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02/25/2010

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Patrick S. O'Donnell

I'll go out on a limb here and say my approach to the subject would begin by asking "what good is served by pornography?" (or, what purpose, end, or value does a 'right to pornography' serve?) I can't think of any.

On the other hand, determining where to draw the line between pornography and erotic art seems incredibly difficult. Many of us presumably know what is "hard-core smut" when we see it, but the line between erotica and pornography is rather fuzzy (especially in the visual arts where artists are often enchanted by the aesthetic equivalent of an 'ethic of transgression'). Criteria having to do with the degradation and dehumanization or exploitation of women (as in Canada?) can help, but I'm not sure if they can be given sufficient legally determinative meaning. Some well-known TV commercials, for example, depict women in degrading and dehumanizing ways: are they therefore pornographic? Perhaps, but I admit I haven't thought too much about this subject. One other concern: would regulation give rise to a robust "underground"/illegal pornographic industry?

In short, and given these reservations or qualifications, I suppose I'm a Millian on this question.

[And permit me to ask a question: what is YNCQJX5ZRKAG?!!! I recall seeing it in an earlier post as well and now I'm curious.]


Tim

Congratulations on a great new blog. This is my first time commenting here.

It seems to me that this question raises a rules/standards issue. To switch from a rule to a standard is of course to accept a higher cost of decision for a presumably lower error cost. Assume for sake of argument that access to pornography is not a good--that, in fact, permitting pornography to enter the marketplace of ideas (alongside presumptively "legitimate" articles of expression, whatever those may be, that truly vindicate our freedom-of-expression values) constitutes error. That is, assume arguendo that pornography is an identifiable category, a set comprising articles that our marketplace of ideas was not designed to admit, and that the legitimate ends sought to be achieved in such a marketplace are not advanced by admitting these articles.

I think the freedom-of-expression line is presently drawn in such a way as to constitute a rule that is reasonably susceptible to easy application in most cases, but the location of the line is such that it tolerates a near-100% error rate with respect to the admission of pornography into the speech market. That is, assuming articles of pornography are, in some sense, not the kind of speech we want to protect, they nevertheless enter our speech market simply because no one is presently empowered to adjudicate the question whether any particular article is or is not pornography and thereby police entry.

The above is obviously a bit of a caricature of the actual state of the law but, if a bit oversimplified, I do think it frames the theoretical issue nicely: If we agree that pornography is error, then we can only conclude that there is systemic bias built into our speech law. That is, the (presumptively illegitimate) article of pornography is given the benefit of every doubt concerning whether it counts as speech. Why might this be?

An obvious answer is that we have determined (albeit tacitly) that the cost of adjudicating cases would be more burdensome than the cost of admitting pornography into the speech market. Some of these decisional costs would be institutional, such as the difficulty courts would confront in case-by-case line drawing. But more immediately, a good bit of the decisional cost would be borne by the people themselves, who would necessarily have to make line-drawing decisions in order to comply with the law, but whose decisions would lack authority and therefore afford no defense in the event of prosecution. The latter situation of course describes the familiar concept of "chilling," and it's not terribly difficult to imagine the artist and would-be filmmaker hesitant to make a (presumptively legitimate) article of explicit erotica for the well-founded fear that it would be judged pornographic.

But there may be another concern as well, distinct from decisional cost. To illustrate, it is useful to consider the case of another systemic bias our legal system has established, this one in the criminal law. When civil litigants contend, say, for the proper apportionment of an existing loss (for an action sounding in tort), the party prevails who persuades the jury by "preponderance of the evidence." This makes sense: There is some irreversible damage out there in the world, and either D is at fault (in which case it would be unjust for P not to be made whole) or D is not at fault (in which case it would be unjust for D to be compelled to pay). To prefer one of these parties solely on the basis of its litigation posture would be perverse.

Contrast the situation in the criminal law where the State actually wishes to add to the harm in the world. Again, there is some irreversible damage out there in the world, but here the State proposes to damage someone else, say, by confinement to a cage. And, unlike the case of a civil suit, the respective "litigation postures" of these two parties are non-accidental; the State is always P. Here, the standard of decision becomes "reasonable doubt," a standard that is consciously calculated to disfavor P.

Unlike the pornography question, the systemic bias here does not implicate a rules/standards distinction (since both "preponderance" and "reasonable doubt" are standards), so the issue mustn't be one of decisional costs vs. error costs (since both systems will have high decisional costs). Instead, the issue must be that different kinds of error are differently valued. This concept is most famously articulated in the well-known Blackstone ratio, the notion that it is "better that ten guilty persons escape, than that one innocent suffer." This ratio is obviously arbitrary numerically, but still seems to captures a core truth--that, when it comes to criminal convictions, we see false positives as somehow costlier than false negatives, such that we try to err on the side of false negatives.

I think much the same can be said in the case of pornography. That is, I think many would subscribe to a sort of Blackstone ratio of number of (presumptively illegitimate) pornographic articles admitted into the marketplace to number of (presumptively legitimate) speech acts barred. I am not sure what that ratio would be but my own intuition is that it's much greater than 1. I confess some sympathy to the concept of erring on the side of suffering the proliferation of pornography, as opposed to erring on the side of silencing expression.

