Ruwen Ogien: Penser la pornographie (Paris, Presses Universitaires de France, 2003) Many in the English speaking world who write in defense of pornography automatically assume the jolly defiant tone of the journalistic bon gaillard. And there’s nothing wrong with that especially if the tone is matched with solid argument and serious intent. Nevertheless Ogien’s sober approach is helpful in framing the pro-pornography argument, particularly since the terms of his discussion are set by the prevailing liberal theory of justice. The result is a demonstration of the difficulty involved in trying to enact anti-pornographic statutes solely in terms of equal justice without employing concepts from some (arbitrary) moral canon.

Here are summaries of some of Ogien’s principal arguments along with comments of my own either adding to what he says or correcting it where I believe it is in error.

I. The Arguments:

1. Hostility to pornography proceeds from two universalizing assumptions. The first, often but not always associated with political conservatives, is the protection of children. The second, often but not always associated with the political left, is the protection of women. The political left and the political right draw two mutually inconsistent consequences regarding the harmful effect of pornography on women. The right asserts or assumes that pornography subverts the family and demeans the proper role of the female as homemaker and mother. The political left asserts or assumes that pornography consecrates the perception of women as inferior to men and so enslaves them to traditional occupations such as housekeeping and motherhood. Obviously pornography cannot do both, or rather both cannot be essential social results of pornography.

2. There is no moral distinction between the erotic, which is considered by some to be acceptable, and the pornographic. Attempts at defining a difference (such as representation of non-erect vs. erect penises) fail. If we assume a minimalist ethics (to be defined), pornography inspires no moral issues that do not also arise from eroticism. Consequently there are no (minimalist) moral reasons to disapprove of pornography.

3. Ogien assumes minimalist ethics as the basis of his argument. This assumption is justified because the majority of antipornography statutes, particularly from the political left, also subscribe to minimalist ethics either explicitly as a justification for the new law or implicitly because of the judicial framework in which they are cast.  A minimalist ethics comprises three principles or injunctions: 1) Remain neutral with respect to substantialist conceptions of the good. 2) Avoid causing harm to others. 3) Give equal value to everyone’s opinions and interests. These principles have been implicitly adopted by contemporary democratic societies, which have on purely pragmatic grounds (civil peace and social stability) rejected wars of morality, particularly with regard to sexual morality, after having already rejected religious wars. Moralism or the belief in the superiority of a substantive concept of the good is inconsistent with minimalist ethics. But criminalization of pornography constitutes a form of moralism.

4. Pornophobic Argument: As it is currently produced and distributed pornography involves socially repugnant practices: exploitation, militant misogyny, unregulated pursuit of profits on the part of producers and distributors. Ogien: 1) Conditions such as these are not unique to pornography but can be found in other industries such as toy manufacturing. 2) The argument is not necessarily true. 3) Even if the argument were true, the conclusion could just as well be to ameliorate the conditions of labor in pornography instead of eliminating pornography. (I add: In recent years the conditions of labor in pornography have improved so much that it is now one of the most lucrative and desirable professional choices for young women.)

5. We can distinguish between conservative and liberal pornophobia. Conservative pornophobia endorses a substantive conception of good and evil and the application of that conception to the passage of laws. Liberals reject the notion that laws should be passed to enforce a substantive concept of good behavior. The operative legal framework is justice and not morality. However, liberal pornophobes consistently contradict this basic principle in their attacks on pornography.  For example, 1) The liberal argument that pornography takes love out of sexuality relies on a particular substantive conception of sexual good (viz. only sex with love is good). 2) The liberals’ use of anecdotal or research material  to demonstrate the psychological damage of pornography is in conflict with the liberal position that deterministic conclusions in the social sciences are to be rejected when they conflict with the basic principle of freedom of choice. 3) The liberal argument that women, children and the underprivileged are particularly susceptible to damage from pornography conflicts with the fundamental liberal principle that no part of society (in this case anyone who is not an economically secure adult white male) is to be regarded as occupying a privileged position as far as justice is concerned. 4) The liberal acceptance of the prohibition of pornography to minors conflicts with the principles that minors possess certain civil rights. 5) The liberal principle of clear argument is violated when liberals confound pornography and violence or psychological and ideological consequences. The only avenue open for a liberal critique of pornography is to show that pornography is in conflict with basic liberal principles such as neutrality with regard to substantive concepts of sexual good or the principle of placing equal value on the interests and opinions of all members of society. It is impossible to imagine how that could be accomplished.

