temporarily or permanently impaired.
It is generally thought to follow that child pornography, which is taken to involve the actual sexual abuse or exploitation of children (with or without their apparent consent), can legitimately be banned in order to protect the interests of children, who are not yet competent to fully understand the nature of the choice they are making or to grasp the impact of their decisions on their present and future interests. (This is not entirely uncontroversial, however: for it might be denied that children are harmed by participating in pornography. The North American Man Boy Love Association (NAMBLA), for example, denies that having sex with adults is harmful for children.) For the same reason, liberals think that children can quite rightly be prevented by parents or by the state from purchasing or viewing pornography, if this is thought likely to harm them. That child pornography should be banned is common ground between liberals and conservatives. However, pornography that involves the simulated abuse of children (for example, consenting adult actors dressed up as schoolgirls) cannot legitimately be prohibited under the harm principle, unless there is good evidence to suggest that consumption of this material causes significant harm to people other than those who consume it: by, for example, causing those who consume it to abuse children.
We are now in a better position both to see what it would take for liberals to think that censorship of pornography is justified and why liberals have been so unsympathetic to the sort of argument against pornography that conservatives make. Conservatives wish to prevent mentally competent adults from publishing and consuming pornography on the grounds that the choice to consume pornography is deeply morally misguided. But, as Mill insists, this is "not a sufficient warrant" for coercive interference with individual liberty. Neither the state nor moral majorities are entitled to restrict the private choices and activities of individuals against their will simply because, in the opinion of state officials or the social majority, that way of life is unworthy or unrewarding. Mill thinks that this sort of legal moralism will lead inevitably to a terrible "tyranny of the majority", crushing individual diversity and blocking human progress and flourishing.
However, following Mill, liberals are generally happy to allow that considerations of the individual or common good may entitle the state to use other, so-called non-coercive means to persuade citizens to make wise or better choices. Thus public education campaigns designed to inform citizens of the dangers of smoking or excessive alcohol consumption, or to persuade them to make "wise" choices (for example, to eat more fruit and vegetables) may be justified. While others cannot force an individual to do something (or to forbear from doing it) when they are not harming others, it is entirely legitimate to seek to advise, instruct or persuade them. So, if there are reasons to think that pornography is not good for the individual who consumes it (say, because it makes them less likely to be able to have successful loving or long-term relationships), public education campaigns to warn consumers of these dangers may be justified. Indeed this-education and debate-is precisely the solution that liberals typically recommend to counter any harm that pornography may cause. (See e.g., Feinberg 1985, Donnerstein et. al. 1987, Dworkin 1985) This solution respects the freedom of rational agents to exercise their own rational capacities in deciding what to think and how to live.
However, liberals insist that if attempts at persuasion should fail, and where an individual's conduct poses no significant threat to the physical security or interests of others, the state may not use coercive legal mechanisms to enforce these "wise" choices. "The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it" (Mill 1975: 18). For Mill, the individual person is in the best position to judge what is in his or her own best interests; and, even if individuals may sometimes make bad choices, it is better in general that they be left free to make these mistakes. For no one's opinion about the good life is infallible; and, in any case, a life lived from the inside, in accordance with values that the individual endorses, is more likely to be a fulfilling one than a life where the individual is forced against their will to live as others as believe best.
In an influential liberal defence of pornography, Ronald Dworkin expresses this commitment in terms of a right to "moral independence". People, he says, "have the right not to suffer disadvantage in the distribution of social goods and opportunities, including disadvantages in the liberties permitted to them by the criminal law, just on the ground that their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong." (Dworkin 1985: 353.) The fact, if it is one, that the majority of people in a society prefer that pornography be banned because they regard it as immoral or offensive is not a legitimate reason for interfering with (pornographers') freedom of speech or for preventing consenting adults from consuming it in private. For allowing such illegitimate "external" preferences of a majority to dictate government policy would violate the right to moral independence of the producers and consumers of pornography. It would give moral majorities the power to dictate how members of minority or non-mainstream groups can live on the basis of the majority's opinions about what sort of people are most worthy and what sorts of lives are worth living, and this violates the basic right of all individuals to be treated with equal concern and respect.
