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Contemporary Aspects of Censorship in Great Britain and the United States

How to do Things with Screens? Anti-Pornography Feminism and Censorship

Ce que font les images. Le féminisme anti-pornographie et la question de la censure
Denis Ramond

Résumés

Comment lutter contre certaines formes d’expression sans être qualifié de « moraliste » ? Afin de contourner l’importance capitale accordée par les juges américains à la liberté de parole, certaines féministes opposées à la pornographie ont utilisé la théorie des actes de parole pour démontrer les torts que les représentations pornographiques peuvent infliger aux femmes. Si la pornographie a le pouvoir d’agir de manière performative contre la parole des femmes, alors il devient possible de la combattre au nom de la liberté d’expression. Cet article tente de montrer que l’application de la théorie des actes de parole à la pornographie repose sur une confusion stratégique entre les acceptions juridique et linguistique du terme « speech ». Cependant, l’argument de ces féministes a le mérite de souligner les ambiguïtés de la notion de « freedom of speech » lorsqu’il s’agit de protéger des formes d’expression non discursives a priori, telles que les représentations pornographiques.

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  • 1 See Ruwen Ogien, Penser la Pornographie, Paris: Presses Universitaires de France, 2003; Michela Mar (...)

1I would like to introduce some issues that have come up with regard to pornography in the United States, especially over the last three decades. This subject has recently been discussed in France, with the publications of works by philosophers such as Ruwen Ogien and Michela Marzano, and of legal scholars such as Marcella Iacub.1 What these studies have in common is not that they consider pornography as an object of study in itself, but as a way to approach indirectly the issue of freedom of speech. The problem of pornography in the United States has spawned rather vast legal and philosophic debates about the foundations of freedom of speech. The history of censorship emphasizes an important issue: for a certain mode of expression to be censored, it must be perceived as being precisely other than just a mode of expression — either it is more than an expression (an act), or it is less (a mere sexual arousal, for example). The trivial subject of pornography gives rise to a number of related issues that are not trivial at all: how can one establish a distinction between facts and words? Between acts and language? Between the harmful and the harmless? In this perspective, I shall discuss the use of the theory of speech acts by American feminists to justify a limitation, or a restriction of pornography. But it seems that problems posed here are broad enough to be of use in other frameworks, and in other contexts.

2Before getting to the heart of the subject, I would like to return briefly to the philosophical background of freedom of speech in the United States. The First Amendment of the Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press […].”As is commonly said, this text (which is protected and defined by the Supreme Court) is venerated. It is studied in American universities as French students read Plato or Shakespeare, with a huge body of literature around it. The philosophy that mostly guides the interpretation of the First Amendment stems from the book On Liberty by John Stuart Mill. According to Mill, freedom of opinion, like freedom of conduct, must be highly promoted as it is the best way to find the truth and thus achieve the common good. Only direct harm provoked by certain words and acts might justify the intervention of the State (this is what some recent philosophers call “the harm principle”).

3These theories which still inspire the Supreme Court’s decisions are threefold. They are characterized by:

  • their rationalism. Freedom of speech means the freedom to communicate ideas and aims at finding the truth;

  • their neutrality. One cannot censor a speech on the grounds of its content, but only on the grounds of the direct harms it may cause: this is the “clear and present danger” doctrine; and

    • 2 See Justice Oliver Holmes’ dissent in Abrams v. United States, 250 US 616 (1919).

    their consequentialism. Freedom of speech must be protected due to the common good it may bring. What is at stake here is the realization of the liberal ideal of permanent discussion in which common good and truth rest on an economic conception of speech: the “free trade in ideas”.2

  • 3 Joseph Burstyn, Inc, v. Wilson, 343 US 495 (1952).
  • 4 Texas v. Johnson, 391 US 497 (1989).
  • 5 Miller v. California, 413 US 15 (1973).

