Читать книгу Free Speech Law and the Pornography Debate - Lynn Mills Eckert - Страница 5

What does this understanding of epistemology specifically entail for my analysis of law and pornography? It means that the first step in my attempt to understand the pornography debate in US law will be to ask a series of questions closer to a sociology-of-knowledge approach. What makes it possible for pornography to exist in the inegalitarian form and to thrive? What institutions, structures, rules, beliefs, discourses, and ideologies must be in place to justify and defend inegalitarian pornography? What conditions would need to change in order to understand it differently and perhaps for it to transform? In essence, the first step is to bracket the moral claims about the rightness or wrongness of pornography regulations and determine whether we regulate pornography and, if we do, how and why?

The sociology-of-knowledge approach yields important insights about how and why we regulate porn and what law is willing or unwilling to say about it. Interestingly, in the modern era, law rarely uses obscenity to regulate porn but instead draws upon zoning law. Those different regulative approaches (obscenity, zoning, civil damage approaches) apply varying categorical choices, concepts, and language. One chapter will examine the varying categorical choices in both the zoning and civil damage cases regulating pornography, analyzing their implications for regulations. Another chapter will linger on the language used to describe adult establishments and nude dancing, to uncover the banal meanings hidden from us due to our familiarity.

After examining the categorical choices and language of the zoning and nude dancing cases, the next chapter analyzes free speech doctrine itself. Specifically, I will examine the assumptions underlying a core element of modern free speech doctrine, namely, the content-neutrality principle. The content-neutrality principle holds that government may never regulate speech based upon a like or dislike of the message. The guiding purpose of the principle is to prevent government from making a judgment about speech: its rightness or wrongness. Government can and should remain neutral in evaluating speech in our democracy. This indeed is a noble principle, one worth preserving. Yet, intentions that inform the categories of law sometimes deviate from how those categorizations operate in practice. I will argue that content-neutrality in practice is non-neutral when it comes to evaluating the harms from pornography and hate speech. An espistemological approach described earlier in the introduction will help us to understand how and why the current understanding of content-neutrality is profoundly biased.

More specifically, I will explore how the content-neutrality principle effectively functions as both a gender and racially coded category, preventing any serious evaluation of harm claims stemming from speech that implicates Fourteenth Amendment concerns. Instead of upholding values of neutrality in assessing such inegalitarian forms of speech, content-neutrality functions in an ahistorical and acontextual manner, stripping away the ability to assess meaning and negative effects from language. As we know, harm remains one of the principal rationales to constitutionally regulate speech under US free speech doctrine. If speech harms, as in the case of libel, we regulate. Language, its meaning and effects, is deeply contextual, depending upon power, history, and culture. Any process that prohibits a weighing of such factors operates in a de facto non-neutral manner.

Embedded in modern free speech doctrine and its central tenet, the content-neutrality principle, is a particular understanding of speech that I will examine as well. Despite advances in philosophy about the nature of language and how it shapes our reality, free speech doctrine remains mired in a libertarian understanding of speech. The classic colloquial description of that perspective is embodied in the old children’s saying “sticks and stones may break my bones but names will never hurt me.” In this view, speech is distinctive from the real world of action. Yet poststructural theory provides an alternative understanding of speech through the concept of discursive effects. Following from that view, discourse creates more than hurt feelings. Instead, it generates ideological, material, and epistemic effects. The very concept of discursive effects challenges not only the libertarian understanding of speech but also dislodges the causal criteria to prove harm. Under the civil damage ordinance approach advocated by Catharine MacKinnon and Andrea Dworking in American Booksellers v. Hudnut (1985), the content-neutrality principle would not prevent government from regulating pornography if harm could be causally proven. Yet, in Hudnut, pro-regulation advocates find themselves in a catch-22: to narrowly define the kind of porn that harms is to reference its gendered, misogynistic, and violent content. Once the definition references content, it triggers the content-neutrality principle. If the content-neutrality principle is operative, the only way to prove harm is causally. Under a theory of discursive effects, speech produces serious effects or harms about which egalitarian liberals should be concerned, but not in a causal manner. Causality, as Foucault tells us, is a mystification: an unattainable ideal beyond the grasp of even the hard sciences.

