Archive for the ‘Political Philosophy’ Category

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The Danger of Rea’s Definition of Pornography

July 2, 2012

The Danger of Rea’s Definition of Pornography

By: Mike Stayton

Philosophy 1330: Topics in Political Philosophy – Liberalism

Professor Michael Kessler

April 23, 2012

 

Ask anyone to give a definition of pornography and each will provide a different answer. Any of these received answers will be subjective, relying heavily on the speaker’s individual ideas, beliefs, and personal experiences. How then can we define a word that has no agreed upon characteristics? This paper will look at some of the better attempts to define the term and make an attempt to determine if pornography even objectively exists given its very high degree of subjectivity. I will begin by reviewing the current definitions and their weaknesses as tackled by Michael C. Rea in his article “What Is Pornography”. Second, I will look at Rea’s attempt to resolve these differing accounts with his own definition. Third, I will show why it too fails at pinpointing a single definition of pornography and the dangers we face if we accept it.

Understanding the problems resulting from the plethora of definitions for pornography, Michael C. Rea attempts to bring clarity to the term in his article “What Is Pornography”. His goal is to provide a “real definition”[1] for common usage in the moral debate. Rea begins by illustrating the intuitive differences between what is currently considered pornography from what is not. Though the depictions of the nude female body as those seen in Playboy or Penthouse seem to be the first idea that comes to mind when thinking of pornography, there are also examples that depict male nudes such as Playgirl. Some pornography is sexual others non-sexual. Hard core and soft core, violent and non-violent, humiliating or non-humiliating, there are examples of all. Context is also of great importance. Rea gives a particularly clear example of a photograph of Marilyn Monroe produced in the 1940’s for a sexually explicit calendar. The photo was reproduced in Life magazine in a 1996 issue where it was considered non-pornographic. This is an example of a piece that was originally considered obscene but used 50 years later in a different context. Examples of non-pornography used as pornography are also prevalent, e.g. a teenage boy’s use of nudes in National Geographic for the purpose of sexual gratification. In another instance a woman who takes a sexually explicit photo of herself for the private pleasure of her husband would not typically be said to be a producer of pornography even if the photo’s purpose was primarily for the arousal of her husband. With examples such as these, Rea successfully illustrates the complicated nature of intuitively separating pornography from non-pornography.[2] From here Rea continues with two thought experiments and six separate definitions of pornography. Each of these will have to be covered by Rea’s definition for the definition to be successful. I will begin with the two thought experiments then continue to the definitions.

PROFIT MACHINE

The first thought experiment utilized by Rea is that of the Profit Machine, a scenario in which a wealthy computer expert designs a system to gather all applicable information regarding a population and create the perfect product for the generation of maximum profits. The computer collects information and preferences from a small pacific island and determines that pornography would be the most profitable product to sell on the island. The island natives have never heard of or seen pornography but they use the product as a means to sexual gratification. Though the computer expert has no idea what his computer is producing to bring in profits, he has now involuntarily involved himself in the production and distribution of pornographic material.

SHOE-FETISHISTS

Rea’s second experiment is the Island of the Shoe-Fetishists. This example involves yet another island where visiting anthropologists discover that the natives are highly aroused by photos of ordinary shoes. They use these shoe photos for sexual arousal and gratification. Following the same parameters from the Profit Machine, we should all agree that though the shoe catalogue contains no sexually explicit material it would be considered fetish pornography for this island audience due to the catalogue’s arousing nature. Because of this, items such as the shoe catalogue must be considered in Rea’s final definition.

These two thought experiments are used to show that though we can intuitively describe pornography as sexually explicit there are counter-examples showing that the business of pornography can be entered into unknowingly and need not be overtly sexual in nature. Rea’s point is to illustrate that any definition of pornography will have to “accommodate our intuitions about the familiar examples, but also accommodate the judgments…given about the scenarios just described.” [3]

Following the additional complexity added by the thought experiments, Rea identifies and refutes six ineffective definitions of pornography including Sex-for-Profit, Bad Art, As/As-Only/Only-As, Obscenity, Oppression, and Intention/Effect. For the purposes of restraining the length of this paper I will give quick definitions of the first three and more in-depth definitions of the last three as they are the most widely held definitions.