4In this context, the Supreme Court has the responsibility for deciding and defining what belongs to the protected category of “speech”. It has gradually included artistic expressions such as film,3 and “expressive conduct”4 in this broad category. In the meantime, it has rejected certain categories of expression such as libel, and elaborated upon the unprotected category of obscenity. What does obscenity mean? The “Miller Test” (1973) gives three criteria for a work to be labeled as obscene: when it appeals to the prurient interest; when it depicts sexual conducts defined by state law; when it lacks real artistic, literary, political or scientific value. 5 The question that should now be raised is: what about pornography? Should it be classified as speech, or obscenity? Courts have stated it is a kind of speech, but this decision has been reached in a way which deserves to be told.

  • 6 Full text available at< http://www.nostatusquo.com ACLU/dworkin/other/ordinance /newday/AppD.htm, a (...)
  • 7 American Booksellers v. Hudnut, 475 US 1001 (1986).
  • 8 Idem.

5In 1983, two famous anti-pornography feminists, Andrea Dworkin and Catharine MacKinnon, wrote an ordinance6 for the city of Indianapolis giving women the right to institute legal proceedings against pornography producers and distributors. It was adopted by the city, but soon rejected by the Courts, in the Hudnut case.7 Judges agreed with the feminist premises that pornography might certainly depreciate women, subordinate them, and rank them as inferior beings and mere sexual objects. But, paradoxically, they added an important element: ”[T]his simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation.”8 Therefore, following the rationale of the First Amendment, one cannot censor speech on the grounds of its content, even though this content might depreciate half of the population.

6Seeing how mainstream pornography was finally labeled “speech” by the judges is necessary to make what follows understandable. Indeed, some anti-pornography feminists took advantage of the idea that pornography was now considered as speech in order to promote an alternative conception of censorship. They suggested that the performativity of pornography as speech could constitute an insidious kind of censorship itself, by silencing women’s voices. In particular they applied the notion of the “speech act”, developed by John Austin, to the field of pornography. I shall argue that such a use is highly questionable; but also that the liberal, classical defense of free speech has been weakened by the issue of pornography. Pornography may be an object that makes liberals challenge their own principles.

Seeing is Doing

7Anti-pornography feminists have to face a paradox: how can they justify a ban on pornography even though it has been considered as speech by the authorities and the courts? We must point out right now that this has both philosophical and strategic significance. Feminists first developed an alternative conception of censorship: according to some feminists, the restriction of pornography is legitimate precisely because pornography censors or silences women, preventing them from using their right to express their ideas as men do. This theory is neither moral, nor conservative; it rests on an egalitarian conception of freedom of speech that liberals could accept.

  • 9 John L. Austin, How to Do Things with Words, Oxford: Oxford University Press, 1975.

8In order to challenge the liberal conception of speech, some feminists have tried to point out the implications of John Austin’s theory of speech acts: the idea that language not only says or describes, but also performs acts. The liberal theory of freedom of speech protects the speaker. Each person has a right to express ideas, whatever they are; and the outcome is not certain; it depends on the “mental intermediation” of the listener. In his book How to Do Things with Words, Austin emphasizes three kinds of action words can perform: locution, illocution, and perlocution.9 For example, if I say to someone “Shoot her”:

91) I utter those words — this is the performance of saying something, and this is called “locution”;

102) I intend to give an order, this is called “illocution”, meaning a locution used with a certain force ;

  • 10 Jennifer Hornsby, “Feminism in Philosophy of Language: Communicative Speech Acts,” in Miranda Frick (...)

113) If the act is actually performed, that is to say, if the girl gets shot, this is “perlocution”, the consequence of my words. Beyond their mere meaning, words are here conceived as mainly active and able to construct social reality. We move from meaning to the effects of words, from a semantic form of language to a pragmatic form of expression. According to professor of philosophy Jennifer Hornsby, such a shift fits well with the feminists’ claims as it corresponds to a “feminist way of thinking” which allows us to understand how language may act, and finally generates male domination.10 And if speech is not only speech, but a speech act, there is an argument for censoring it.

