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Saturday, October 09, 2010

The Progressive Commitment to Pornography

In a previous post, I speculated briefly about the nature and strength of "progressive" legal theory, and the absence of any powerful "counter-progressive" alternatives.  But I noticed the following line in Dahlia Lithwick's review of the recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, in a section where Lithwick assures the reader that this book is no hagiography: 

"Anyone who wants their liberal heroes to hold bone-deep progressive views will be frustrated by a Brennan who hated pornography but ruled it was permissible, and disapproved of abortion but protected it."

I had not realized that progressives were full-bloodedly committed to the wondrous virtues of pornography and abortion -- not just that they deserve constitutional protection, but that they are "bone-deep" foundational goods.  Ahhh, pornography.  Perhaps this is something about which counter-Progressives will want to reflect. 

Posted by Marc DeGirolami on October 9, 2010 at 10:04 AM | Permalink


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I don't think Lithwick's comment is at all surprising, and it is at least more honest than the belief that one can be "neutral" about any subject in morality.

That is why until I read deeper into Sam's posts did I realize that he subscribed to this view. I saw this comment, and thought it was supposed to be ironic: "I don't formulate moral positions about various aspects of other people's behavior - not even about aspects that I know some people consider to be an appropriate subject for moralizing."

Because of course, to the person who expresses that something is an appropriate subject for moralizing, a statement of neutrality is a substantive position of the first-order.

The whole sphere of human activity is an "appropriate subject for moralizing," because there is no sphere of human activity which exists in isolation. To explicitly state that pornography is permissible is to encourage its use. Silence on the issue where it exists as a phenomenon is approval. Silence where it does not exist is disapproval.

Thus, the mere fact that we still talk about the legality of pornography is evidence that it is approved and disapproved, that there is no consensus on the matter. And my speaking in terms of "talking about" should help explain why Sam does not think that one must have a moral opinion on everything. Simply: there are things that we do without thinking; our action is the approval. Sure, one does not need to "talk about" every moral issue, and in that regard we don't need to hold our moral opinions in the front of our heads on every subject.

But our activity (or "inactivity") indicates our moral opinion on a subject, and nothing is left unsaid.

Posted by: AndyK | Oct 11, 2010 4:36:12 PM

Sam, thanks to you for responding.

I guess we just have a disagreement about the equivalence of various sorts of moral positions. I don't want to think about mousetraps (notwithstanding that I think your position interesting); I want to think about the regulation of abortion and pornography, which involves (in my view) much more serious and far-reaching sorts of social harms (as much as I don't like to kill mice, and as much as I'm sure the mice don't like to be killed).

I'm very, very far from an expert in moral philosophy. But for me, the more, as you say, fraught an issue becomes -- the more far-reaching its social implications -- the greater the obligation of people to confront (as much as they can) the deep reasons for the ways that they feel, and the deep reasons that people who take a contrary view do so as well. My own view is that recourse to a single, overarching value as a method of avoiding that process of constant struggle as to particulars is not the best course. My own view is also that not all moral issues are created equal, and for the serious ones (which, in my own work, include the question of religious liberty), single-value resolutions without an inquiry into particulars are also not the best course. That does not in the least mean I am ascribing any bad faith to your view -- I hope you can agree that I am not. I'm simply saying that certain kinds of issues, implicating certain kinds of moral concerns, are more important than others, and that for those, the deeper the inquiry (even for we non-experts), the better.

Posted by: Marc DeGirolami | Oct 11, 2010 12:56:45 PM

Marc, thanks for your response. I will not try to delve into every aspect of moral philosophy, since that is not a thing I consider myself an expert in. I do think, however, that everybody has some topics where, after thinking a bit about the question of harms and benefits vs. autonomy, they say, "well, that's just not a thing where I am nearly sure enough to try to impose my hunches on everybody else, or even to demand that other people spend time worrying through the problem that I perceive."

