V. Pornography and Hate Speech

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I. The First Amendment: The government shall make no law abridging the freedom of expression-- speech or of the press.

II. Exceptions

A.  Speech that threatens a clear and present danger

1. fire in the crowded theater

2. whipping a mob into a frenzy and then telling them to go out and kill

3. revealing classified information

B. Libelous speech

C. Obscenity

1. What is obscenity? (Often used synonymously with "pornography" but we should note a legal distinction.)

a. pornography: sexually explicit or erotic material intended mainly to produce sexual arousal. (No value judgment implied.)

b. obscenity: Miller v. California 1973--Three criteria

1. whether the average person, applying contemporary community standards would find that the work as a whole appeals to prurient interest.  "prurient"= "lewd" (negative connotation)

2. whether the work depicts or describes, in a patently offensive way, sexual conduct.

3. whether the work taken as a whole, lacks serious literary, artistic, political, or scientific value.

D. So e.g. laws regulating mailing unsolicited obscenity okay (Miller), laws permitting special zoning for theaters which show obscenity okay.

II. Hate speech: Not an exception!

A. A number of universities passed speech codes which made it a serious offense to use hate speech, and the Supreme Court has found most of them unconstitutional.

B. KKK marching down Main Street.

John Stuart Mill: Utilitarianism.  He'll be strongly in favor of protecting free speech...on utilitarian grounds.

---At first glance it seems as if utilitarianism would advocate an intrusive legal system, and have no interest in protecting the rights of the individual---But no!!!---

I. Anti-paternalism

A. What is paternalism?

B. Who knows best and cares most about what's going to make you happy?

C. Laws regulating obscenity in so far as it affects consenting adults?

1. Suppose there were good evidence to believe that viewing obscenity caused (really caused) violent behavior towards others?

2. Suppose there were good evidence to believe that viewing obscenity caused harm to oneself?

II. Right to free speech (Including very unpopular speech)

A. The truth is useful!!!

B. Silencing the speaker robs the whole human race

C. How?

1. He may have the truth.

2. He may have some of the truth.

3. He may have absolutely no truth, but allowing him to speak forces us to keep in mind why it is that we hold the views we do.  This helps us to understand and to hang on to the truth.

Mackinnon: Defense of laws which outlaw making, selling pornography.

I. Pornography:

A. "the graphic sexually explicit subordination of women through pictures or words..." p.350

B. vs. Erotica, "sexually explicit materials premised on equality."

C. men? children? Their use "in the place of women" is pornography.

II. Harms women

A. Not

1. that the women portrayed are actually physically assaulted (that's illegal in any case), nor

2. that there is any evidence that it leads to acts of violence (like rape) against women, (there isn't) but...

B. by promoting the status quo/furthering discrimination: It is  "a practice of sex discrimination, a violation of women's civil rights"

III. Different from obscenity laws

A. Obscenity depends upon

1. average person / community standards finds it offensive...average person is steeped in patriarchal society.  It's the community that's the problem.

2. prurient interest...why is that so important and not powerlessness and exploitation.

3. work has a whole has literary, artistic, political, or scientific value...so what.  Why should that override injury to women.

B. Obscenity is a moral idea, an idea about judgments of good and bad.  Pornography, by contrast, is a political practice, a practice of power and powerlessness. (p.349)

IV. Legal precedent: numerous anti-discrimination laws.

V. Bottom line is that woman who feels that pornography has contributed to her being discriminated against can sue the makers and purveyors of said pornography.

Lynn: MacKinnon's suggestion an intolerable intrusion against right to free speech, and in fact obscenity laws in general a bad idea.

I. Same problem of vagueness with the MacKinnon definition of "pornography" as with Miller definition of "obscenity".

A. Wide range of things that can count

B. "Chilling effect"

II. Pornography is speech which should be protected just like any other speech.  Just because it's not expressed in a rational manner...

III. Advantages of pornography

A. Sexual self-actualization

B. Fantasy w/out actions

IV. The harms which MacKinnon claims

A. Assault (just no evidence)

B. Forcing pornography on the unwilling

1. Unlikely

2. Can be avoided

a. drive-in movie

b. what if it's really hard to avoid?  Court seems to make a distinction.  Would Lynn?  Would You?

3. Cases of malicious (define) harassment, intolerable work environment...already laws.  Again: Would Lynn think they're okay?

---basically there are already laws to deal with the extreme cases--------

C. Causes discrimination (and so a woman who's been discriminated against can sue the maker or distributor or retailer.)

1. Just no evidence

a. Saudi Arabia

b. economic status of women correlates with circulation rates of pornographic magazines (He's not trying to prove a causal link showing pornography to be good for the status of women.)