6. “Pornography” must be defined in order to enact a successful anti-pornographic statute.  Philosophers have proposed the following criteria: 1) Authorial intention to sexually stimulate the consumer. 2) Consumer reactions, positive or negative. 3) Reactions by non-consumers. 3) Stylistic clues such as non-simulated representation of sexual activity. (I add: Outside the realm of live performance, this has become possible only with the invention of photography.) 4) Narrative clues such as the dehumanization or objectification of the performers. It is, however, a philosophical imperative to distinguish between identifying and (morally) judging pornography.

7. It may be impossible to define, i.e. to establish necessary and sufficient conditions for pornography. The criterion of authorial intention fails because some works of art are pornographic although their authors did not intend to arouse sexual excitement, while others are not pornographic despite the author’s intent to arouse sexually. The criterion of rational presumption that certain works will incite sexually pleasurable reactions fails because of variations in fact and over time in the way individuals respond to various works of art. The much used distinction between the erotic and the pornographic expresses no more than a value judgment on the part of those who subscribe to that distinction. The significance of this problem of definition lies in the fact that modern pornophobes admit that there are acceptable forms of sexually stimulating art and literature. It is what distinguishes pornography that must make it unacceptable, but the distinction is difficult if not impossible to establish.

8. Age limits for access to pornography are arbitrary and do not reflect any real susceptibility to harm at a given age. In France the age of sexual consent is fifteen but the pornography is forbidden to teenagers under the age of eighteen. This recalls a similar arbitrary standard on the part of the (Nazi collaborationist) Vichy government that retained the heterosexual age of consent at eleven years (as had been established under the Penal Code of 1808) but set the homosexual age of consent at eighteen years. Other legal distinctions between what constitutes glamour, eroticism, soft core pornography and hard core pornography are equally arbitrary and without basis in psychological fact. For example, in France cinematic long shots are legally considered glamour photography while close-ups constitute hardcore pornography. But it is impossible to distinguish clearly between long shots and close-ups. Another French criterion that six scenes or more of simulated sex in a film constitutes hard core pornography is equally absurd. (I add: Distinctions like these are strategically required because without them all material or activity involving sexuality could not on philosophical grounds be excluded from prohibition. Examples include revealing clothing, night clubs and much advertising that doesn’t involve nudity. This consequence would be socially unacceptable in any but the most repressive societies and certainly not in mainstream Western society as it is presently constituted).

9. Reports used by politicians to justify the censorship of pornography do not satisfy the requirements of scientific rigor. The conclusions are not research or experimental results; they are opinions expressed by experts taken from personal experiences with pornography and reactions from small, homogeneous and largely unrepresentative samples. Systematic testing is not undertaken and rival hypotheses are not entertained.

10. The Andrea Dworkin model statute comes down to defining pornography as any representation that associates the degradation of women with sexual excitement. The failures of this definition are manifest. It does not except works of literature and the visual arts. It does not take authorial intention into account. It encompasses religious writings that assert the subjugation of women.  By adding sexual excitement and the mutual consent of the partners to her definition, Dworkin manages to include non-violent erotic material but exclude violent rape scenes.

11. The aggressive and abusive tone assumed by Dworkin and McKinnon with regard to pornography imply that they are self-interested spokespersons for what is supposed to be a non-moralistic approach. Their opinions may not have the objectivity of married white male job holders. (I qualify: There may not really be such a thing as a non-self-interested position even in the context of arbitrating between conflicting rights.)

12. Dworkin type pornophobic strategies rely on utilizing the principles of the liberal state to make their case. Instead of asserting that pornography violates a mythical public morality, Dworkin-style arguments assert that pornography violates the civil rights of some parts of the civil population. They rely on concepts of justice instead of morality. In this respect they apparently subscribe to ethical minimalism.

13. In France Dworkin style legislation has taken the form of replacing the concept of “outrage to morals” (outrage aux bonnes moeurs) with that of a violation of certain segments of the population. The segment of choice is minors. If a work (of art) violates (the rights of) minors, then that work may be deemed illegal. The emphasis shifts from the illegality residing in the content of the work alone to the negative effect that content may have on minors. However, this verbal change may not, without a further precision of what constitutes pornography, have any practical consequences. Nothing in such legislation in fact prevents a judge from continuing to interpret anything that he feels constitutes an outrage to morals as ipso facto doing violence to minors. Indeed the concept of violation of minors may offer less latitude for a liberal interpretation than the overtly subjective estimation of moral outrage. Moreover, at the present level of technology, the criterion of accessibility to minors applies to nearly everything, implying that the criterion of accessibility to minors is ineffective in practice. For these reasons the notion of violation of rights is no more acceptable in a society that recognizes a multiplicity of ethical frameworks than is the notion of moral outrage itself.