  • 11 Rae Langton, Sexual Solipsism. Philosophical Essays on Pornography and Objectification. New York: O (...)
  • 12 For an overview of Catharine MacKinnon’s theories on pornography and domination, see her Feminism U (...)

12At this point, the question of the connection between such a theory of language and pornography may be raised. Anti-pornography feminists asserted that pornography contributes largely to the social construction of reality, and especially to the construction of women’s identity. In showing some scenes and pictures, pornography directly ranks women as inferior beings; it has an illocutory force. Rae Langton, who recently published a book tackling this topic, writes: “When you are ranked as worse, you are treated as worse and then really become worse.”11 Moreover, pornography prevents women from successfully performing speech acts. The attribution of such power to pornography is not new. In 1987, the pioneer of anti-pornography feminism, Catharine MacKinnon, who ironically titled one of her books Only Words, criticized pornography in similar terms.12 But I would like to introduce this point of view in a more sophisticated way than Rae Langton’s.

13I will return to the important matter of the application to pictures, to movies, of a theory which was originally thought of as a tool to analyze “oral speech”. According to Rae Langton, pornography has the illocutionary force of subordinating women, through two different means. Firstly, by showing women as always subjected to male desire, pornography performs two kinds of illocutionary acts: it ranks women as inferior (and creates a sort of reality, as women should accept this verdict and play their role); it legitimates the discriminatory treatments women suffer from, namely the fact that we treat them as mere objects. Notice that in Austin’s theory, for a speech act to be successful, the performer needs to have sufficient authority. So it is not out of the question, according to Langton, to think that pornography might be authoritative, or at least authoritative for people who hold social authority — men, of course.

14The second argument rests on the same premises, but the conclusion differs. It argues that pornography has the power to “silence” women as it prevents them from performing illocutory acts. According to Rae Langton:

  • 13 Rae Langton, “Speech Acts and Unspeakable Acts,” Philosophy and Public Affairs, vol. 22, n°. 4, Au (...)

The words of the pornographer, like the words of the legislator, are “words that set conditions”. They are words that constrain, that make certain actions — refusal, protest — unspeakable for women in some contexts. This is speech that determines the kind of speech there can be.13

15Pornography is supposed to make the action of refusal unspeakable for women. During sexual acts, their “no” may be heard, but it is not taken seriously; it is not considered as a real refusal. To illustrate this idea, Langton often uses the metaphor of a comedian saying “fire!” on stage, to warn the public. Even though he may be telling the truth, the public laughs. His warning is not taken seriously; he fails to do things with his words. According to Langton, women’s “nos” present a similar fallacy.

16This argument is astute as it balances women’s freedom of speech with that of pornographers; the illocutory force of women with the illocutory force of pornography. The conclusion is clear: the concept of freedom of expression is meaningless if the words we utter are not taken into account, are neither understandable, nor efficient. This is why anti-pornography feminists campaign for the protection of women’s speech acts within the domain of freedom of speech. It is of course quite difficult to grasp the practical consequences of such a claim, and I will now try to demonstrate that these arguments rest on a mistaken interpretation of the theory of speech acts.

“Uttering”, “Saying” and “Speaking”

17John Austin’s theory of speech acts is almost exclusively concerned with the spoken word. He explicitly rejects the use of his own theories in a fictional context. But how can concepts such as speech acts and illocution be adapted to pornographic movies? In order to answer this question, I will first discuss the issues of the conditions of such an adaptation, and then move on to a discussion of a potential adaptation.

  • 14 See Claude Chabrol, « La Pornographie est-elle soluble dans le discours féministe grâce à la théori (...)
  • 15 Bruno Ambroise, « Quand pornographier, c’est insulter : théorie des actes de parole, pornographie e (...)