SEX-FOR-PROFIT

The sex-for-profit definition takes the idea that pornography sells its sexually explicit nature for profit. Rea counters that this definition is too broad and would include the sale of sexually explicit items such as lingerie, condoms, and sex toys as pornography. Under this definition, free sexually explicit material found on the Internet would be considered non-pornographic, as its purpose is not for direct profit.

BAD ART

Pornography as bad art is described as sexually explicit art with little to no artistic value. Rea’s most convincing counter-example is that phone sex, though widely considered as pornographic, could not be considered art at all.

AS/AS-ONLY/ONLY-AS

As/As-Only/Only-As definitions consider any work that uses humans as, as-only, or only-as sexual objects. Because shoes are obviously not humans no human subject would be involved in the Shoe-Fetishist example and the catalogue could not be considered pornography. In addition to this, many pornographic magazines and websites give personal information about the models being used to indicate that they are real people with real feelings and interests.

OBSCENITY

Obscenity is the violation of community standards concerning offensive sexually explicit behavior or material. Loudly cursing in a church would be offensive to many but it would not typically be considered obscene in the pornographic sense. Attempts at a definition for obscene usually fall under a normative or a descriptive definition. A normative definition is one that tells us what kind of sexually explicit behavior should offend us. If I am not offended by what I would consider an artistic photo of a nude woman, I must ask myself if this is something I should be offended by or am I one who is more accepting of indecent material. We may also suppose, as regularly happens, that the community opinions of offensive material changes over time. In twenty years, if a 1970’s pornographic film is more dull than offensive could it be said that society has been desensitized or that the film is no longer pornographic? A definition assuming what the character of the average person should be offended by at any given time is useless due to its uninformative nature. Compared to the normative definition the overly informative nature of the descriptive obscenity definition allows a prevalence of counterexamples. This definition states that pornography is what is offensive to a decent person. To find out what is offensive we would need to poll society to determine the most decent of them and ask what those individuals thought was offensive. This solution, however, would be a case of double subjectivity. The first survey of the society would likely be biased for certain favored individuals and the poll of those persons would be nothing but a survey of the opinions of socially agreed upon decent people. Even if these decent citizens were tolerant of the sexually explicit materials, Rea holds that pornography would still exist. [4]

OPPRESSION

Sexually oppressive definitions hold that pornography subordinates the subject of the photograph and causes that individual or their group general harm. This harm, according to MacKinnon[5], contributes to the inequality that women, as a group, suffer from in society and makes the struggle against those difficulties all the more tiresome. Pornography thus creates a “social reality” that sets unreal expectations for its users while subordinating women.[6] This subordination limits women’s credibility in speaking of their own experiences. As a silencing force, MacKinnon names pornography as a direct means of sexual discrimination. Let us take a photograph of a nude woman in Playboy. The woman in the photograph is in a posture of sexual display but it will only count as pornography if the photograph subordinates the subject in the eyes of its viewers. Rea counters that it is the consumer of pornography that subordinates women and not the controversial photograph. Magazines such as Playboy make no objectifying statements about women any more than does the film Shame assert that Michael Fassbender is a sex addict off-screen. Both examples are nothing more than depictions of individuals of whom we know nothing of their personal sexual nature. Nor does either material make assertions of the sexual nature of men or women in general. No material, pornography included, has the power to objectify or oppress any human being. Only humans can oppress other humans and only humans can allow themselves to be oppressed.