14. The moral condemnation of pornography is based on an arbitrary model of the family and of sexuality. This model is intolerant of any deviation.

15. Attempts to find a social scientific basis for demonstrating the harm of pornography have failed. The Johnson Commission in fact found the only common background experiences among rapists comprised violent and repressive parents and a strongly puritanical attitude towards sexuality and female sexual freedom in particular. The two dissenting members of the Johnson Commission were a Catholic priest and an anti-porn crusader. The members of the contrarian Meese Commission were chosen on the basis of a litmus test of previous anti-pornographic activity. The witnesses chosen by these members were screened for the same prejudices as those held by the members themselves. Both members and researchers avowedly eschewed accurate peer-tested data in favor of “common sense” and “personal intuitions.” In point of fact anti-pornographic studies generally reach mutually self-contradictory conclusions. The first conclusion is that pornography raises the viewer’s tolerance for violence against women. The reason is that the viewer is progressively desensitized to sexual emotion (the cathartic reaction). The second conclusion is that the viewer of pornography so sexually excites the viewer that he is led to imitate the purportedly violent acts depicted (the mimetic reaction). The contradiction lies in the fact that a viewer cannot be both sexually anaesthetized and sexually aroused at the same time. Arbitrary refinement of the concepts of catharsis and mimesis as used here may mitigate the contradiction, but it does not alter the basic result that no causal relation, positive or negative, has been, nor probably could be, established between pornography and sexual violence. The idea that a case for or against pornography could be made on the basis of empirical research alone will have to be abandoned. (Recent studies indicate that exposure to pornography does not induce violent behavior: http://www.reason.com/news/show/123330.html (Cached copy)

16. Ogien does not subscribe to the view that there is an absolute right to freedom of expression or to privacy whatever may be the consequences of guaranteeing such an absolute right in practice. It is an open question, for example, whether legal restraints are advisable in case pornography can be shown in fact to lead to criminal behavior. But this is an open question and not a necessary conclusion. There may be evidence that reading the Bible, the Koran or even Dostoevsky could lead to criminal behavior, in which case the legality of those texts would be subject to the same open question.

17. Pornophobes have often been criticized for confusing artistic and literary representations of violence with pornography. Aside from the factual inaccuracies often involved in such a confusion, there is also a significant normative problem. Real violence is in most cases illegitimate and illegal. Real sexual behavior, however, is not. If it can be shown that representations of violence lead to imitative violent (that is, illegal) behavior, then a case could be made against such representations. However, imitations of actions in pornography are not illegal or illegitimate. So, since the analogy is faulty, proof that such imitations do occur, does not imply that the representations of sexual (that is, legal) behavior deserve prohibition.

18. A pornophobic argument is that pornography separates sexuality from love and thus causes psychological damage. However, it is not clear that anyone who holds that sexuality and love are distinct is thereby psychologically impaired. It is currently widely accepted that sexuality can legitimately be distinguished from procreation. Those who maintain that position are not considered psychologically impaired. It is equally legitimate to maintain that sexuality and love are distinct. Anyone who laments the absence of love in pornography is not stating a psychological fact so much as a moral judgment or moral regret. And the liberal state as currently conceived and constituted does not legislate morality.

