Читать книгу Free Speech Law and the Pornography Debate - Lynn Mills Eckert - Страница 4

In examining the legal debate about pornography from an epistemic lens, the book adopts a particular approach to epistemology, one that both problematizes and retains notions of truth and objectivity while recognizing that desire and power play a role in producing knowledge.^[1] It recognizes the linguistic turn in philosophy as well as where “an epochal shift in philosophy and social theory [has taken place] from an [traditional] epistemological problematic, in which mind is conceived as reflecting or mirroring reality, to a discursive problematic, in which culturally constructed social meanings are accorded density and weight.^[2] Relying on studies and measures of harm alone will not end the debate about porn’s regulation. The empirical variables rest upon the social construction of meaning and the way that construction informs the epistemological understanding of the problem. The discursive problematic ranges from the social construction of sexuality, masculinity, femininity, freedom of speech, harm, and equality. Such an understanding of epistemology, which in colloquial terms means the study of “how we know what we know,” borrows from the criticisms of the sociology of knowledge, feminist epistemology, continental theory’s understanding of meaning and interpretation, critical theory, and poststructuralism.^[3] In varying degrees, those criticisms have demonstrated that none of us have a God’s-eye-view-from-nowhere and that the ability of humans to access the unfiltered truth isn’t possible. In short, we are fallible, bringing our own cultural, historical, and social biases or prejudgments with us when attempting to validate or invalidate truth claims. Our ability to establish truth upon a solid metaphysical foundation isn’t possible.^[4] These insights should influence legal discussions about porn’s meaning, the categories law deploys, whether it harms, standards of evidence and appropriate regulations, if any. Truth matters, but it may be a moving target depending on context and power. Moreover, law may have to respond to the idea that we have no access to enduring truths, requiring law to accommodate changes as material conditions and context changes.^[5]

Despite conceding that truth has no solid metaphysical foundation from which to tell us definitively porn’s meaning and its harms, the book, nonetheless, seeks to retain a concept of truth and to provisionally discover a “truth” about pornography in its current historical form. Those committed to social justice must rely upon truth, even a problematized version of truth, to fight oppression.^[6] Without truth, claims about discrimination rest upon the whims of those in power rather than on the objective ability to demonstrate harm. At the same time, Western culture has used claims to “truth” and “objectivity” to brutalize and oppress minority groups.^[7] A social epistemology grounded in coherentism and attentive to the relationship between truth and power should provide insight into how and why false claims of objectivity prevailed at particular moments in history while recognizing the need to recoup and remedy those failings that brought us far short of authentic “truth.” For example, such an understanding of epistemology should help to navigate the competing claims within the debate about pornography regarding which group has more power—pornographers or feminists. It should help us reconsider how to conceptualize and measure harm claims about pornography. It should help us define pornography as a practice, even though that practice isn’t static.

My hope throughout this project is that the very same heterogenous combination of theories that led philosophers such as Linda Alcoff, Nancy Fraser, and Satya Mohanty, to name just a few, to analyze the failings of more traditional, foundationalist accounts of epistemology will be applied to free speech law and the pornography debate. Through the application of feminist epistemologies, continental philosophy, poststructuralism, critical theory, egalitarian liberalism, the sociology of knowledge, and phenomenology, I will attempt to place the debate about pornography’s regulation on a different terrain. This is no easy feat. Many of the underlying presumptions of these theories are at odds. Yet the argument about the utilization of competing theories relies upon far more auspicious scholars who have already done the heavy intellectual lifting in determining where these theories can complement one another. I attempt to apply those theories to First Amendment law and the pornography debate.