18Whether or not pornography has sufficient authority to actually perform speech acts and construct social reality has been questioned.14 Pornographic speech, if such a thing even exists, faces a lot of counter-speeches (religious speech, or political speech for instance) that make it less authoritative than feminists claim. But according to Rae Langton, pornography may harm women even though it does not have a general social authority. The fact it is authoritative in some people’s minds is sufficient for women to be harmed, or subordinated. Others emphasize the fact that the power of pornography cannot be effective as women do not take it into consideration.15 The feminist theory of language is above all focused on relational situations of speech. How could pornography have any effect on women when it is not meant for them, when they do not consider pornography as a real interlocutor? Langton’s response is not hard to imagine: people who matter are men. What matters is the ability of pornography to affect men’s conceptions of women as men do not take women’s refusals or protests seriously. Within the theory of speech act, Langton always finds tools to reinforce her hypothesis. Concepts of performativity seem to fit directly with the critique of pornography, which is the reason why I prefer to discuss the possibility of adaptation.

19Langton gives two kinds of justifications. The first is founded on the theory of language, assuming that in some ways, pornography may be considered as a kind of oral expression. But this argument is extremely questionable. Let me explain and illustrate this claim. According to Langton and Caroline West, even if pornography does not speak in the ordinary sense of the word, we can suggest that it speaks implicitly as it could not be efficient without certain presuppositions, certain shared values that are accepted by the audience. If pornography draws its power from these shared presuppositions, then we can consider it as a kind of language. They write:

  • 16 R. Langton, Sexual Solipsism, op. cit., 184.

While it may not explicitly be said that women are inferior or that sexual violence is normal or legitimate, it may be that propositions like these are presupposed by what pornography explicitly says, because they are required for the hearer to make best sense of what it said.16

20Two remarks can be made about this assertion. Firstly, the claim that pornography needs presuppositions to be efficient may be true, but it is much less radical and original than saying that pornography creates those presuppositions. In the first case, pornography stems from prejudices, in the second, it creates them. Secondly, I fail to see the borders of censorship if we take the implicit content of works into consideration.

21 If we now turn to the strategic argument, we note that it aims at accepting the liberal premise according to which pornography is a kind of speech, in order to show its inconsistencies. In response to Leslie Green, Langton argues:

  • 17 Ibidem, 101

My arguments were indeed premised on the assumption that pornography is speech, as the courts declared. It is disputable that pornography is speech, and it has been disputed. Notice this, however: If pornography is not speech, then free speech does not protect pornography, if anything does. Either pornography is not speech, in which case a free speech principle does not protect it; or pornography is speech, in which speech act theory can help understand it.17

22Now, courts having declared that pornography is speech, we can adapt the theory of speech acts to pornography. And if one disagrees that pornography is a kind of speech, then pornography does not fall within the scope of the First Amendment, and is no longer protected as speech. So either pornography is speech, in which case Austin’s theory applies; or it is not speech, in which case the Supreme Court does not protect it. Either way, censorship seems to be the logical consequence.

  • 18 In accordance with the “clear and present danger” test decided by Schenck v. United States, 249 US (...)

23I believe that this argument is based on a deliberate confusion about the meaning of saying which Austin’s theory focuses on, and speech which the Supreme Court protects. Feminists categorize pornography as speech in order to apply Austin’s theory, which above all concerns oral expression. But this is certainly not sufficient. In the Supreme Court jurisprudence, notions of speech and speaking, meaning utterance of words, do not cover the same reality at all. The Supreme Court has indeed defined certain kinds of artistic expressions, such as films, as speech as they belong to the country’s moral and intellectual heritage. The Supreme Court also decided that some kinds of expressive acts, such as flag burning, could be considered as political speech. However, some forms of oral expression are not protected by the courts even though they are utterances that Austin’s theory takes into account. If I shout “Allah Akbar” on an American plane, for instance, my words will not be considered as speech at all.18