While the concept of discursive effects may better explain how porn harms than sophisticated causal accounts or speech-act theory, the fact remains that law is conservative in its reliance on precedent. Free speech precedent in cases involving pornography regulation (and hate speech) does not rely upon a poststructural understanding of speech or discursive effects.^[22] Instead, I will contend, arguments that present courts with harm claims about pornographic speech (or hate speech) rely upon precedents that invoke outdated understandings of speech. Yet the claim I wish to make in the pages that follow is that we must re-read a seminal case, Brown v. Board of Education (1954), through the lens of speech and, specifically, from the framework of discursive effects. Such a re-reading depends upon Charles Lawrence’s radical re-interpretation of Brown as a case primarily about speech. Lawrence argues that the expressive elements inhering in the practice of segregation (i.e., the message of white supremacy) harms more than the actual act of segregating individuals. The sting, humiliation, and harm from segregation is expressive, particularly in instances where the pro-segregation advocates attempted to provide equal facilities, eliminating the potential for facial discrimination.^[23] I want to extend Charles Lawrence’s profound and ground-breaking insight about Brown as speech, placing it within the context of discursive effects. Lawrence, in his argument, highlights Warren’s concerns about the effects of segregation on the hearts and minds of young black children. For Lawrence, those effects are the harms from a white supremacist message. Those harms, in my view, are better understood as discursive effects. In Lawrence’s re-reading of Brown we see the very linguistic turn in philosophy mentioned at the beginning of the introduction. Segregation becomes a discursive problematic, the social construction of meaning, and it is accorded density and weight.^[24]

With the concept of discursive effects, we have a more extensive understanding of how discursive practices effect or hurt “the hearts and minds” of young black children and we have a better ability to understand the extent of those harms on citizenship outside of the confining and distorting frame of causality. Reframed from the lens of discursive effects, Warren’s moving language in Brown is describing the ideological, material, and epistemic effects of a white supremacist message. The mechanism of those devastating harms is not causal and they do not, I will argue, rest upon speech-act theory.

If Lawrence is correct and Brown should be properly understood as speech, then I hope to utilize that radical reinterpretation in two ways. First, I want to suggest that embedded in US law are arguments, however brief or momentary, that may be recouped, highlighted, and reapplied to incorporate an understanding of harmful speech of the kind in inegalitarian pornography by deploying the concept of discursive effects. Such an understanding of harmful speech in terms of discursive effects, I will contend, is compatible with US law and its liberal philosophical foundations. By connecting discursive effects to a well-established precedent (Brown), it is possible to avert concerns about the conservative nature of precedent. In effect, a new paradigm of discursive effects helps us to better understand a case long ago decided and more effectively elucidates the precise reasons why expression helped to maintain inequality in the case of segregation in violation of the Fourteenth Amendment. Second, I want to attempt to apply this theory of discursive effects to pornography regulation. Brown, understood as a case about expression that produces discriminatory discursive effects, can and should help us understand and evaluate the claim that inegalitarian pornography harms women’s citizenship rights.

It is in the latter part of the book where the shift from a sociology-of-knowledge approach to an epistemic approach becomes relevant. Linda Martin Alcoff in her seminal work on epistemology, Real Knowing: New Visions of Coherence Theory, writes that, like Marx, she believes there shouldn’t be an absolute separation between how we actually justify our beliefs and the way in which we should justify them. The distance between epistemology and the sociology of knowledge on that view closes or should close. In terms of the book’s argument, the distance between how and why we regulate pornography in the zoning cases and the arguments rejected in Hudnut should close. In both the zoning approach to regulating pornography and the Hudnut case, law finds that pornography generates adverse secondary effects or harms, including those aimed specifically at women. Yet in one set of cases, the gender-based arguments concerning pornography are submerged in larger concerns about zoning to protect property, while in the other the gender-based concerns frame the entire case.^[25] The former set passes constitutional muster while the latter case is struck down as legislation aimed at thought control.^[26] The distance between how we do regulate pornography’s harm in the zoning cases and how we should regulate pornography as a civil rights matter in Hudnut should close. The sociology-of-knowledge approach helps us to recognize that gap, while epistemology in the way advanced in the preface helps us to close it.

Alcoff explains why we must maintain a separation between the sociology of knowledge and epistemology. She contends that epistemology shouldn’t simply be reduced to a sociology of knowledge approach. We need an epistemology that enables us to analyze and critique our actual ways of coming to know even as they reveal biases.^[27] Only epistemology helps us to evaluate competing knowledge claims in ways that are defensible and based upon reason, even if that understanding of reason is problematized by power and desire. What the sociology of knowledge has taught is that actual operations concerning power in producing knowledge shouldn’t remain silently unanalyzed. Yet knowledge claims can’t simply be reduced to sociological concerns about power relations, desire, and the conservation of beliefs. Reason, truth, and objectivity matter if we are to remain committed to democratic ideals of justice and fairness and a constitutional form of government premised on public justification. Where we can point out that past knowledge claims are contradictory, distorted by power relations, or at odds with reality, we may revise them.