Such an approach to epistemology, as I understand it, entails several different assumptions worth highlighting and scrutinizing. The first is that knowledge and power are interconnected, which is to say that we must analyze power as an influence in determining knowledge.^[8] To be clear, power is not reducible to knowledge, but it plays an integral and analyzable role involving such considerations as who sets criteria for knowledge claims, to whose account is plausible, and to which groups receive resources enabling the very production of knowledge.^[9] Law is a site of knowledge production where legal precedents validate a specialized kind of truth. Knowers are always already socially, historically, and culturally embedded, and that embeddedness brings with it certain assumptions, biases, and prejudgements from which we are not free. Whose insights are predominately embedded in the law? Which narrative is stronger in shaping our understanding of modern free speech doctrine? In the conversation about pornography and its effects, which group deploys power to shape discursive understandings and legal outcomes? As Margaret Attwood remarks about the porn industry’s claims to powerlessessness, for example, “it is hard to feel that porn is the excluded other when it is so prevalent and so present in public.”^[10] Can a self-conscious analysis of the relationship between power and knowledge help us to come to conclusions about the relationship of power in this debate and how it influences what we know and validate in law regarding pornography?

These insights concerning our prejudgments and biases come from a tradition of continental philosophy called hermeneutics, which developed from the desire to interpret ancient texts, especially biblical texts. The ability to understand those texts rests upon a fusion of cultural horizons between the reader in the present and the text from the past. As a modern reader of an ancient text, we have limited abilities to embrace the nuanced subtleties of language, practices, and culture from a bygone age. Instead, we do our best to interpret by bringing our modern prejudgements intermixed with tradition to bear on the past. Some prejudgements produce interpretations that must be ruled out given what we know about a past culture. Other prejudgments produce disruptive meanings, which “pull us up short” from the text.^[11] In such instances, we are made aware of our biases and must grapple with them.

In the debate about pornography, no one escapes these cultural horizons and prejudgments of which we are inextricably a part. The meaning we attach to pornography must be scrutinized with an awareness of social locatedness within a cultural horizon as well as an awareness of our prejudgements. Our social locatedness within a horizon is always specified by variables such as our gender, race, class, and sexuality. For example, within our current cultural horizon, we are far more willing to recognize racism within the genre of pornography and less willing to discuss sexism within the industry.^[12] The question becomes why? What about our social locatedness and the context makes one unequal aspect of the genre more recognizable and problematic than another?

In both instances—the interconnection between knowledge and power and our social, cultural, and historical embeddedness—we are reminded that knowledge and truth are provisional and their justifications are very much a social affair. Where new information presents itself that better coheres with our web of meanings, we revise knowledge as we know it. An analysis of porn and its harms requires similar attentiveness to concerns about patriarchal power and its distorting effects on law, culture, and epistemology as well as the ways in which pornography as a discourse has evolved due to market and technological changes, reactions to cultural shifts, and critiques of the genre from feminists and others.^[13] Pornography as a practice may not be monolithic, although some versions of it may be more dominant and problematic than others.

The second assumption requiring some explanation is that I borrow insights from the sociology of knowledge. A sociology of knowledge approach can make visible the gap between how we actually produce knowledge and how we should or purport to produce knowledge. It is Thomas Kuhn’s The Structure of Scientific Revolutions which demonstrates that science’s actual practices and experimental character are quite different than the dominant theoretical accounts of science producing knowledge.^[14] In too many traditional accounts of epistemology, how knowledge is produced is quite different from the ideal of how it should be produced. In Kuhn’s work, traditional scientific models of knowledge posit the displacement of old theories with the replacement of new theories as a linear, progressive march toward adopting paradigms that better explain phenomena.^[15] Instead, with the introduction of new paradigms or new models of knowing, entrenched interests hold out to protect old models because of their investments in time, money, and intellectual capital. In an even broader application of the sociology of knowledge, power, desire, and the tendency to conserve beliefs play a role in producing knowledge rather than just the notion that we adopt new paradigms when they offer better explanations. More accurate theories of knowledge will account for the insights from the sociology of knowledge, analyzing elements like power as ineliminable, while retaining the need for epistemology. The book applies this sociology of knowledge approach to demonstrate the ways that we already both regulate pornography and acknowledge its problematic effects without fully admitting it and openly and honestly weighing free speech concerns in the zoning cases. How can we be more truthful about pornography, about its diversity, it potential transgressiveness, and its problematic variants? A first step would be to recognize what we already acknowledge but attempt to obscure in the zoning cases.

