Further Thoughts on Porn

For the record, I'm doing readings for a class about the First Amendment and obscenity. That's why the stream of posts on the subject.

We ban child pornography. I don't think very many people protest this fact on freedom of speech grounds, including First Amendment absolutists like Justices Black and Douglas. Why? Well, I think it's because we recognize that, while the dissemination and consumption of porn may be just plain expressive, its production is not. We recognize in the production of child pornography an element of sexual abuse. And this is perfectly legitimate. But, wait a minute. Doesn't this suggest a really easy way to justify banning pornography wholesale? After all, we criminalize prostitution. Certainly we think that the state may criminalize prostitution if it wants to.

Isn't there a pretty hefty element of prostitution in pornography? A person is having sex in exchange for money. The only difference is that it's not their partner who's paying them, but rather the producers of the "film" pay all participants. But should that make a difference? Only if the justification for banning prostitution is that those wicked women are seducing men out of their money, which I'm pretty sure it isn't, at least not in 2011. (And that's certainly not the justification for criminalizing the customers of prostitution.) So why shouldn't the state get to say, look, we don't care much about the expressive content of porn, but its production is perforce either prostitution or slavery, and we're pretty uncool with either of those options? This removes the whole question of pornography from the realm of the First Amendment, allowing us to conclude rather easily that it should not be protected without imperiling any other First Amendment guarantees.

I'm not sure I would support that criminalization, and I'm fairly certain that you could construct a society in which I wouldn't. That follows from essentially the same logic that says that I wouldn't support criminalization of prostitution in societies where empirically the concerns from exploitation weren't present. Not all (female) feminists agree with this point of view, but some of them do, and I don't think it is a priori unreasonable. But if we have the sense that pornography is really, really bad for society, as MacKinnon clearly does, I think there are pretty good ways to justify banning it without calling it censorship of expression.