V. In fact what MacKinnon is trying to do is impose her own ideas of happy sexual relations on everybody, not by argument, but by outlawing opposing views.

American Booksellers v. Hudnutt: The Indianapolis ordinance prohibiting pornography (MacKinnon's idea) is unconstitutional as it prohibits the kind of speech traditionally protected by the First Amendment, and does not offer any compelling argument to extend the range of unprotected speech.

---Three tasks: 1. Is the ordinance prohibiting speech or behavior?  2. If speech, is it protected under the Constitution?  3. If protected, should this new regulation be allowed?--

I. Though the proponents of the ordinance cast it as one which restricts discrimination, it's pretty clearly restricting speech.

II. So is it regulating protected speech?  Obscenity: The ordinance is not limited to the sort of expression which has been defined as obscene (the three criteria from Miller).

III. Pornography by the MacKinnon definition would be a new class of constitutionally unprotected speech...should we allow it?...Legal precedents.

---Proponents point to other court cases which allow regulation of material similar to, but not meeting the criteria for, obscenity.---

A.  Proponents point to New York v. Ferber goes beyond Miller

1. Allows state to prohibit "persons from promoting child pornography by distributing material which depicted such activity,..."

2. Compelling interest in protecting children who are especially vulnerable to exploitation and harm.

3.  Grown women don't need this sort of protection.

B. FCC v. Pacifica Foundation

1. Allows state to regulate speech dealing with sex and excretion which is patently offensive in the context of broadcasting.

a. especially pervasive...comes into your home...difficult to avoid..
b. accessible to children

2. Ordinance does not aim at broadcast media, nor is it aimed at protecting children from exposure to pornography.

C. Young v. American Mini Theatres, Inc.

1. City in the interest of protecting its neighborhoods, can require that theatres featuring erotic films (even if not actually obscene) be separated, not all together such that the character of a neighborhood is affected.

2. Not the issue here.

D. So we can't appeal to legal precedent.

IV. Is the state interest in regulating the sort of sex discrimination imposed and perpetuated through "pornography" so compelling that it warrants regulating free speech?

A. Sociological harm of discrimination, not harm to a particular victim, therefore quite a new proposal.

B. Very dangerous consequences...any group that feels it is discriminated against and can get the votes on the city council can prohibit speech which depicts members of the group in a way it judges demeaning.

C. Wrong to deny free speech in an effort to engineer social change.  Even if the social change is desirable, better not restrict everybody's rights in an effort to get it.

Lawrence: Hate speech (focus on racist speech) does real injury; psychological injury to individuals and more general injury to minorities by perpetuating white supremacy, and therefore it should not be absolutely protected by the First Amendment.

I. Speech vs. Conduct: racist speech is racist conduct: cites MacKinnon: the speech "constructs the social reality that constrains the liberty of nonwhites becasue of their race." (p.377)

II. The Stanford Regulation (p.381)

A. Discriminatory harassment is a violation of the Fundamental Standard.

B. Includes personal vilification of students on basis of...

C. Vilification =

1. intended to insult or stigmatize on the basis of...

2. addressed directly to the individual...

3. makes use of "fighting" words or non-verbal symbols. "Fighting words" are commonly understood to convey direct and visceral hatred or contempt on basis of...

III. Why don't they deserve protection?

A. Immediacy of the injury

B. Preemptive nature (preclude a response) because mirror widely held beliefs in our society.

[Background is the idea of the perpetuation of white/male supremacy.]

IV. The other side?  Free speech benefits everybody.  Not really

A. In a racist society speech by minorities taken less seriously than by others.

B. Racist speech intimidates and hence silences minorities.

V. Has Lawrence failed to apply his test to himself?

A. He says things which constitute serious insult to certain groups on the basis of race (and gender).

B. Could this be read as an effort to intimidate and hence silence the opposition?

C. [Does not fit the Stanford regulation], but seems a clear illustration of danger of legislating against racist speech.

D. We could solve this by saying that women and members of minorities may use racist and sexist speech against white men, but just regulate it coming from white men. (In fact this is the informal practice in academia.)

[I'm not suggesting this is a good idea.  Think about why it isn't.]

Rauch: Hate speech should not be banned.

I. No getting rid of prejudice (Stamping out prejudice really means forcing everybody to share the prejudice that's in authority.)

II. Pluralism: Allow all ideas to compete...versus Purism: Stamp out the offensive ideas.

III. Speech is not violence.  To say it is distracts people from serious issues of real violence.

IV. Most serious danger in banning offensive speech is that it gives the majority a license to silence dissidents.

Doesn't Lawrence, for example, engage in racist speech, such that if we were to ban racist speech, as Lawrence suggests, he himself might be silenced.