In that same spirit, my own analysis is no “view-from-nowhere.” The argument advanced here is just as fallible and embedded in a particular cultural horizon with hidden (and unhidden) prejudgments as the perspective embedded in free speech doctrine and the feminist debate about pornography regulation. The same critiques that I level at these various knowledge claims can and should be leveled at my own argument.

My position throughout the book is to remain committed to the principles of liberalism engrained in US constitutional law. This may sound like an odd claim given that I depend upon philosophical positions critical of the very ideas of truth, objectivity, and reason, which are so central to the liberal enlightenment tradition. Nonetheless, these philosophical critiques of liberalism throw into relief the provisional nature of truth and our inherent fallibility in accessing it. Problematizing these concepts gives us the hope of accounting for such biases and remaining humble in the face of proclaimed certainties while retaining truth, reason, and objectivity as criteria for assessing knowledge claims. At a minimum, even compromised understandings of reason and truth are better than the alternative: namely, the criteria of might makes right. In our system, might equates to the forces of capitalism, patriarchy, homophobia, and white supremacy rather than fairness, equality, and justice.^[28] Those forces are particularly relevant in analyzing the place of pornography in maintaining inequality. Liberalism as a theory is supple enough to embrace critiques of reason while simultaneosly relying upon a more problematized and realistic understanding of reason for the operation of just law.

This commitment to liberal constitutional law as a means to address the inequalities of pornography separates my approach from someone like Catharine MacKinnon.^[29] Liberal law, especially the egalitarian variety, can conceptually recognize and redress the harm from pornography. While MacKinnon and Dworkin used liberal law as a vehicle to regulate pornography in Hudnut, the approach failed. MacKinnon’s larger theoretical work critiques liberalism’s ability to address the roots of gender inequality. MacKinnon is not alone among feminists in rejecting the notion that liberalism can address the regulatory issues surrounding pornography. Carol Smart writes:

The aim of “fitting” feminist ideas on pornography into a legal framework that might be “workable” (in narrow legal terms) or politically “acceptable”, means that many of the subtle insights and complexities of feminist analysis are necessarily lost. The framework (whether civil or criminal) requires that we fit pornography, or the harm that pornography does, into existing categories of harms or wrongs. Hence, we are left with a focus on degrees of actual violence or the traditional (non-feminist) concern with degrees of explicitness which are the mainstay of obscenity laws.^[30]

This book aims to explain how liberal legal categories are subject to rupture and change in ways that embrace these feminist insights. Not only can liberal law redress the harms from inegalitarian porn but it can also embrace a more realistic understanding of how speech actually operates. Speech, I will argue, is best understood through the theory of discursive effects rather than a simplistic libertarian notion. I assert that the philosophical assumptions underlying the categories within liberal free speech law can evolve in such a way to apply reasonable regulations on inegalitarian pornography. It can recognize different varieties of pornography while finding that some deserve protection while others require regulation. In short, liberalism can fully embrace the gender equality rationale as a basis to regulate inegalitarian pornography. The book is, in part, a road map as to how liberalism can do so.

Moreoever, liberal law can recognize and redress the gendered harms from pornography based upon its commitment to reason, which is also entailed in an epistemological approach. Where inconsistencies and contradictions nag, not just in constitutional law, but also in the pursuit of knowledge more generally, we must refine them. We cannot engage in such a refinement if all knowledge is reduced to sociology or ideology. Stephen Macedo in Liberal Virtues writes:

Where we have no good reasons for the distinctions and discriminations we draw, we have anomalies or inconsistencies calling, not for bland acceptance, but for further reflection and perhaps revision in our thinking.^[31]

Reason, even a problematized version, one where truth is always provisional and interconnected to power and desire, holds out a hope that we may govern and, in this case, regulate not out of intolerance, puritanism, or pruience, but out of a commitment to equality, fairness, and dignity. Epistemology provides a method to help us separate pretextual harm-based arguments favoring pornography regulation from authentic ones. We cannot, however, currently assess the role of pornography in undermining women’s unequal citizenship rights without more closely examining the content-neutrality principle, the causal standard of harm, and the need for a new paradigm to understand speech and its effects.