It is useful to try to think of examples that don't involve sex, since sex-regulation is so fraught with particular disputed conceptions of morality, gender roles, societal control, etc. Here's an example: mouse traps. I personally have qualms about mouse traps. I see some benefits (better not to have mice in your house), but I also see harms to the mouse and to the psyche of the person who squishes the mouse. I personally think the harms outweigh the benefits. But I know that reasonable people can disagree, and some reasonable people would think I'm a nut. Have you struggled to meet the arguments, to really inquire into the harms and benefits? I would guess (just a guess) not, since most people don't. Do I get to call upon you, as a show of good faith in your (presumed) lack of desire to regulate mousetraps, to demonstrate that you have thought about it deeply? I don't think so. I think that, by calling upon people to demonstrate that they have struggled through thinking more deeply about the things that you care about, you are trying to privilege your own preferences by calling them "morality" as though you get to decree what people ought to have to take more seriously.

Posted by: Sam Heldman | Oct 11, 2010 12:39:29 PM

Yes, I agree with that, and I'd want to see evidence that the person actually did struggle to meet those arguments (and I'm not sure I'd agree that they are purely empirical, as the identification of harms depends on conceptual as well as empirical claims, but that's another matter), rather than rest on a baseline, inviolable assumption that, whether or not those arguments have merit, the only thing that ought to have value as a moral matter for these sorts of issues is personal autonomy -- that it is (always) trumps (to be clear, I am not claiming that Sam's position rests on such an assumption).

Posted by: Marc DeGirolami | Oct 11, 2010 11:57:19 AM

Okay, all of that makes sense. But I take it, then, that somebody who disagrees as an empirical matter about the existence or prevalence of third-party-harms from pornography might well regard pornography as a matter of moral indifference-- as one more self-regarding aspect of an individual's sex life as to which it is pretty normal not to have a moral view. Right?

Posted by: WPB | Oct 11, 2010 11:43:33 AM

Will, I didn't say that personal autonomy is a non-factor when the question is what ought to be legally permissible. I'm sure that Justice Brennan believed in the importance of moral autonomy -- indeed, I'm sure it was one of the bases on which he overcame his own personal reservations about abortion eventually to champion abortion rights.

But the reason that he did so was not that he was indifferent as a personal matter to these practices; indeed, it was *in spite of* his indifference, not because of it, that the question of the state's involvement in these issues was complex for him. Autonomy absolutely does not strike me as "beyond the pale" when it comes to either abortion or pornography. Indeed, there are situations in which concerns of autonomy ought very much to matter (as they did to Justice Brennan).

What I object to is the belief that abortion and pornography are properly matters of personal moral indifference, and that in consequence the only thing we've got left to think valuable is autonomy. My reasons against being indifferent on the pornographic front largely are related to the social harms that I believe were well-stated up above-thread by Patrick. Again, that doesn't mean that I think autonomy concerns are irrelevant or even that they ought to lose in a particular case. I'm not in favor of a ban on all pornography (even if we were to set aside the speech issue).

But it does mean that I see the value of autonomy in serious and often irreconcilable tension with other social values to which I'm also committed. That is, I'm not indifferent; I'm highly invested in the process of sorting out the struggle between competing values, something which (I think) someone who was indifferent to those competing values wouldn't care about (autonomy, or, in this case, sexual freedom being the master value -- the only value -- in this realm).

Posted by: Marc DeGirolami | Oct 11, 2010 11:26:41 AM


I'm intrigued, and a little surprised, that autonomy on matters of abortion or pornography strikes you as beyond the pale, compared to autonomy on matters of religious practice. (And what if one's own practices with respect to abortion or pornography come from one's religious convictions?)

But I'm even more surprised that you classify "someone's choice of sexual partner" as a "matte[r] about which we might be rightly indifferent." As I'm sure you know, many people-- especially those with a "progressive" bent on these questions-- think of freedom with respect to pornography, abortion, and reproduction as aspects of sexual freedom. And you apparently agree that some sexual choices (such as choice of sexual partner) might be part of a sphere of autonomy.

So even if you don't think that the sphere of sexual autonomy should be large enough to include abortion or pornography, why is it so "deeply morally problematic" for others to think those activities are within that sphere? (Any talk of morality and abortion of course raises the question of third-party harms; but many people who see themselves as "progressives" on this issue believe there are no such third-party harms, a view that is surely sincere whether or not it is correct.)