Of course none of this takes full account of the MacKinnon/Malamuth problems. Perhaps a critical mass of evidence could persuade me that the error costs of false negatives--of allowing pornography to enjoy the status of speech--is much higher than is ordinarily understood in terms of discrimination and violence against women. Although I am personally suspicious of the proposed causal relationship (my admittedly untutored belief is that more plausible explanations exist for why a disposition to violence would correlate to, without being caused by, pornography consumption), if I could be shown that pornography is indeed a substantial causal factor in discrimination and violence, I would be more amenable to letting society bear the decisional and false-positive costs of a pornography ban. That is, I could conceivably be moved from what you're calling the Kantian position to what you're calling the Millian--but only past some evidentiary tipping point. But I suppose this means that I am really a Millian already, in the sense that my decision is not categorical but consequentialist.

May I ask a question about the original post? I am afraid I did not understand the veil-of-ignorance reference. Initially you tell the students "the facts show significant harm" and get one vote; then, you say "they know pornography harms" and get a different vote. I am not sure I see the distinction, unless it is the distinction I drew in my previous paragraph--one based on the degree of confidence in the inference of a harmful relationship. But if that's the distinction it strikes me as less of a veil of ignorance and more of a god's-eye-view. Was hoping you might be able to clarify.

Again, great blog. Look forward to reading often.

Steve Shiffrin

Patrick, thanks for the cogent comments. The definitional issues are significant,but I think can be handled. I plan to discuss them in a subsequent post. The black market concern is I think the most serious concern about regulating pornography in that regulating it makes it more forbidden - more sexy. I will come back to that also in a later post. The code you refer to will have to remain a public mystery.
Steve

Steve Shiffrin

Tim, thanks so much for your comments and welcome to the blog. I think some of what you say implicates the vagueness question that I want to address later, but I entirely agree that the amount of chilling effect we should be prepared to accept depends upon the extent we agree with the research of Malamuth, Cheek and others and on how valuable we think the chilled speech might be (my Millian assumptions are clearly on the table).

If there is no significant harm there is no basis for regulation. I am persuaded by the research, however, that the harm is very serious. You ask about the veil of ignorance. So, borrowing from John Rawls and from Seana Shiffrins use of Rawls concept, I tell students to imagine that they are constructing a just society, that they do not know whether they will be a man or a woman in the society, and that they believe the research indicate that serious harm is done to women because of pornography (clearly Nadine Strossen does not). I ask the students whether, behind the veil of ignorance, they would construct a regime that would outlaw pornography. The reason the number favoring prohibition goes up is that the veil of ignorance forces empathy. The men are forced to imagine that they might be women, and, for some, it changes their vote.

Steve

Patrick S. O'Donnell

Steve,

I'm sure I'll learn much from the forthcoming posts. Thanks.

Tim,

You've raised yet more worthy points for consideration and I'm grateful for that as well. Did you mean to type "...a standard that is consciously calculated to disfavor P."?

Steve Shiffrin

Tim, thanks so much for your comments and welcome to the blog. I think some of what you say implicates the vagueness question that I want to address later, but I entirely agree that the amount of chilling effect we should be prepared to accept depends upon the extent we agree with the research of Malamuth, Cheek and others and on how valuable we think the chilled speech might be (my Millian assumptions are clearly on the table).

If there is no significant harm there is no basis for regulation. I am persuaded by the research, however, that the harm is very serious. You ask about the veil of ignorance. So, borrowing from John Rawls and from Seana Shiffrin's use of Rawls concept, I tell students to imagine that they are constructing a just society, that they do not know whether they will be a man or a woman in the society, and that they believe the research indicates that serious harm is done to women because of pornography (clearly Nadine Strossen does not). I ask the students whether, behind the veil of ignorance, they would construct a regime that would outlaw pornography. The reason the number favoring prohibition goes up is that the veil of ignorance forces empathy. The men are forced to imagine that they might be women, and, for some, it changes their vote.

Steve

Tim

Thanks, Steve, I too look forward to future posts.

Patrick, I did mean to type that. Do you disagree? All I meant was that reasonable doubt imposes a higher hurdle for State-P in the criminal context than preponderance imposes on non-State-P in the civil. Perhaps I phrased inelegantly?

Tim

P.S. Steve, Let me just add, thanks for the clarification on the veil--that makes perfect sense to me.

Patrick S. O'Donnell

Tim,

OK, I see: I wasn't quite sure what "disfavor" meant here.

J.R.

I absolutely think that pornography should be illegal. It is harmful to the individuals involved in making it, the people that view it and also our society as a whole. I wonder why OSHA is not involved in the safety of the workplace for pornographers. Desease, drugs, abuse and assaults take place within this industry. It seems OSHA should be involved to help prevent these health hazards from continuing. Also, are 'employee' rights being violated in any way at these work places?

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