Millian Liberalism and Extreme Pornography
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Millian Liberalism and Extreme Pornography Nick Cowen King’s College London Abstract: How sexuality should be regulated in a liberal political community is an important, controversial theoretical and empirical question—as shown by the recent criminalization of possession of some adult pornography in the United Kingdom. Supporters of criminalization argue that Mill, often considered a staunch opponent of censorship, would support prohibition due to his feminist commitments. I argue that this account underestimates the strengths of the Millian account of private conduct and free expression, and the consistency of Millian anticensorship with feminist values. A Millian contextual defense of liberty, however, suggests several other policy approaches to addressing the harms of pornography. hatplacedoespornographyhaveinaliberal sexual penetration; acts that appear to threaten a person’s society?1 Williams (1979), in his role as life; acts that inflict serious harm on the breasts, geni- W chair of the British Home Office Committee talia, or anus; and acts of necrophilia and bestiality. While on Obscenity and Film Censorship, famously bound many images falling under this definition offend and dis- Mill’s harm principle to a defense of pornography, and turb people, liberal opponents are concerned that the Millian thought has been central to this debate ever prohibition includes fictional representations, in particu- since. Some feminist critics of pornography offer a new lar, depictions of common sexual fantasy scenarios (Joyal, pro-censorship Millian account, supported by Mill’s Cossette, and Lapierre 2015), as well as a range of sex acts commitments to women’s emancipation and aversion to that may appear subjectively dangerous or degrading, but humanity’s animalistic sexual appetites (McGlynn and are safe and frequently enjoyed when practiced between Rackley 2009; McGlynn and Ward 2014). While other the- informed, consenting adults. The prohibition targets peo- orists reject aspects of a liberal framework in order to jus- ple for possessing depictions of sex acts, rather than in- tify censorship (Langton 2009a; MacKinnon 1993, 2001), volvement in real acts that are either seriously harmful or this new Millian argument extends the debate because it nonconsensual (Murray 2009). It applies characteristics uses liberal premises to justify regulating highly personal of existing law regulating publication to cases involving expression. private possession (Attwood and Walters 2013, 977). As a The prohibition of “extreme pornography” in the result, even personal images, depicting intimate encoun- United Kingdom (Criminal Justice and Immigration Act ters with a partner, can be criminalized. 2008) and its recent extension (Criminal Justice and The prosecution of Simon Walsh, in August 2012, Courts Act 2015) inspired and invigorated this argument illustrates this problem. The Crown Prosecution Service for censorship. The law was introduced with the express for England and Wales charged him with possession of intention of protecting women from the harm of pornog- several photographic images taken at a private sex party, raphy (Carline 2011). It bans the possession of obscene in which he participated, that depicted allegedly harm- and explicit depictions of the following: nonconsensual ful acts of “fisting” and “urethral sounding” (Rackley and Nick Cowen is Ph.D. Candidate, Department of Political Economy, King’s College London, Second Floor, Strand Building, Strand Campus, London WC2R 2LS, United Kingdom ([email protected]). I am deeply indebted to John Meadowcroft, Adrian Blau, and Stuart White for providing essential help at crucial stages in my research. Thanks are also due to Elizabeth Morrow, Siddhartha Bandyopadhyay, Aris Trantidis, Alex Dymock, Chris Ashford, Bill Glod, and the three anonymous referees for providing important comments and corrections, as well as Hilary Davies (Royal Literary Fund Fellow) for advice on language and presentation. This work was supported by the Economic and Social Research Council (ES/J500057/1) and the Institute for Humane Studies. 