First, a false start: for those of you (oh you prurient few) interested in the porno-music genre, there is a definitive compilation on Amazon, featuring none other than Ron Jeremy on the cover. Don’t ask me where I got it.
Now, onto the real subject at hand (ahem). Whether the First Amendment protects pornography turns upon an ontological question: just what is porn? Without first answering the ontological question, we can’t answer the legal/normative question.
And it seems to me that in order to answer the ontological question about porn, we must adopt a phenomenological approach, Heidegerrian style.
To this end, I think Andrew Koppelman‘s paper in Legal Theory (Vol. 14, No. 1), titled “Is Pornography Speech?”, engages in this phenomenological task, even if Koppelman never explicitly states that his approach is phenomenological. His thesis:
“Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.”
The rest of the article is devoted largely to rebutting the argument that pornography has no cognitive content. To simplify, opponents of First Amendment protection of pornography argues that porn, unlike other forms of art, has no cognitive content but only seeks to produce a purely physical sensation and effect: namely, arousal and orgasm. And since in principle, sensations and ideas are separate, and since the First Amendment protects only ideas, not sensations, pornography should not be protected under the First Amendment.
To support his claim that pornography does in fact have cognitive value, Koppelman uses what I would consider to be a phenomenological approach, even if he doesn’t explicitly acknowledge it to be such. For example, he argues that:
“The intentions of these viewers seem clear enough. Orgasms are what they are after. Nonetheless, it is plainly mistaken to say that those intentions are merely intentions to masturbate. It can safely be assumed that they already know how to do that, even in hotel rooms without television sets. Why would they pay to rent these movies in order to do something they can already do for free? What are they paying for during those eight minutes?”
This suggests that Koppelman is arguing from the porn-consumers’ point of view, and surely his observations are plausible. But if porn-consumers are not paying merely for a physical sensation, what else are they paying for? Koppelman says:
“They are paying for a fantasy—a kind of fantasy that is appealing to them only in a state of preorgasmic arousal, but a fantasy nonetheless. Moreover, not all uses of pornography are as a prelude to orgasm. (Porn magazines are sold in airports, and the men who purchase them very much want not to have an orgasm, since their other pants are in the luggage. What they want is to pass their time imagining certain things.) The common denominator is not any particular physical effect but the presence of fantasy. The real First Amendment issue here is whether the amendment is implicated when government deliberately interferes with efforts to imagine and describe other worlds.”
Again, Koppelman’s observations are phenomenological plausible, if not correct.
But even if pornography has cognitive content, this is not the end of the matter, because the First Amendment protection of ideas is not absolute, and as far as obscenity jurisprudence is concerned, the relevant standard was set out in Miller v. California, which states:
“The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.”
But what exactly is the point of the first two prongs (a and b) if it is only the third prong that is the only sufficient one? After all, if something meets the test of the third prong, it is sufficiently established that it falls under First Amendment protection. I just think it is a weird way of stating things: instead of saying what qualifies for protection, the Supreme Court instead states what does not.
If only the third prong test is sufficient to establish protection under the First Amendment, then this puts judges in a position of aestheticians, a role which they are not familiar with. As Koppelman says, “The adjudicating of questions of high aesthetic theory is a strange task to assign to courts.”
For this reason, I have never been satisfied with the Miller test: what qualifications and/or expertise, if any, does a judge have in finding that Lady Chatterley’s Lover is protected and Deep Throat is not? Note, however, that I am not making any claims about the objective aesthetic qualities of either. I do not need to maintain that Lady Chatterley’s Lover and Deep Throat are of equal aesthetic value; all I am doing is making an argument that courts and judges are not the appropriate institutions and actors to be making aesthetic judgments.
But this is also not to say that courts have no role in regulating pornography, but the standards by which pornography is regulated should not be an aesthetic one, for the reasons that I’ve outlined. Rather, the standards should be consequentialist: that is, pornography is/ought to be regulated based on whether it produces consequences that the state has a legitimate interest in.
For example, I think there is a plausible prima facie case for regulating pornography if its production involves law-breaking: i.e., employing under-age actors, coercion, so and so forth. And of course this is already the case. A second example would be regulating pornography because consumption of pornography would lead to socially harmful consequences that the state has a legitimate interest in preventing: i.e., increased chances of sexual assault/abuse, psychological damages, so and so on.
These standards would of course have to rest on very sound empirical basis: they must be supported by sound science and research. So it would not be enough to regulate pornography on mere assertion or insinuation, for example, that porn-consumption leads to a rise in sexual abuse. This claim would have to be backed up by rigorous scientific studies.
A rigorous consequentialist test for regulating pornography has the advantage of avoiding making courts aestheticians, like Miller does. It would not put judges in the role of having to adjudicate between competing metaphysical and aesthetic theories of pornography. Instead, all judges would have to do is to look at whether specific assertions about the consequences of producing and/or consuming pornography.
One objection to the consequentialist view might be that it really doesn’t make the judge’s job any easier: instead of having to adjudicate between competing aesthetic claims, the judge would now have to adjudicate between competing scientific claims. In this sense, the consequentialist test is just shifting a difficult decision to another sphere. What I want to say is that while it is difficult for judges to adjudicate between competing scientific assertions, surely this particular adjudication is easier than adjudicating between competing aesthetic claims for the reason that at least in science, a consensus about fact is conceivable (or at least more conceivable) than a consensus about facts in aesthetics (if there are such things as aesthetic “facts”).
So in the end, I want to argue that judges are ill-equipped to answer the question of “what is pornography.” Rather, they should try to answer the question “what does pornography do?”