19. Here are a few deficiencies exhibited by studies that try to find a link between pornography and (sexual) violence. 1) Controlled study is hindered by the inadvisability of exposing children to works that may, by one of the premises of the study, be harmful. 2) Statistical studies are, to say the least, unreliable. A rise or fall in the number of reported acts of sexual violence may not correspond to a real rise or fall in such acts. Factors such as a greater willingness on the part of victims or witnesses to report sexual violence could play a role as could the establishment of new bodies for receiving complaints, changes on the criteria of what constitutes an act of sexual violence, differences in the expectations on the part of law enforcement etc. 3) These studies exhibit the behavioristic fallacy, namely the assumption that an external stimulus acts directly on the mind without an intervening stage of interpretation. In the case of pornography such an intervening stage could include moral prejudices or pressures (I add: or signs of disapproval on the part of third parties). 4) It is fallacious to assume a relation of responsibility, or even a causal link, between the pornography industry and individual acts of sexual violence, even if exposure to pornography is evoked as a criminal defense. The assertion of such a link is directly analogous to an alcoholic casting blame on the wine industry as a whole. But the analogy breaks down even in the case of non case specific responsibility. The abundance of scenes of sexual violence on religious literature is a counter example. There are also many crimes of a sexual nature committed by individuals who have never been exposed to pornography. This shows that exposure to pornography is not a necessarily condition for the perpetration of sexually oriented violence. It is also not a sufficient condition. If so, then the members of pornography commissions would, due to their exposure to pornography, necessarily become violent sexual criminals. It is noteworthy that the sufficient condition criterion is never invoked in the case of female exposure to pornography.

20.  The Zillman-Bryant experiment is inconclusive and the published results were tainted by the prejudices of the researchers. For example, the statistical results were explained as resulting from both catharsis and from imitation although those two explanations are mutually contradictory. In addition, the recommendations for lesser sentences to be given to sexual offenders could as well be explained by greater compassion on the part of the respondents - an explanation that is routinely assumed, whether approvingly or disapprovingly, in cases that do not involve pornography. Ultimately when informed of the true intent of the experiment, the respondents did not feel that their recommendations had been influenced one way or another by viewing pornography. In addition, the fact that the respondents were compelled to watch pornography creates an artificial situation that is not duplicated outside the conduct of the experiment.

21. Statistical studies in Germany, Denmark, Sweden, the United States and most thoroughly in Japan and have shown that incidences of sexual violence have remained constant after the repeal of anti-pornographic laws (Such incidences may in fact have diminished in number given population growth and increased willingness to report sexual crimes during the periods studied). It should be noted, however, that even studies with these positive results are not conclusive. The criteria for determining actual increased exposure to pornography (as well as determining what constitutes a sexual crime) during the periods studied are difficult to select with confidence particularly when two distinct time periods are compared.

22. Attempts to assert a causal connection between exposure to pornography and incidences of sexual crimes, framed as they are in a post hoc manner, contained a logical fallacy. In particular, if the phenomena have any relation at all, the cause may be a common cause rather than a direct causal relation between the phenomena studied. For example, the liberalization of anti-pornographgic laws may cause both an increase in the consumption of pornography and a greater willingness to report sexual crimes without there being any causal relation between the consumption and the reporting.

23. Pornophobic propagandists have tacitly accepted the impossibility of proving either experimentally or statistically that exposure to pornography causes psychological damage. For that reason they have shifted the basis for interdiction from an unprovable claim of actual psychological harm to the area of civil rights. Their revised claim is that pornography violates the civil rights of certain population groups.

24. The reason that pornography is often not considered in the USA as a form of speech protected by the First Amendment is that it is not considered a form of assertive speech. It does not express a clearly articulated argument or an artistic intention of any kind. It is impossible, however, to make a distinction between pornography and erotic art. For this reason Dworkin and MacKinnon have attempted to define pornography as a type of hate speech. The courts ruled in 1983, however, that if it is any type of speech at all, including hate speech, then pornography is indeed protected under the First Amendment on those grounds as well as its status as art. (I add: Even if pornography is regarded as a type of non-speech activity, then it remains protected under the general right to privacy as has been embodied in the entire Bill of Rights and reaffirmed by the US Supreme Court.)