To be clear, the argument that is developed through the comparison between zoning and civil damage ordinance is not one that supports zoning as a regulatory policy option. The comparison is meant to highlight what we will say and not say about pornography. It is meant to reveal the obfuscations and doctrinal contortions and denials within free speech law about pornography and its harms rather than a rigorous argument in favor of zoning, which would necessarily entail a broader conversation about gentrification and the role of racism prevelent in the history of zoning law. Such an undertaking is simply not the focus of the book.

The understanding of epistemology utilized in this book also embraces the poststructural insight about the multiplicity of meaning, namely, that texts (including pornography broadly speaking) have no one meaning. As a discourse, pornography continues to evolve and diversify, making it difficult to see the genre as monolithic. Not all pornography falls into the problematic variety that would contribute to maintaining inequality. This book attempts to make a pro-regulation argument that is aimed at the most violent, degrading, and dehumanizing variety of pornography, which will be referred to broadly as inegalitarian pornography. This is the variety of pornography that Canada, Scotland, the United Kingdom, and other nations with strong free speech traditions have attempted to regulate. At the same time, the book recognizes the debate among pro-sex and anti-porn feminists concerning pornography’s multiple meanings. In that debate, porn studies scholars suggest that pornography may produce a multiplicity of meanings, where, for example, ostensibly heterosexual representations may be read through a transgressive queer lens.^[16] Scholars such as Thomas Waugh or Emily Shelton produce analyses of mainstream heterosexual porn through the loci of queer culture finding that “straight sex in porn is anything but just straight.”^[17] Nonetheless, as interesting and as provocative as these analyses are, we can recognize that some meanings may have more relevance than others—or, put differently, not all interpretations are equally compelling. As Tim Stuttgen suggests, porn remains dominated by “white straight men, selling their boring and heteronormative desires through the ideas of liberalism and democracy.”^[18] Stuttgen makes an important point using rather sharp and provocative language. In essence, despite a diversity of pornographic offerings, the most dominant form remains the heteronormative, white, straight, male variety. Not only does that variety remain dominant, but we can agree on the generally accepted mainstream meaning of those representations. Put differently, as a matter of law, public meanings remain the basis upon which we adjudicate given a particular context, history, and set of power relations. The question remains whether the content-neutrality principle within free speech doctrine operates in such a manner to allow nuanced consideration of context, history, and power in assessing harm and determining which subset of pornography deserves regulation.

Finally, the last point to emphasize is that given the provisional nature of truth, we must be open to differing perspectives. Where these views fit into a web of meaning and better cohere, we must refine our knowledge claims. Such an approach means that we must be open to hearing from groups historically excluded from both the processes of producing knowledge rather than only privileging the elite groups who set standards for determining valid knowledge claims. Those on the front line of experience, where immutable characteristics such as race and sex have precluded their contributions, should be heard as we attempt to both know and understand. Standpoint matters in how we experience life, particularly in societies where racism, sexism, classism, homophobia, and other kinds of oppression persist.^[19] If we truly want a fuller account of the truth, those marginalized voices must be heard. Moreover, individuals with such diverse backgrounds must be part of the very groups that determine the criteria for valid knowledge claims. Diversity, even multiculturalism, then, is continuous with epistemology rather than at odds with it.^[20]

One of the more contentious elements in the debate over regulating pornography concerns who precisely is marginalized: pornographers, women, people of color, gays and lesbians, or those working in the sex industry. We need to hear from all of these groups in order to get a fuller account of the truth without giving any one group epistemic privilege. Law must better reflect the reality of pornography in the culture as best we can understand it or lose respect.^[21] Some groups experience the potential for regulation as threatening and retrogressive while others understand potential regulation as a commitment to equality. Can epistemology help us to navigate through the debate?