Posted by: WPB | Oct 11, 2010 11:02:19 AM

Sam, I'm sorry to have come across as smug as well as dense -- let's lay that aside, if you agree.

I thought that a position of indifferentism was what you were advocating with respect to abortion and pornography. There are many matters about which we might be rightly indifferent -- the race of our next door neighbor, for example, or someone's choice of sexual partner. In fact, it might be better if we were indifferent than hold to any moral view about such matters. My interpretation of your statement that you simply haven't developed any personal, moral view about pornography and abortion seemed, to me, to be an example of indifferentism, so defined -- a consciously non-moral ("amoral") position with respect to these issues, one of neither approval nor disapproval.

The presumption behind legal non-interference here, as Will points out, is that it is right that in such cases, there be a sphere of autonomy in which people can do what they like without interference by the state.

But that view -- the view of moral indifference and a consequent zone of absolute autonomy -- as respects abortion and pornography seems deeply problematic to me. It means that one keeps the state out simply because one does not care at all about what people do when it comes to these two questions. So while I now recognize that this view is not the same as Justice Brennan's, it leaves the truly committed "progressive" view, as Lithwick presented it, with two possibilities:

1. The true progressive (unlike Justice Brennan) is indifferent as a personal (or moral) matter to the issues of abortion and pornography, and wants to preserve this realm for pure individual choice (in the same way that one is indifferent about people's religious convictions, and wants to preserve a zone of individual moral choice there); or

2. The true progressive would (unlike Justice Brennan) actually affirm that abortion and pornography are (or can be) goods, and therefore entitled to the same zone of privacy as other affirmative goods.

I will admit to finding the second possibility more objectionable than the first, and it's the possibility that I raised in the initial post, but (in all modesty, and without trying, at least consciously, to sound self-righteous) I find the first possibility to be deeply morally problematic as well. To be completely indifferent, as a personal matter, to the question of abortion or the use of pornography in the same way as one is indifferent, as a personal matter, to others' religious commitments, just seems like treating dissimilar things similarly. Here, I agree wholeheartedly with Patrick above: these questions, and the issue of their regulation, are ones which do cry out for justification of one kind or another, not indifference. And I really don't think that there are Supreme Court justices who simply don't care -- are totally indifferent -- to at least those two particular questions of morality (but I admit that Will may be right here).

Again, my apologies for the huffiness.

Posted by: Marc DeGirolami | Oct 11, 2010 10:45:23 AM

Labels are so very unhelpful. Everyone has their own opinions and I find labels less than useful, mostly distracting. Even self imposed ones. Perhaps it would be more helpful to ignore the labels and discuss the topic.

Posted by: C Anderson | Oct 11, 2010 10:28:00 AM

I'm sad to see Marc misinterpreting Sam's comment, and also sad to see Sam misinterpreting Marc's response as trolling. But I will try to contribute.

I find Sam's response not-at-all-unusual and am surprised that it has been so hard to understand. The example of the religious ritual seems like a good one: one can have what is essentially a meta-moral view, that it is morally good (not just legally good) for people to have a sphere of autonomy over a particular set of issues and practices. And one can believe in such spheres of autonomy without forming a moral view about how people ought to exercise that autonomy, and without being an "amoral indifferentist" outside of those limited spheres of autonomy.

This view as I have expressed may or may not be exactly the same as Sam's, and it probably was not the same as Justice Brennan's, but it is an incredibly common premise of many forms of modern liberalism, which contains a philosophical commitment to pluralism not just as a legal matter but as a moral one. And I bet there are Supreme Court justices who share it.

Posted by: WPB | Oct 11, 2010 10:02:40 AM

I now see that the mistake was all mine, thinking this post might be anything other than a troll, and that you might be a fellow interested in friendly exchange of views. Please forgive the intrusion. But I assure you I do have moral opinions about all sorts of things, big and small, and am not an "amoral indifferentist" (cute term, you smug self-righteousnessist). It is just that I do not allow folks like you to dictate to me (or to dictate to Supreme Court Justices, for that matter) the list of things that must be treated as a moral issue.