24Rae Langton actually has a double discourse around the classical theory of speech that inspires the Supreme Court. She challenges this theory on a philosophical level, arguing that it is meaningless since it does not take into account the freedom of women to perform speech acts. But she strategically accepts this Supreme Court decision: if it states that pornography is speech, Rae Langton takes advantage of this decision and applies the theory of speech acts to pornography. She thus writes that even though pornography is not speech, we can still treat it as a speech act, and compare it to a heckler who drowns out women’s voices. But this comparison seems dubious to me since sound is not what really matters in pornography. Moreover, there seems to be another contradiction. Rae Langton affirms that Austin’s theory applies to pornography because it is speech; then she says that even if pornography were not speech, this theory would apply anyway. It seems that this argument is unsound.

25My point here is not to deny that pornography may communicate a stereotyped and contemptuous picture of women, with potentially dramatic consequences. This may be a classical critique of pornography, but the feminist argument here is slightly different: it consists in giving pornography the authority to cause direct harm, thanks to a use of the theory of speech acts that seems too broad.

The Liberal Dilemma

  • 19 This paradoxical situation has been notably analyzed by Ruwen Ogien’s « Libéraux et pornographes », (...)

26Having tried to emphasize some inconsistencies in feminist theory, I would like to conclude now by broadening the argument to a dilemma that their liberal adversaries face. I indeed believe that debates about pornography highlight some paradoxes in the classical, liberal theories of freedom of speech. In other words, the terms in which feminists have posed the pornography debate forced legal scholars and First Amendment theorists to reject freedom of speech justifications. The debates put some liberals in an awkward position. They defended sexual images which did not deserve it, through justifications that were not made for them. Moreover, radical feminists did not oppose liberals with conservative arguments, but instead with traditional liberal arguments: not a moral critique of pornography, but a political one, grounded on the principle of harm and a critique of male domination. Legal scholars have been divided over this issue mainly because norms that traditionally shield freedom of speech have been reinterpreted for the sake of censorship.19

  • 20 Frederick Schauer, Free Speech: a Philosophical Inquiry, New York: Cambridge University Press, 1982 (...)
  • 21 Danny Scoccia, “Can Liberals Support a Ban on Violent Pornography?” Ethics, vol. 106, n° 4 , July 1 (...)
  • 22 Cass R. Sunstein, “Pornography and the First Amendment,” 1986 Duke Law Journal, n° 4, September 198 (...)

27What unifies most of the theoretical defenses of freedom of speech is their common focusing on persuasive, communicative, deliberative aspects of language in either political or scientific spheres, but pornography hardly seems protected by a conception of speech that promotes truth-seeking and rationality. Thus some scholars have simply excluded pornographic sexual depictions from First Amendment protection as they do not aim to communicate anything but sexual arousal.20 Some authors also maintain that since pornography does not fit into a persuasive or deliberative model, but rather resembles a form of subliminal image, there is no good reason to protect it.21 And according to Cass Sunstein, who gives speech a prominently deliberative and democratic function, pornography is a mere low-value speech that does not deserve the same protection as political and ideological discourses. Since pornographic sexual depictions occupy the lowest place on the scale of expression, the mere assumption that these representations may harm women could be sufficient to ban them. Cass Sunstein advocates such a regulation of pornography as it is not only low value speech, but as it also prevents women from considering themselves as equal to men, for equality is a prerequisite of a meaningful deliberative democracy.22

  • 23 John Finnis, “’Reason and Passion’: The Constitutional Dialectic of Free Speech and Obscenity,” Uni (...)

28As John Finnis forcefully explains, the rejection of sexual representations by liberal scholars is not a result of hidden moralistic values, or an underlying traditionalism. It is much more the result of a strong rationalistic tradition which favors argumentation and distance instead of prurient interest, and in which aesthetic experience will tend to promote contemplation and moral edification much more than sexual arousal.23 Since freedom of speech is an end which helps individuals to become autonomous and promotes a certain society in which public affairs are subject to permanent deliberation, it is easy to understand why the defense of pornography has been far from unanimous on the liberal side.