INTENTION/EFFECT

The last of the definitions to be discussed is the Intention/Effect definition. Rea divides this definition of pornography into three subclasses being (1) those materials whose intent is to arouse (even if they fail to arouse), (2) those that are successful at arousing (with or without intent), and (3) those whose purpose is to arouse and are successful. Examples can be given for each of the above instances. The first involves a husband who sends a nude photograph of himself to his wife. Though his intentions are sexual his wife is neither amused nor turned on. The second example could be of a more innocent nature. A woman taking off her clothes in her home does not intend to arouse anyone but does so inadvertently. She is not aware that those outside can see in her open blinds and is merely changing into something more comfortable before heading to the gym. Her changing does, however, excite a man driving past her house who happens to catch a glance. The third is simply a reversal of the first. If a wife sends her husband a nude photograph of herself, it is very likely that he will be excited by the image. The wife sent the photo with both the intention and success of arousal. According to Rea no one could want these private photos shared between loving adults in an intimate relationship to count as pornography. These couples would risk being labeled as pornographers if caught, which seems wrong. This seems intuitive but we must remember that the definition must also fit in with Rea’s definition.

REA’S DEFINITION OF PORNOGRAPHY

From his arguments against these common definitions, Rea develops his own definition that he believes will cover the ideas where the others failed. The definition is divided into two parts Part 1 describing, “what it is for something to be used or treated as pornography and Part 2 as what it is for something to be pornography:

“Part 1: x is used (or treated) as pornography by a person S = DF (i) x is a token of some sort of communicative material (picture, paragraph, phone call, performance, etc.), (ii) S desires to be sexually aroused or gratified by the communicative content of x, (iii) if S believes that the communicative of x is intended to foster intimacy between S and the subject(s) of x, that belief is not among the reasons for attending to x’s content, and (iv) if S’s desire to be sexually aroused or gratified by the communicative content of x were no longer among S’s reasons for attending to that content, S would have at most a weak desire to attend to x’s content.

Part 2: x is pornography = DF it is reasonable to believe that x will be used (or treated) as pornography by most of the audience for which it was produced.”[7]

Part 1 describes what can be used or treated as pornography. I will briefly describe each number. The first (i) describes pornography as tokens allowing what could be considered pornography to change over time and in different contexts, reference the example of the photo of Marilyn Monroe mentioned above. The second (ii) attaches sexual feelings to the material as a reason to why one would want to use it. Three (iii) adds a “no intimacy requirement” whereby intimacy is blocked as a reason for using it. This would allow for a couple that send nude photos to each other to be safe from being labeled as pornographers. Four (iv) makes a distinction between strong desire to be aroused and other reasons for pursuing the material, effectively drawing a distinction between pornography and erotica. Part 1 is covertly Rea’s descriptive definition of obscenity which points at the audiences intended use as what is offensive.

Along with the necessity of meeting the above requirements, this teleological interpretation identifies the final function, the intentional distribution of by the producer of a material for use or treatment as pornography, as what it is to be pornography. Rea believes this tackles the idea that pornography is not an intrinsic property of any given object and allows any item that meets all the criteria of Part 1, shoe catalogue included, to be open for consideration under Part 2 as pornography. What it is to be pornography is to be intended by the distributor to be used as or treated as pornography by the target audience. This means that though the lingerie section of the JC Penny catalogue would not be considered pornography under Rea’s definition because the catalogue producer’s target audience are consumers shopping for merchandise. This addition of distributor intent to the audience’s intent, in essence makes Rea’s definition a class of obscenity with intent.

DISCUSSION

In Part 2, the phrase “reasonable to believe that x will be used (or treated) as pornography by most of the audience for which it was produced” is an expression that requires the assumption of an evaluator with an ability to predict the intent of an audience. The flow of sexual material from traditional print to the Internet in this increasingly globalized society adds to the difficulty of pointing to a particular target audience and being able to make a prediction about the materials usage. Any international business would have to be constantly informed of international regulations regarding what another society might call obscene or pornographic. As an example, the Office of the Religious Affairs Minister in Indonesia is pushing to ban miniskirts (any skirt falling above the knee) as pornographic in an effort to prevent sexual crimes against women.[8] China has cracked down on pornographic and non-pornographic Internet sites and mobile apps calling them a “transnational flow of illegal information.”[9] As can be seen, reasonable beliefs concerning the reactions of any audience would need to be well informed regarding any current cultural and social trends where the product and its advertisements may reach.