Posted by: Sam Heldman | Oct 11, 2010 6:07:46 AM

Sam, my mistake. Your position is that because you are utterly indifferent to and have no "personal opinion" about abortion and pornography (and much else) as a moral matter -- because you don't attach any moral significance to these choices/practices -- these ought to be unregulated. And you are right to point out that amoral indifferentism is a possible variety of progressivism, though not one that is likely in a Supreme Court justice.

Posted by: Marc DeGirolami | Oct 10, 2010 10:48:46 PM

If it helps you to understand, consider an analogy to formal religious rituals (my thoughts about other people's devotion to various types of such things). I want people to have the legal right to do it. I think it is, even beyond that, nice that people get pleasure from it. I'm not looking to stop it, neither by law or persuasion. But I don't think it's a positive good, and I wouldn't be sad if everybody stopped doing it tomorrow.

Posted by: Sam Heldman | Oct 10, 2010 10:21:59 PM

I don't think I'm saying something obscure, so I don't know how you assume that my position (or the position of other people whose views i was hypothesizing) includes personal opposition to either abortion or pornography. It is not necessary, by any law of nature, for everyone to have a personal opinion about whether such things are good/moral/ok/whatever. I don't formulate moral positions about various aspects of other people's behavior - not even about aspects that I know some people consider to be an appropriate subject for moralizing.

Posted by: Sam Heldman | Oct 10, 2010 10:07:19 PM

Sam, thanks for your generosity. I intended the post to provoke at least a little bit, and I'm glad that it has.

But I'm less pleased about the substance of your post. I think there are three plausible positions in this dispute, none of which are (distinctly) yours. One can hold that abortion and pornography are morally objectionable as well as legally objectionable. Or, one can hold (with Justice Brennan) that abortion and pornography are morally objectionable but not legally objectionable. Or one can hold that abortion and pornography are neither morally nor legally objectionable. That last seems to me to be Lithwick's position (at least from the quote in the review), and one which she identifies with "bone-deep" progressives (I haven't seen anything in either your or anyone else's comment which interprets her quote differently).

Patrick O'Donnell has given his own sensible assessment, but your position seems to be that one can be for full legal protection of abortion and pornography, but also take the view that abortion and pornography are no one's business to approve or disapprove. Sure -- presumably that's a crucial reason that they ought to go unregulated -- because they are areas in which the state (i.e., all of us) has no business (no interest) in interfering. If we did have such an interest, then (I take it from the premises of your own intervention) we would have a reason to interfere.

That means that your position is identical to the position ascribed by Lithwick to Justice Brennan -- to be personally opposed to abortion and pornography, but to be committed to protecting the unrestricted right to abortion and pornography because the state has no (compelling, overriding, cognizable, etc.) interest in sticking its nose in the affairs of private citizens.

Posted by: Marc DeGirolami | Oct 10, 2010 9:17:56 PM


The model you rely on here seems rather solipsistic if not unrealistic (allowing, for example, negative liberty to be confused or conflated with licentiousness), politically and ethically speaking, for are we not assuming governance by concepts and conceptions having to do with intrinsic values, fundamental or axiomatic principles, private and public virtues, rights and duties, harms (including exploitation, domination, disadvantage and so on), the common or public good, and the Good in general? If so, the production and consumption of pornography and the provision of abortion are, in some profound sense, everyone's business, in our capacities as both (would-be moral) individuals and (would-be responsible) citizens. The legal protection, in other words, cries out for reasoned justification in a way that makes explicit its connection to the aforementioned cluster of concepts and thus minimally presumes, whatever the final or decisive legal justification, an articulation of something greater than an apologia for the preferences of the solitary, private consumer detached from his fellow human beings. The sundry beliefs and values explicitly or explicity found in ideologies, philosophies, and worldviews are all fraught with real world consequences in ways that matter.

Posted by: Patrick S. O'Donnell | Oct 10, 2010 7:34:23 PM

On the perhaps naive belief that the author of the post might be interested in a response, and not just trolling ...