1In order to avoid a circular argument over definitions (Dworkin 2006, 300), I follow the prevailing working definition of pornography as sexually explicit material intended to arouse (McGlynn and Ward 2014). American Journal of Political Science, Vol. 60, No. 2, April 2016, Pp. 509–520 C 2015 The Authors. American Journal of Political Science published by Wiley Periodicals, Inc. on behalf of Midwest Political Science Association. DOI: 10.1111/ajps.12238 This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited. 509 510 NICK COWEN McGlynn 2013). Walshwas acquitted following expert de- “direct” harm that denies the real harms and injustice of fense evidence suggesting that the acts depicted were rel- pornographic expression beyond that directly associated atively safe. However, the process outed Walsh as gay and with its production (McGlynn and Ward 2014, 503). Once derailed his professional career, including a legal practice these abstractions are dismissed, those in favor of censor- that had specialized in investigating corruption within ship suggest that liberals can approach questions of free British police forces, and public life, as an aide to the expression and individual liberty on a more contingent, mayor of London (Attwood and Walters 2013, 975). case-by-case basis (McGlynn and Ward 2009, 341). Liber- The Crown Prosecution Service maintains that the als should acknowledge the existence of “cultural harm,” acts depicted were “extreme” even if the jury disagreed namely, harms that contribute to a “social environment in in this case, suggesting they see this kind of prosecu- which sexual violence is marginalised, in which rape con- tion as in line with government policy. This illustrates viction rates are at an all time low and in which pornog- the difficulty that prosecutors have had interpreting the raphy is becoming (if possible) even more ubiquitous” law. There are particular legal vulnerabilities for sexual (McGlynn and Rackley 2010, 9). A Millian, on this ac- minorities, including individuals with a lesbian, gay, bi- count, should endorse this approach because Mill himself sexual or transgender orientation, and practitioners of does not systematically define harm, nor a way of dealing bondage, domination and sadomasochism. More than a with conflicts between liberties (McGlynn and Ward 2014, thousand prosecutions happen annually (Crown Prose- 506). Moreover, reading the “Applications” section of On cution Service 2015, 92). In contrast to these observed Liberty,andThe Subjection of Women provides plenty of harms arising from prosecution, there is comparatively exceptions to any notional “harm principle” (Dyzenhaus little evidence that allowing access to extreme pornog- 1992b, 534; McGlynn and Ward 2014, 506). The pro- raphy causes or encourages violence against women, or censorship case adds that pornography, especially extreme is associated with specific social harms (Diamond 2009; pornography, cannot conceivably be valuable expression, Ferguson and Hartley 2009; cf. Itzin, Taket, and Kelly and so liberals should commend its prohibition. 2007). Nevertheless, feminist supporters of the law, If successful, this case justifies censorship on a broad though critical of its implementation in particular cases, basis, impacting not just on expression made in public including that of Walsh, argue for the principle of censor- but also ideas shared in private (indeed intimate) set- ship using Millian liberal premises. tings. This could render prosecutions such as Walsh’s an unfortunate but, potentially, necessary part of the process of a political community deliberating and discovering the shared boundaries of acceptable behavior (cf. Johnson The Millian Case for Censorship 2010). If the case fails, then the ban loses an important normative justification and may appear more like a sheer The Williams report made Millian principles of free ex- exercise of state power with the reactionary function of pression (1979, 53) and the harm principle (1979, 57) a punishing alleged sexual deviancy (Carline 2011) and re- core part of the liberal defense of sexually explicit material. inforcing some sexual minority practices as taboo (Tebble The report criticized the application of the legal notion of 2011). “obscenity” as unworkable and subjective (1979, 11), and My case for the latter is as follows. Millian2 liberalism drew attention to the lack of evidence of specific harms, sees rights as political, not metaphysical. Critiquing the especially sexual offenses, associated with the availability ontological status of rights does not impact straightfor- of pornography (1979, 79). The report did not advo- wardly on the content of the rights that a Millian defends. cate a laissez-faire policy, instead endorsing regulations The harm principle affirms a tractable set of rights that on displays of pornography to prevent public offense and includes possession of extreme pornography. Rather than to protect children from inappropriate material (1979, rendering the harm principle indeterminate, the “Appli- 130). However, the report argued that criminal prohibi- cations” section of On Liberty helps to establish its bound- tion should be restricted to material created by inflicting aries by explaining what counts as private conduct to be actual physical