Rea may counter that his intent is not to develop an internationally recognized definition or even a concrete philosophical definition but a flexible framework that meets American standards. Even a local standards definition becomes unworkably vague if we consider the cultural and religious diversity contained within the United States.[10] As stated at the beginning of the paper, every individual has at least a slightly different definition of pornography and any single definition will undercut the principles held by some group. A belief that one of these individuals or group knows what others will do given a certain material is to believe oneself infallible in the assumption of one’s moral authority. Rea has already made evident by the use of the Shoe-Fetishist example that different people and/or cultures may use any given item for widely different purposes Pornography will be that much harder to categorize within and beyond our borders.

Additionally, Rea states prior to his explanation of Part 1 that based on the refutations of the previous definitions (those above) he could reject the idea that “’pornography’ refers to a genuine ontological kind.”[11] But he must continue with his definition because “most people’s intuitions seem to have it, there really is such a property.”[12] An appeal to the intuitions of the majority is guilty of the fallacy of appeal to belief. This fallacy asserts that the beliefs of a majority cannot serve as evidence of a claim’s truth. When one begins to believe in the collective truth of the majority the danger arises of individuals seeing their own personal interests as the interests of the community as a whole. This sort of belief could lead to a tyranny of the majority over the liberties of minority individuals to express themselves as they see fit. This oppression of the moral paternalist, looking out for the perceived good of his fellow man, is no less detrimental than that of any other tyrant.

The intentions of moral paternalists are always well meaning, but if we accept Rea’s definition we must also accept the potential consequences. As John Stewart Mill said of the tyranny of the majority, “precautions are as much needed against this as against any other abuse of power.”[13] The reason is that this power is disseminated throughout the population and is expressed not only in government institutions but in our everyday social lives. For this reason, “if all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”[14] Silencing the opinion of mankind is a crime against itself and an assumption of moral infallibility. Though pornography is not typically considered an opinion, it is a form of expression. Government authority should have no interest in restricting peaceful form of expression, even if deemed morally offensive by certain groups. Those who find pornography offensive will understandably and acceptably work to protect children from its exposure, but as adults we do not elect our representatives to legislate moral paternalism of the sort Rea, and most other definitions, seem to suggest upon willing adults. If any danger exists in accepting a definition of such highly subjective issues as pornography, it would be the danger of silencing valuable opinions (even low-value) from the deliberative debate.

 

Bibliography

Apple porn apps trigger Chinese users’ anger . 03 30, 2012. http://usa.chinadaily.com.cn/business/2012-03/30/content_14952608.htm (accessed 04 20, 2012).

Aritonang, Margareth S. ‘Miniskirts = porn’: Religious Affairs Minister . March 28, 2012. http://www.thejakartapost.com/news/2012/03/28/miniskirts-equivalent-porn-religious-affairs-minister.html (accessed 04 20, 2012).

Central Intelligence Agency. United States. https://www.cia.gov/library/publications/the-world-factbook/geos/us.html (accessed 04 20, 2012).

MacKinnon, Catherine A. “Francis Biddle’s Sister: Pornography, Civil Rights and Speech.” In Feminism Unmodified: Discourses on Life and Law, by Catherine A. MacKinnon. Harvard University Press, 1984.

Mill, John Stuart. On Liberty and Other Essays. Oxford: Oxford University Press, 2008.

Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 118-145.

 

 


[1] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 119.

[2] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 118-145.

[3] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 122.

[4] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 129.