One type of "progressive," at least, would go beyond thinking that abortion and pornography are legally protected, but would not be committed to a view that they are fantastic. This is the type of "progressive" who believes that whether somebody watches porn or has an abortion is none of that "progressive"'s business. It is possible to believe deeply in the "not only legally protected, but also not my (or your or Justice Brennan's) place to approve or disapprove" philosophy.

Posted by: Sam Heldman | Oct 10, 2010 5:43:44 PM

OSHA has the authority (if not the resources) to protect workers in the porn industry. I wish that it would.

I think the speech issue is a bit of a red herring. Yes, we need to set limits on this stuff, especially where it's non-consensual (because of age, drugs, coercion, etc.) On the other hand, the further we drive porn underground, the less we can protect the sex workers who are being exploited and abused.

Posted by: Melissa | Oct 10, 2010 1:20:57 PM


I'm not well-versed in the legal literature and thus finer points of debate on this topic but I suppose it's fair to say that I lean in the direction of a Catharine MacKinnon more than the "civil libertarians." However, I would not be happy to find "the law" as the sole or foremost means by which we might counter the harms caused by pornography. And, as you appreciate, I can't speak for progressives generally (if only because I'm an avowed member of the 'religious Left'), for we clearly disagree amongst ourselves about such things (as we do, for instance, on the topic of 'veiling' by Muslims).

Indeed, I've always imagined a fairly variegated Left (hence communists, democratic socialists, populists, anarchists, the New Left, Greens, predmominantly 'political' and 'cultural' Leftists, and so forth and so on), at least in this country, committed to some core values and principles having to do with freedom, equality (freedom and equality being intrinsically and richly related to each other) and (especially distributive) justice, in addition to a firm commitment to the value of democracy, both political and economic. As to the precise meaning of those values and principles, their specific ramifications and implications, and the relation of means to ends in their realization, here the descent and distance from the universal and abstract to the concrete, for better and worse, makes for difference and plurality, for movements of both resistance and liberation, and a dialectic of individual and collective self-determination.

So, the short answer to your question is (a qualified) yes.

Posted by: Patrick S. O'Donnell | Oct 10, 2010 12:52:12 PM

Thanks, Patrick. Given your views of the great harms involved, would you go as far as to say that a progressive ought to be inclined to extend less legal protection for pornography than is now the rule? Or, at least, would you do so?

Posted by: Marc DeGirolami | Oct 10, 2010 6:29:17 AM

I fancy myself a (to the marrow) "progressive," and my views on pornography are fairly well captured by Gail Dines, author of Pornland: How Porn Has Highjacked Our Sexuality (2010):

Please see here: http://www.newleftproject.org/index.php/site/article_comments/living_in_a_porn_culture/

and here: http://www.newleftproject.org/index.php/site/article_comments/pornography_and_the_industrialisation_of_sex/

Posted by: Patrick S. O'Donnell | Oct 10, 2010 3:28:48 AM

Joe, I'm not sure I see how commitment to "the availability" of abortion differs from "protect[ing]" the right to an abortion, at least insofar as Justice Brennan would have extended that protection (he was not around for the developments in Casey). From my (somewhat rusty) memory, Brennan's reasoning in Eisenstadt was adopted by Justice Blackmun in Roe. He dissented, I believe, in Planned P'Hood v. Ashcroft, Beal v. Doe (arguing that elective abortions should be funded by the state), and Harris v. McRae, and was in the majority in Thornburgh and the Akron case. I can think of few Supreme Court justices who were more in favor of abortion as a policy for those that desired it.

In addition, I think the fairer reading of Lithwick's quote is that a "deep-boned" progressive (unlike Justice Brennan) would approve of abortion as a personal, moral matter, not just as a legal matter.

Posted by: Marc DeGirolami | Oct 9, 2010 5:06:05 PM

I don't know about pornography -- and there have certainly been a lot of liberals opposed to it on feminist grounds despite the free-speech issue -- but commitment to the availability of abortion as a policy and not merely constitutional matter is certainly important to a lot of progressives.

Posted by: joe (accidental blogger) | Oct 9, 2010 4:27:48 PM

Actually it is only hard core pornography which is "bone-deep".

Posted by: John | Oct 9, 2010 10:54:27 AM

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