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Sunday, February 11, 2018

Ross Douthat on banning pornography

In the New York Times, Ross Douthat has a column contending that we should "ban" hard-core pornography.  Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material, my sense (and what I tell my Freedom of Speech students) is that, practically speaking -- because of the ubiquity of and ease of accessing online pornography, because of prosecutors' resource-allocation decisions, etc. -- pornography is, in practice, both unregulated and unregulatable (by the government, anyway -- employers, universities, etc., might be a different story).

I suspect (but maybe I'm wrong!) most of us think Douthat is mistaken.  I admit, my own view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school-ACLU-type, thrill-to-the-rhetoric-in-Barnette libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses and, in a free society, the remedy for bad speech is good speech.  I hold this view (which, it seems to me, the Court's precedents support) not so much because I think it is compelled, or even very strongly supported, by the First (or the Fourteenth) Amendment's original public meaning but because my intuition is that, all things considered, it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that will be permitted and speech that is not.

I admit, though, that I'm not and have never been entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech").  Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me."  I don't believe this, though.  Speech causes "harms" to others, to the community, to the self, and to the moral ecosystem.  The freedom of speech, as we understand it, has costs.  What's more, there is no reason to think that these harms and costs are distributed in an equitable way or that they are borne by those who benefit the most from, or are best able to protect themselves in, a libertarian speech regime.  Still, my well-grounded confidence that the power to regulate speech would be abused (e.g., it would be employed overconfidently in the service of the arc of "history") makes me reluctant to depart from the near-absolutist position.

And yet:  I agree that pornography is both immoral and harmful, including in the ways Douthat discusses.  (It seems to me that the scathing piece Douthat wrote after Hugh Hefner's death was spot on.  Hefner was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.")  It's increasingly difficult for me to resist the suggestion that it should, at least, be regulated more than it is -- or, at least, it should be marginalized and disapproved more than it currently is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion might not actually be as elusive as my fellow near-absolutists warn.  

Or . . . maybe not.  Still, I can't disagree with Douthat that there's something worrisome, and sad, when the New York Times Magazine is suggesting ways to teach kids "critical thinking" and self-esteem-preserving techniques with respect to the massive amounts of online pornography they are viewing, by themselves.

Posted by Rick Garnett on February 11, 2018 at 02:04 PM in First Amendment, Rick Garnett | Permalink

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