25. In response Dworkin and MacKinnon have proposed a new argument that pornography violates the Fourteenth Amendment equal protection provision. The argument is that pornography violates women’s rights to equal protection because it prohibits freedom of speech on the part of women. It denies women the right to speak freely. (This argument, which was immediately comprehensible only to its two authors, has been illustrated with an unintentionally hilarious example from the world of semiotico-sociological double talk. Fellatio, the argument runs, suppresses women’s freedom of speech because it blocks the functioning of their vocal chords. (It is unclear whether the suppression is supposed to occur literally while the actual performer is sucking dick or whether the dick sucking is supposed to function as a subliminal symbol of the proper role of women in society.) Unfortunately the same observation could be made about men in the act of fellatio. Indeed it could be made about the class of pizza-eating Americans in the act of eating pizza. (I add: The same response could be articulated against the broader equal protection argument. That is, by the same reasoning homosexual pornography denies men equal protection under the laws. Consequently, if both homosexual and heterosexual pornography are legal, then both men and women revert to being equally protected, arithmetically, so to speak.) ) The Dworkin-MacKinnon argument, to the extent that it is comprehensible, shifts the ground for censoring pornography from a concept of sexual good, i.e. from a moral basis, to the concept of equal protection, a concept that can be defined in terms of a theory of justice alone without appeal to extraneous moral concepts. Ironically the basis of the equal justice argument is that pornography denies women freedom of expression. The remedy is to deny pornographers freedom of expression in the form of freedom of speech. Moreover, the Dworkin-MacKinnon argument is fatally flawed. It seeks to argue not that pornography is a cause (one among many) of the subordination of women, but that it is a form of the subordination of women, it embodies suppression, so to speak. The idea is that pornography simply is a social injustice, rather than that it causes any adverse social consequences (an assertion that is almost impossible to prove and most likely false). But, in order to coherently state the view that pornography is a form of social subordination rather than a cause of social subordination, Dworkin and MacKinnon (or at least their more philosophically astute followers such as Rae Langton) misuse of the perhaps faulty philosophical theory of institutional speech acts. There are no grounds for assuming that pornographers are by nature males of authority or that viewers of pornography automatically invest these males with authority by virtue of watching pornography (I add: It is, of course, false that pornographic filmmakers and photographers are necessarily male or that the female performer is not as much a pornographer as the cameraman. The experience of the commercial porn industry and of amateur file sharing has taught us that the performers and the female performers in particular are as deeply involved in the pornographic assertion, if such there be, as any off scene personnel.) The assertion that pornographers have some sort of authority equivalent to a baptizing priest or a marrying judge is simply absurd. The nature of an institutional speech act is that it creates a social reality by dint of being uttered. If a qualified judge marries a couple, there is no room for further evidence as to whether they are truly married. On the other hand, under the best of circumstances and according to the description of Dworkin-MacKinnon and their offspring, pornography does not function in this way. At best it indirectly causes the occurrence of a state of affairs in society by influencing the beliefs and preferences of its viewers. Whether such a state of affairs actually did come about is a matter of empirical inquiry, as it is not following the marriage ceremony; the pornographic work did not create the state of affairs by dint of its creation (viz. utterance). Pornographic works are not institutional speech acts.

26. Another version of the same pornophobic argument is based on the distinction between the semantic or locutional aspect of speech acts and their pragmatic or illocutional aspect. The latter characterizes a speech act as an assertion, warning, prediction etc. independently of the semantic contact of the act. The pornophobic use of this theory asserts that, while pornography does not prohibit the speech act as a locution (i.e. it does not prohibit women from making assertions), it does prevent their locutions from possessing the illocutionary force intended by the utterer. That is, women may make an assertion, but their assertions are not treated seriously. Their speech acts are deprived of the illocutionary force of assertion. Women’s statements are belittled because pornography depicts them as meaning “Yes” when they say “No.” But the pornophobes who profess this theory provide no proof that pornography actually has this effect. For one thing many of the films in question cast the male performers in as belittling a light as the female performers; consequently the sexual discrimination argument fails. In addition, the pornophopbic thesis would have to be supported by a study of the films in question and their effects on viewers’ attitudes. Even if such a study were conducted, it could be open to multiple interpretations and viewers’ testimonials could be unreliable. For example, if a contrarian assumption is maintained to the effect that at least a portion of the sexual pleasure derived from viewing pornography is a homosexual pleasure derived from watching the male performers, it is conceivable that viewers interviewed for a study to verify that assumption would deny that they felt homosexual pleasure. Their testimonials could not be used to either confirm or deny the contrarian thesis. Again, an equally or perhaps better supported thesis has been proposed within the same conceptual context of diminution or enhancement of the illocutionary force of assertions made by women to the effect that pornography enhances the authority and validity of female discourse. In the first place, women are the stars of pornographic films. Secondly there is a sometimes explicit rejection of paternalism. In fact the following effects have been found in pornography which enhance a woman’s freedom of expression: 1) Pornography makes available information about sexual practices that could be suppressed without the information provided by pornography. 2) Pornography actually encourages women and others to report sexual crimes. Countries where pornography is available have a higher incidence of the reporting of violent sexual crimes than countries where it is not available. 3) Pornography legitimizes paid sexual work. 4) Pornography gives women the capacity to contribute to and even control the content of the works. Although these pornophilic assertions may be as difficult to prove as their pornophobic counterparts, the two are equally plausible. And one consequence of the plausibility of the pornophilic position is that the assimilation of pornography to racist or homophobic assertions collapses. No rational case, for example, has been made that racism benefits blacks or anti-semitism benefits Jews. (There is a difference between a minority member who professes racist attitudes towards his own race and the assertion that those attitudes leads to social benefits for the members of that race. Such racist blacks as do exist use their racist attitudes to justify the continual suppression of blacks.) However, Strossen and McEllroy have made compelling cases for the social benefits of pornography. Pornophobes could assert that Strossen-McEllroy type arguments are wrong, that their proponents are alienated or manipulated or motivated by a self-interested alliance with their oppressors. That assertion may be true, but it has not been proven. There is a difference between claiming and demonstrating female pornophilic alienation. The tautologous claim that a woman’s defense of pornography is a sign of mental alienation and that therefore those who defend pornography are by definition mentally alienated is obviously faulty. It fails particularly in the case of those jurists and academics who have no relations to the commercial pornographic industry. It is in fact easier to make a case for mental alienation on the part of obsessive opponents of pornography. One could argue that their attitudes are pathological and stem from personal sexual dysfunctionality.