[5] MacKinnon, Catherine A. “Francis Biddle’s Sister: Pornography, Civil Rights and Speech.” In Feminism Unmodified: Discourses on Life and Law, by Catherine A. MacKinnon. Harvard University Press, 1984, 174.

[6] Ibid., 174.

 

[7] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 120.

[8] Aritonang, Margareth S. ‘Miniskirts = porn’: Religious Affairs Minister . March 28, 2012. http://www.thejakartapost.com/news/2012/03/28/miniskirts-equivalent-porn-religious-affairs-minister.html (accessed 04 20, 2012).

[9] Apple porn apps trigger Chinese users’ anger . 03 30, 2012. http://usa.chinadaily.com.cn/business/2012-03/30/content_14952608.htm (accessed 04 20, 2012).

[10] Central Intelligence Agency. United States. https://www.cia.gov/library/publications/the-world-factbook/geos/us.html (accessed 04 20, 2012).

[11] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 135.

[12] Rea, Michael C. “What Is Pornography.” Nous (Blackwell Publishers Inc.) 35, no. 1 (2001): 140.

[13] Mill, John Stuart. On Liberty and Other Essays. Oxford: Oxford University Press, 2008, 8.

[14] Mill, John Stuart. On Liberty and Other Essays. Oxford: Oxford University Press, 2008, 21.

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Mill’s On Liberty

February 24, 2012

One Handsome Feller…

Classic for any Red-Blooded American (even if you’re blue blooded!).

http://www.utilitarianism.com/ol/one.html

I think anyone who reads this can walk away with something. This is one of those titles I think everyone should read before they die.

He was a Liberalist whatever that means these days. But in essence he was one of the original philosophers to speak for the Liberty of the Individual, influencing the founding fathers (along with plenty of others) in the formation of the good ole US of A.

Here’s a bio too if anyone is interested…

http://plato.stanford.edu/entries/mill/

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Porn and Obscenity… In 500 words or less… again…

February 24, 2012

R. Dworkin   “Liberalism”

Dworkin’s introduction said he was going to try to define Liberalism. Taking the challenge, I tried to compile a “short” definition of Dworkin’s “Liberalism.” According to Dworkin, “Liberalism” is the political concept holding that government must treat all citizens as equal. This equal treatment requires neutrality on questions of the good life to allow, as much as possible, for free decision and action for each of its citizens with equal concern and respect given to each. In practice, the liberal understands that legislation and social opinions will be biased in favor of the majority and works to establish additional protections and rights for those whose equality may be disrupted by that majority. (all that work and it seems Dan found a summary definition on page 203…)

My interpretation (barring misinterpretation) of Dworkin’s definition would hold that, in the least, each of us is free to choose what we do with respect to morality. If the government is not able to make choices regarding the good life for us, then they should not be able to regulate the porn industry on a whole. It must treat each of us equally in whatever our endeavors so long as they be legal. The regulation of the pornography industry would, I think, reasonably called a tyranny of the majority in assuming the public making the decision is infallible in its knowledge of what is best for others and thereby entitled to make the decisions for those morally lacking individuals.

Many would say that the porn industry is neither a citizen nor an individual with unalienable rights. That is true (unless the rights of corporations law has been passed, which I don’t know). But the porn industry is less the concern here as those working in it. While MacKinnon assumes that all individuals working on the porn industry are coerced by men into working in the industry I am sure there are a large amount who with no education sign up because like many men would love to get paid to have sex. There is also the case of a Mensa members working in the porn industry. Asia Carrera, receiving a full-ride to Rutgers, got into stripping for extra cash during school and soon entered into porn. Certainly she could have done anything she liked but porn was the path she chose.

The difficulty with MacKinnon’s argument against porn is that it is radical. Because her views are so extreme and she assigns so much weight to the degrading nature of pornography she will have a response to any of the more reasonable views I have just given. No matter what one says, take the Asia Carrera example, MacKinnon will contribute that action in some way to the how pornography has lowered value of our culture. There is no reply to MacKinnon’s argument it seems that doesn’t involve the strict regulation of pornography.