  • 24 See, for example, Geoffrey R. Stone, “Anti-Pornography legislation as viewpoint-discrimination,” Ha (...)

29In order to be protected by the First Amendment, pornography must be political — which is not exactly self-evident — but, ironically, feminists have given unexpected help to liberals by claiming that the struggle against pornography was a political, not a moral issue. They have equated pornography with a kind of segregation, promoting political and social discrimination against women. In this context, the advocates of freedom of speech just had to compare the Indianapolis ordinance with an insidious form of political censorship, preventing points of view (even those with no worth) from being expressed, to give pornography some protection and even grant it some form of intellectual dignity.24 Yet, we must note that this defense of pornography is highly rhetorical. It is astonishing to see that both feminists and liberals ground their justifications on a rhetorical sleight of hand, which serves as the basis for the whole pornography debate in the United States.

30Each side has taken advantage of the other’s conceptual premises in order to make their own arguments apparently neutral, and consensual. Anti-pornography feminists wrote: “Pornography contributes to discrimination against women, it is an attack on women.” In the Hudnut decision, as some legal scholars have noted, it is said that if pornography portrays women as enjoying pain, if it promotes domination and inequality, then pornography is a kind of persuasive message. So it belongs to speech, which is protected by the First Amendment. Subsequently feminists, re-interpreting this line of defense, have added their own linguistic turn: “If pornography is ‘speech’, the ‘speech act theory’ applies.” Each side has tried to use the other’s conclusion to pull off a victory. But pornography is hardly speech in the common sense of the term, and even if it is Austin’s theory hardly applies. The misunderstanding comes from the word speech which means, in the ordinary sense, an utterance of words, whereas in the judicial context, it refers to a changing category in which we arrange the kind of expressions we want to protect. Feminists — who use speech in the first sense — and liberals — who use it in the second sense — play with this semantic ambiguity.

  • 25 Larry Alexander, Is there a Right of Freedom of Expression? New York: Cambridge University Press, 2 (...)

31Some liberals who defend freedom of speech encounter the following paradox: either they argue for a narrow conception of the First Amendment which only protects argumentative, rational and political speech. But of course, freedom of speech defined this way would not cover anything.25 We could even say that in a certain way pornography embodies the exact opposite of speech that the First Amendment was made for. Or one could certainly adopt a broad-minded conception of speech which could include artistic expression, and finally pornography. But this would mean trivializing the liberal icon, the First Amendment, in a way that many cannot accept. Moreover, liberals do not have conclusive arguments against feminist critiques according to which the defense of free speech is meaningless if it is aimed at protecting pornography. The feminist claim that the liberal conception of speech is insidiously hypocritical and misogynistic, and that it should concentrate on more important issues, such as male domination and discrimination, can even seem appealing to liberals themselves.

  • 26 The expression is in Frederick Schauer, “The Phenomenology of Speech and Harm,” Ethics, vol. 103, n (...)
  • 27 See for example R. Ogien, La Liberté d’Offenser. Le Sexe, l’Art, la Morale, La Musardine: Paris, 20 (...)

32There is another way to defend pornography, not grounded on rational justifications such as political deliberation or seeking of truth. It can be claimed that pornography does not really harm, and consequently that there is no real reason to ban it. This “lesser harm hypothesis” 26 might be appealing for two reasons: first, because it undoubtedly fits with our intuitions about pornography demonstrating nothing more than sexual intercourse on a screen, and second, because it does not require complex theoretical justifications for freedom of speech, but a mere distinction between act and conduct, or between mere offense and real harm. Such distinctions are fundamental for First Amendment jurisprudence: action is direct and inevitable, whereas speech, even if it may lead to action, can only do so in a mediated and indirect way. This is the reason why some authors rely on this appealing and simple hypothesis.27

  • 28 Joel Feinberg, “Obscene Words and the Law,” Law and Philosophy, vol. 2, n° 2, August 1983: 139-161.