27. In fact opponents of pornography are themselves guilty of limiting the illocutionary validity of assertions made by individual women in that their arguments and attitudes are based on a pre-determination of what is beneficial to women. In the guise of promoting freedom of expression, they actually limit which womens’ claims about their sexual pleasure are to be taken as valid. It is a clear case of paternalism. It makes the contrary assumption that only when a woman says “No” is her assertion to be given full illocutionary value, but that in those cases when she says “Yes” she really means “No.”

28. The concept of human dignity has been introduced into French judicial theory in that “damage to human dignity” (atteinte à la dignité humaine)  can be considered a criminal offense.  It has replaced the concept of “outrage to (public) morals” (outrage aux bonnes moeurs) that had come to be considered a moral or religious notion not appropriate for a judicial system that was supposed to remain neutral with respect to particular moral systems. Clearly this is no more than a rewording of the original moral concept.

29. The theory behind the damage to human dignity concept incorporates a distinction between eroticism and pornography. Eroticism, the theory asserts, does not damage human dignity; pornography does. Erotic works use shadows, soft lighting, muted voices and softly suggestive language. They show faces. Pornography uses bright, harsh lighting, vulgar language and cuts off faces in favor of tight shots of genitals. The ultimate effect is that eroticism shows real people and attempts to acquaint us with their souls, while pornography reduces people to mechanical bodily parts. To use a term popular among philosophers, pornography “objectifies” the person. And this, the argument runs, is bad. However, there is a contradiction between the supposed prevalence of shadow and subdued lighting and the supposed willingness of eroticism to acquaint us with the person. (I add: The descriptions of pornographic works - at least those produced by the commercial pornography industry - as cutting off faces and not naming the performers is simply untrue; indeed the pornographic industry has discovered a marketing tool in the public’s interest in the lives and personalities of the performers.) Moreover, this view does not clearly specify the victims of supposed pornographic degradation. It is not a matter of indifference as to whether the victims are supposed to be the performers, the spectators, the fictional characters, a certain class of society or an abstract idea of human dignity. Within the framework of a liberal theory of justice, only the first, the performers can legitimately be singled out as victims; the other groups cannot be defined in such a way as to consider their degradation a criminal matter.

30. Nussbaum has proposed seven criteria for treating someone or something as an object: 1) instrumentality (the person is used as a tool) 2) lack of autonomy (the person does not choose) 3) inertia (the person is incapable of independent motion) 4) fungibility (persons are interchangeable) 5) violability (the person has no protective barriers 6) possessibility (the person can be bought and sold) 7) lack of subjectivity (the person has no experiences or emotions). The only things can satisfy all these conditions are absolutely inanimate objects like glass, rocks or chairs; no human or even animal can do so (I add: But Nussbaum does not argue that all seven criteria are necessary conditions for objectification. Some combination may be sufficient.) Indeed many of the criteria, such as inertia or lack of sensations, are completely missing in (I add: commercial) pornography which would be incomprehensible if the performers could not move or feel pleasure. Moreover, actual ethical theories reject some of these criteria as sufficient conditions. Utilitarians reject all the other criteria as long as the person’s capacity to feel pleasure or pain is retained. Some deontologists reject all the other criteria as long as the person’s capacity for autonomous movement is retained. Ultimately instrumentality and fungibility are not by themselves sufficient conditions to argue for a sort of objectification that damages human dignity. In addition, the distinction between eroticism and pornography leads to the classification of serious films (vide Breillat, Bonnelo etc.) not produced by the commercial pornography industry, as well as numerous anthropological documentaries,  as pornographic particularly with respect to such practices as not naming the characters and exclusively using tight shots of their genitals. Indeed the life sciences, the social sciences and a large part of the visual arts and museum photography and video qualify as pornographic and not erotic or satisfy some or all of Nussbaum’s criteria. Indeed if (commercial) pornography really were non-erotic or objectifying in the senses outlined above, then one could argue that it is part of an important contemporary intellectual and artistic movement.