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Hate Speech in 500 words or less (Class Blog ketchup for you guys)

February 24, 2012

Scanlon’s  “Content Regulation Reconsidered”

Scanlon makes a statement I agree with, namely, “we cannot understand or interpret the idea that content-based regulation is impermissible without ourselves drawing distinctions between different forms of expression on the basis of their content…and making judgments about the relative value of these expressions.”

With this lesson in hand, Scanlon tweaks his own Millian Principle (162) to include this concept. The original Millian Principle concentrated on citizen autonomy to assure freedom of expression, but ignored the differing “degrees to which content-based restrictions of expression” threaten our expressive autonomy. There are undoubtedly harmful and non-harmful results to a complete freedom of speech and judging these as either harmful or not is the act of putting statements on a relative scale. False advertising is much less harmful than announcing over the public airwaves that a nuclear weapon has been detonated in the capital. Both are harmful but the nuclear weapon “joke” would cause much greater harm due to people’s innate fears of nuclear attacks. There’s also every case in between. Though an extreme example, it hopefully clarifies the sheer complications of trying to make judgments regarding any rights and the complexity in defining permissible and impermissible restrictions where opinions are so varied.

Scanlon gives several examples of areas where the gov’t restricts freedom of expression. These include judgment regulation (false advertising), restrictions on viewpoint discriminations (with very interesting questions about the empirical value of editorial responses) and subject-matter restrictions (Mosley v. Police). In each of these the court seems to be trying to keep its eye out for fairness, distortion of facts, citizen autonomy and, of course, general gov’t interests.

If anything sticks with me from this article (and Stone’s) it’s that the regulation of our freedom of expression is a tricky task for the courts. As an advocate of free speech, I don’t believe that restrictions should be handed down in any haphazard fashion and that any restrictions required to be enacted should be so done with the utmost care and wisdom. While the subjective standard of discerning high and low speech for regulation, I agree, seems overly subjective we all discern between harmful and non-harmful speech. The only difference is whether we believe the harmful sort should be restricted. If we believe it should be restricted, we are eventually forced to draw the line somewhere.

 

Mill’s On Liberty

The Introduction of On Liberty does not argue for any single form of gov’t. What it does is set forth the grounds and restrictions upon which a liberal government should be established, and most importantly warns the citizens of what dangers they need to guard against. The criteria for all of these express the importance Mill assigns to individual liberty above and beyond that of social. In this case, the individual acting as “sovereign over himself” (so long as he does harm to no other) is of the highest importance. Individual liberty must be kept in place for social liberty to thrive for any period of time without becoming a “tyranny of the majority.”

From the beginning he points out that self-government and similar phrases mean only, that the majority or most active group of people rule over minority groups. He advises that just as many precautions should be taken against this influential group in order to prevent a “tyranny of the majority,” whose power is based primarily on societal forces. These are in many senses more difficult to escape as their means of influence are more subtle. The rules of society are generally thought to be “self-evident” and “customary.” The potential harm of these traditional norms is both more difficult to discern and by that very notion more difficult to escape.

Protection against this sort of “tyranny of the prevailing opinion and feeling” would necessarily be a protection against counters from the social, religious, and collective pressures of society, in general, that threaten social and moral repression to an individual’s Liberty of Thought. This initial repression of Thought is the most harmful, eventually hindering the Liberty of Individual Tastes, and the Liberty to Unite, which are based on Liberty of Thought. Those guilty of this kind of repression cannot be demonized since we all have a tendency to expect others to conform to our way of life in some way. This is human nature. It makes the world around us more predictable.