33But this hypothesis loses strength when it is examined in more detail. First, utterances are sometimes considered to be wrong in and of themselves, for instance libel, or death threats. Pornography certainly has little to do with such expressions: it is, at worst, a mere offense; and authorities should not forbid offenses, but only concrete harms. But how can one determine the area of mere offense? Joel Feinberg gives three factors for an offense to turn into a real prejudice that should be punished:28

  • 29 Ibidem, 147.

If the use of obscene words can rightly be made criminal, it can only be when it is an unjustified, deliberately imposed nuisance, that is when: (a) the words are used deliberately to shock, annoy, or offend their auditor for no respectable ulterior purpose (as when their motive is spiteful, vindictive, or malicious); (b) the auditor has not consented to the conduct in question and makes every reasonable effort to escape it; and (c) the words used, in virtue of their quality or quantity, were antecedently likely to cause intense and durable offense to their auditor and this was known to their user. This form of nuisance, in short, is a kind of harassment.29

34I shall not — and in fact, I cannot — discuss notions of intent, content and intensity in depth. But these concepts are so vague, hard to define, that they in fact offer a precarious protection to pornography. How could a lesser-harm hypothesis partisan respond to an anti-pornography feminist who claims that pornographers intend to harm women, portraying them as mere sexual objects enjoying suffering and pain, that women did not consent to such a humiliation, and finally that they are subjected to an intense and violent pressure? He could still respond that she is wrong, but he lacks conclusive arguments for the assumption.

Conclusion

35The debate between anti-pornography feminists and liberals gives us the opportunity to take a fresh look at the articulation of freedom of speech and censorship. The most striking feature of the issue is that it is both theoretical and rhetorical, as each side tries to take advantage of the other’s arguments to win the battle. Thanks to Austin’s theories, feminists profoundly reassessed the traditional vision of what speech means by proposing a pragmatic definition of language, based on its efficiency and ability to perform speech acts. Despite some difficulties, the feminist approach highlighted a paradox of current theories of freedom of speech: either the very concept of speech is restricted, and hardly shields pornography; or it is broad, and loses strength and its absolutist position.

36Beyond these controversies, issues of pornography allow us to observe the use of a philosophical notion — the theory of the speech act —when applied to a public debate. Whatever the soundness of such a use, it gives rise to a new field of research in First Amendment and free speech theories. This is why the theory of the speech act might be the turning point in debates over free speech and censorship in the coming years, as it has already proven to be.

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Notes

1 See Ruwen Ogien, Penser la Pornographie, Paris: Presses Universitaires de France, 2003; Michela Marzano, La Pornographie ou l’Épuisement du Désir, Paris: Buchet-Chastel, 2003; Marcela Iacub, De la Pornographie en Amérique, Paris: Fayard, 2010.

2 See Justice Oliver Holmes’ dissent in Abrams v. United States, 250 US 616 (1919).

3 Joseph Burstyn, Inc, v. Wilson, 343 US 495 (1952).

4 Texas v. Johnson, 391 US 497 (1989).

5 Miller v. California, 413 US 15 (1973).

6 Full text available at< http://www.nostatusquo.com ACLU/dworkin/other/ordinance /newday/AppD.htm>, accessed 6 July 2011.

7 American Booksellers v. Hudnut, 475 US 1001 (1986).

8 Idem.

9 John L. Austin, How to Do Things with Words, Oxford: Oxford University Press, 1975.

10 Jennifer Hornsby, “Feminism in Philosophy of Language: Communicative Speech Acts,” in Miranda Fricker and Jennifer Hornsby (eds.), The Cambridge Companion to Feminism in Philosophy, Cambridge (MA): Cambridge University Press, 2000, 6-7.

11 Rae Langton, Sexual Solipsism. Philosophical Essays on Pornography and Objectification. New York: Oxford University Press, 2009, 95.