31. There is a contradiction in the way children are characterized by those who claim that pornography harms children. On the one hand, children are depicted as the otherwise non-sexually motivated victims of manipulation by the pornographic industry; on the other, as attested by stories of children exchanging porn videos in the schoolyard, children are depicted as inherently lustful and in need of protection against their own inclinations. With respect to children younger than five years old, it is probably true that they are indifferent to pornography (I add: although obviously not indifferent to sexuality). In that case, there is no need to protect them against something they are not interested in. Above a certain age, children probably do show an inclination to view pornography that is contrary to the preferences of some adults. But the preferences of the latter are not supported by objective studies of the real preferences of older children and the effects those preferences may have on them. Instead disapproving adults resort to a sort of hysterical rhetoric that, by invoking an alienation invasion of “our” private space, is strikingly similar to anti-immigration rhetoric. Indeed reliance on the reaction of those most offended by pornography to the availability of pornographic images or texts in a public context (the Hicklin test), would, by equal treatment under the law, require the interdiction of the sort of vulgar and racist newspaper headlines that are common in the British yellow press and very visible on public streets. (Incidentally the seemingly reasonable plan to segregate pornography to certain protected areas would lead to the consequence of needlessly stigmatizing those who entered those areas, thereby denying them the rights guaranteed by minimalist ethics.)

32. If children did not express a preference for pornography, then it would be morally unjust to impose (as opposed to not denying) pornography on them. The moral problem arises in case children do enjoy pornography. Rugien establishes the following ground rules in addressing this issue: 1) Children’s preferences are not necessarily correct (Racist or sadistic opinions are good examples of unacceptable preferences on the part of children). 2) Sexual curiosity should be distinguished from pornography. There may be other ways of satisfying sexual curiosity than through pornography. 3) Assuming for the sake of argument that pornography is psychologically harmful to children, it is nevertheless not a given that they should be prohibited from viewing pornography. It may be that children should be taught to deal with their reactions as they are taught to deal with the fear of death or the spectacle of violence, especially if the result of banning pornography is an unacceptable diminution of civil liberties.

33. The rights of minors (formally defined as persons under the age of 18) were formally recognized in 1989 by the International Convention on the Rights of Children. These rights include freedom of thought, of religion and of conscience, the right to peaceful assembly, the right to privacy and the right to express an opinion regarding parental custody. In France these developments have led to a judicial dilemma. If minors are considered as endowed with the same rights as adults, then they should bear the same moral responsibilities as adults. Specifically they should be punished as adults if they are convicted of a crime. In France, with regard to pornography, this principle has been violated. Legally minors over the age of 13 are subject to adult criminal penalties if convicted of a crime, but their access to pornography is prohibited by law. If these minors have the degree to moral responsibility such that they do not merit special punishment, then they should be entitled to the same rights as adults, specifically the right of access to pornography.