However, Dworkin thinks, considerations of offence may provide some justification for preventing or restricting the public display of pornography so as to avoid its causing offense to non-consenting adults who might otherwise involuntarily or unwittingly be exposed to it. Joel Feinberg, another well-known liberal defender of pornography, agrees. But Feinberg thinks that such restrictions must be justified by a separate principle to the harm principle, for he thinks that certain sorts of unpleasant psychological states are not in themselves harms. Feinberg calls this additional principle the offense principle. The offense principle says that "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end (i.e., there is probably no other means that is equally effective at no greater cost to the other values)." (Feinberg 1999:78. For a more detailed discussion see Feinberg 1985.)
Like Dworkin, Feinberg thinks that the voluntary private consumption of pornography does not cause harm to others. Hence, wholesale criminal prohibitions on the publication and private voluntary consumption of pornography cannot be justified. But the public display of pornography may nonetheless constitute an "offensive nuisance" to non-consenting adults who are involuntarily exposed to it (just as neighbours who play bad music loudly into the wee hours of the morning may be an "offensive nuisance"). Since the harm-or rather, pseudo-harm-of pornography is the offense it may cause unwitting viewers involuntarily exposed to it, the solution is to restrict its exhibition to domains where such involuntary exposure will not occur, such as inside well sign-posted adult bookshops and cinemas where those who will be offended will know not to venture. (See Feinberg 1983: 105-13.) Although this may prevent pornographers from distributing their opinions as widely as they might like, and may also cause some minor inconvenience to consumers (who may have to go further out of their way to find and view pornography, or suffer the embarrassment of having to sneak into known adult bookstores), these costs may be relatively small compared with the level of offense that involuntary exposure is likely to cause. Such restrictions on the public display of pornography would not amount to censorship, for pornographers are still free to publish and distribute their opinions. Nor would they violate consumers' right to privacy, for pornography would be freely available for willing consumers to view in private. The Williams Committee Report into Obscenity and Film Censorship in England made a similar recommendation, pointing to general considerations of public decency that prevent "offensive" public displays of conduct (e.g., nudity or sexual intercourse) that is appropriately seen or done only in private. Susan Wendell also agrees that the public display of certain sorts of pornography-visual, audio and written material that depicts and condones the unjustified physical coercion of women or other human beings-should be prohibited, although her particular concern is to remove the anxiety that involuntarily exposure to such coercive material is likely to cause women and the harm it is likely to do to their self-esteem (Wendell 1983).
Liberal defenders of the right to pornography may thus allow that restrictions on its public display may be justified. But only if pornography can reliably be shown to cause significant harm to people other than those who voluntarily consume it will there be a legitimate case for prohibiting its voluntary private consumption. When an individual's private activities cause harm to others then they become no longer merely a private matter, but of legitimate public interest; and the state may be justified in regulating them. Thus, Dworkin says, were excessive consumption of pornography shown to cause absenteeism from work, then the public and the state might have some legitimate interest in preventing it. But, Dworkin thinks, there is as yet no reliable evidence that firmly establishes that the voluntary private production or consumption of pornography by consenting adults causes this or any other sufficiently significant harm to others, in the relevant sense of harm. Hence, pornography satisfies only harmless personal preferences for sexual gratification; and is therefore none of the state's business.
Liberals also have technical concerns about how censorship laws might work in practice. Many liberal (and feminist) objections to censorship of pornography point to the practical costs and dangers of censorship, arguing that even if pornography does cause some harm to others, the risks involved in censoring it are too great. They point to the difficulties involved in formulating a legal definition of pornography that will be sufficiently precise to minimize the danger that censorship laws targeting pornography will be used (intentionally or unintentionally) to censor other unpopular material, including valuable literary, artistic and political works. Censoring pornography may thus place us on a dangerous "slippery slope" to further censorship of other material; and may have a general "chilling effect" on expression, making people reluctant to say or publish things that might be construed as pornography and for which they could be prosecuted. (For further discussion see Williams 1981, Schauer 1982, Easton, 1994.)
These are serious dangers; and they need to be carefully taken into account in weighing the costs and benefits of censorship as a solution to any harm that pornography might cause. But it is worth noting that they are inherent in many existing forms of legislation, and are not always taken to be insoluble or to constitute a decisive reason against censorship in themselves.
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