12 For an overview of Catharine MacKinnon’s theories on pornography and domination, see her Feminism Unmodified, Cambridge (MA): Cambridge University Press, 1987.

13 Rae Langton, “Speech Acts and Unspeakable Acts,” Philosophy and Public Affairs, vol. 22, n°. 4, Autumn 1993: 324.

14 See Claude Chabrol, « La Pornographie est-elle soluble dans le discours féministe grâce à la théorie des actes de langage », Connexions n° 87, 2007/1 and Sandra Laugier, « Actes de Langage », in Philippe di Folco (dir.), Dictionnaire de la Pornographie, Paris: Presses Universitaires de France, 2005, 8, which discuss the use of Austin’s Theory by MacKinnon.

15 Bruno Ambroise, « Quand pornographier, c’est insulter : théorie des actes de parole, pornographie et féminisme », Cités, n° 15, 2003/3: 79-95.

16 R. Langton, Sexual Solipsism, op. cit., 184.

17 Ibidem, 101

18 In accordance with the “clear and present danger” test decided by Schenck v. United States, 249 US 47 (1919).

19 This paradoxical situation has been notably analyzed by Ruwen Ogien’s « Libéraux et pornographes », Raisons politiques n° 11, 2003/3. Dossier « Le corps du libéralisme » : 5-28.

20 Frederick Schauer, Free Speech: a Philosophical Inquiry, New York: Cambridge University Press, 1982, 237.

21 Danny Scoccia, “Can Liberals Support a Ban on Violent Pornography?” Ethics, vol. 106, n° 4 , July 1996: 776-799.

22 Cass R. Sunstein, “Pornography and the First Amendment,” 1986 Duke Law Journal, n° 4, September 1986: 589-627.

23 John Finnis, “’Reason and Passion’: The Constitutional Dialectic of Free Speech and Obscenity,” University of Pennsylvania Law Review, vol. 116, n° 2, December 1967: 222-243.

24 See, for example, Geoffrey R. Stone, “Anti-Pornography legislation as viewpoint-discrimination,” Harvard Journal of Law and Public Policy, n° 9, 1986: 461-480.

25 Larry Alexander, Is there a Right of Freedom of Expression? New York: Cambridge University Press, 2005, 140-141.

26 The expression is in Frederick Schauer, “The Phenomenology of Speech and Harm,” Ethics, vol. 103, n° 4, July 1993: 640: “So let us designate the position under inspection the ‘lesser harm hypothesis’. Pursuant to the lesser harm hypothesis, the class of speech should be comparatively immunized from control because its consequences are less harmful than the consequences of other forms of conduct.”

27 See for example R. Ogien, La Liberté d’Offenser. Le Sexe, l’Art, la Morale, La Musardine: Paris, 2007 and Franklyn S. Haiman, “Speech Actsand the First Amendment, Carbondale: Southern Illinois University Press, 1993.

28 Joel Feinberg, “Obscene Words and the Law,” Law and Philosophy, vol. 2, n° 2, August 1983: 139-161.

29 Ibidem, 147.

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Denis Ramond, « How to do Things with Screens? Anti-Pornography Feminism and Censorship »Revue LISA/LISA e-journal [En ligne], Vol. XI – n° 1 | 2013, mis en ligne le 30 mai 2013, consulté le 25 octobre 2021. URL : http://journals.openedition.org/lisa/5253 ; DOI : https://doi.org/10.4000/lisa.5253

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Denis Ramond

Institut Politique de Paris, France. Denis Ramond est doctorant à l’Institut Politique de Paris. Ses recherches portent sur les débats sur la pornographie en France et aux États-Unis depuis 1960. Il est l’auteur de « Liberté d’expression, de quoi parle-t-on ? », paru dans la revue Raisons Politiques en décembre 2011.

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Les contenus de la Revue LISA / LISA e-journal sont mis à disposition selon les termes de la licence Creative Commons Attribution - Pas d'Utilisation Commerciale - Pas de Modification 4.0 International.

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