34. One justification for banning children’s access to pornography is that pornography is harmful to children. In this regard we need to distinguish between psychological and ideological damage. Psychological damage could include loss of personal identity or an inability to distinguish fact from fiction. Ideological damage includes the assumption of a view of sexuality that some would disapprove (e.g. distinguishing between love and sexuality). The same confusion obtains between what is considered psychologically harmful and what is simply illegal. These latter two are obviously not the same. It is ideologically harmful, i.e. illegal, to avoid paying taxes. However, not paying taxes is not psychologically damaging. Indecent exposure is illegal but it is not psychologically damaging to any spectators. Laws against pornography are not and perhaps cannot be based on claims of psychological damage. They are products of public opinion alone and not from any conclusive psychological studies. No psychological studies to date have shown psychological damage to minors, and, given the illegality of pursuing controlled experiments, no experimental studies are likely to be forthcoming. Most conclusions have been hastily drawn from improper analogies to studies concerning the exposure of minors to fictional violence. Such studies as have been done have show at most that pornography reinforces the misogyny of some already predisposed to those views, but does not cause individuals not predisposed to become misogynist. (I add: Such effects are unlikely to be pornography specific. Exposure to works declaring the inferiority of women, such as the Bible, is likely to have the same effect.) Confusion between psychological and ideological harm is less tenable than confusion between illegality and psychological harm; those who argue that pornography instills a “false” idea of sexuality are guilty of such a confusion. A separate proof is required that an ideological contravention produces psychological damage. For example, distinguishing between sexuality and love is analogous to distinguishing between sexuality and procreation, an attitude that has come to be accepted as proper in contemporary society. Indeed legitimate questions can be raised as to whether minors who confound sexuality and love really do grow up to be happier adults. Any evidence so far forthcoming has tended to be anecdotal and journalistic instead of scientifically controlled. Without legitimate evidence it is simply a matter of opinion whether the effects of pornography are truly harmful to minors.

35. The right to access to information in a liberal society is not limited by age. Indirect evidence of this is that the First Amendment of the American Constitution does not include an age restriction. In fact the maturation process is benefited by exposure to (I add: which obviously does not mean unbalanced advocacy of) dangerous ideas, for such exposure can serve as a sort of vaccination, i.e. such dangerous ideas will not be new and surprising when the children become adults. It is for this reason that most material and activities such as might not meet with complete approval on the part of adults are not systematically forbidden to minors. There is no reason that minors’ access to pornography should not be at least as protected as their access to comic strips, video games and raves. In point of fact, what was justified on the basis of harm to minors with respect to each of these phenomena could be construed as a protection of the complaining adults against what was considered to be threatening behavior of the part of minors.  It is also a factual matter that as long as pornography is not forbidden to adults, minors will have a certain amount of access to it. But that in itself is not an argument to forbid adults’ access to pornography also; otherwise the sale of alcoholic beverages to adults would also have to be made illegal.

36. Assuming that pornography does not threaten any fundamental rights or directly cause any significant psychological or physical harm, then a continuing disapproval of pornography cannot occur within the terms of a minimalist ethics. Rather it must be the effect of a concept of sexual good. Such a concept could arise from religious or political convictions. For example, conservatives could view pornography as a threat to the family. Progressives could construe pornography as incorporating a view of human relations as uniquely hedonistic, disabused and instrumental. (I add by way of an aside: An objective sociological study of the behavior of participants in the commercial pornographic industry would probably reveal an unexpected conformity to contemporary society as a whole in matters of pair bonding and family formation.)

II. I add:

1. There is a psychological complex that drives pornophobic crusaders that must be as strong or nearly as strong as the complex that drives goddism. I speculate that at least one element of this complex is fear of rejection, i.e. fear of rejection by the chosen love object. This fear could be biologically determined. Or it could also be interpreted in a Sartrean way as a part of the drama of independent consciousness.

2. One argument against porn is that it psychologically damages women because it makes them feel inferior to the women depicted in porn. That can occur only if the women depicted in porn embody or illustrate a standard or ideal that is unattainable by the other group of woman who are psychologically damaged. I speculate that any standard or ideal that can be specified as exhibited by the women of porn is also exhibited in non-porn activities or social formations. As an example, if porn displays an ideal of female beauty, so does most advertising of women’s products and non-pornographic use of commercial models in publishing and advertising. Indeed the use of cosmetics, dieting, body sculpting workouts and plastic surgery presuppose such an ideal. Clearly if the embodiment of an unattainable ideal is a reason to ban porn, it is a reason to ban these other social formations also. (There is an interesting issue as to what degree beauty is an essential component of the psychological complex of object choice.)

3. We must of course distinguish between the rights issue and advisability issues. Briefly stated, the proposition “A is not advisable” does not entail “A should be prohibited” where “A” stands for some activity such as smoking, driving without a license, eating sausage or making porn. “Inadvisable” includes value predicates such as “immoral” “unethical” “unwise” etc., and “prohibited;” it may intersect, but it is not coextensive with “should be illegal.” Stated in this way, the distinction is clear, but, largely because of vagueness and confusion of presentation, many people may in individual cases, conclude that inadvisability by itself is a justification for prohibition.