Even after a gov’t has set up the necessary means to a free society (Liberty of Thought, of Tastes, and to Unite, according to Mill) the Introduction urges us not to forget to stay mindful of and vigilant against those, including ourselves, who would influence the thoughts and opinions of others through moral and social repression. Without the individual liberty of self-sovereignty the three tenants of social liberty cannot survive.

 

Brink’s “Millian Principles, Freedom of expression, and Hate Speech”

Though I am what I would call a free speech advocate, I agree almost entirely with Brink on the deliberative approach to regulation of Hate Speech. I would say there is a strong interest for the state to have educated well-versed citizens if it is ruled by them. I believe Mill would agree with this also […]. For any society to function as such it would have to preserve the rights of individuals to develop deliberative competence through education so that they can practice their liberty of thought and express it via liberty of action – comprising the full range of an individuals deliberative capacities.

For any one person there are words or actions that can leave us speechless. Certain historically repressed minorities are even more susceptible to certain attacks that bring in painful historical significance. A certain degree of intimidation can be reached that leave them speechless in the wake of a public debate. If injuries continue they may give up entirely on the political discourse and the process in general. This surrender leaves them even more in the minority as they will be under represented concerning important matters that these groups may have much insight into.

Offense is something that must be tolerated if one lives in a free society, but hate speech is of special concern for two reasons. 1.) It inflicts great harm to the individual or group that it targets, as expressed by the Lawrence quote. We’ve all been called names, but I think we can all think of times where some particular phrase caught us off guard and left us standing there with our heads cocked in shocked silence feeling like maybe we should walk away. We must imagine living in a world where these types of phrases, while not commonplace, are more real on a day-to-day basis than we care to notice. 2.) Following from this, hate speech, because of its injurious nature, even retards the Millian concept of deliberative values. These are the fundamental values by which we judge, form and hold our opinions. If a group withdraws from public debate and discussion because they don’t feel comfortable due to minority-biased attacks they lose their ability to make intelligent decisions.

Though this is dangerous territory Brink has shown that it is worth a try to continue to try forming laws to regulate harmful hate speech. If the First Amendment is supposed to promote the free exchange of ideas we must do what we can to ensure that all parties that are willing to respectably participate are comfortable in getting involved. The restriction of hate speech as a separate more harmful class from discriminatory speech should be enforced in a scaled manner even if it is more time consuming and labor intensive. The mutual respect of all parties must be somehow maintained and deliberative values must be upheld before fundamental liberties can be expressed.

 

Sumner’s  “Incitement and the regulation of Hate Speech in Canada”

Sumner analyzes the interpretation of a Canadian hate speech law, determined in R. v. Keegstra, under the Millian microscope an attempt to determine if the law holds up to the idea of classical liberal free speech. Describing the courts decision he notes that the interpretation of the law comes down to the explication of a single phrase: “wilful promotion of hatred” (Sumner, 213).

Though the parliament seems to have carefully chosen the word “promote” over incite to separate the promotion of hate speech from the incitement of hate crimes, Chief Justice Dickson interpreted “promote” to mean “incite” giving the court freer reign over restrictions of speech. The word “incite” seems to have the connotation of action while hatred is nothing but an emotion, though a potentially harmful one.

The promote/incite distinction should have remained. There is nothing wrong with separating the intent of a hate crime suspect from that of a hate group. Though intent cannot be prosecuted, evidence of links to a crime can be. If a hate crime is committed and a direct connection can be shown such as the person in question being (now or previously) a member of a hate group the authorities should have the clear ability to prosecute both the suspect and the hate group. As originally written by parliament, the law forbidding the promotion of hate speech seems to add more of a potential of including hate groups as accomplices to hate crimes – should that connection be found. As interpreted in the Keegstra decision there may be problems prosecuting hate groups for egging the individuals on because the interpretation. Though they may promote hatred, they may not incite the individual to perform violence on account of that hatred.

The law as handed down in Keegstra was too broad and examples should have been handled in a civil or social manner. To take another account, the protesters of the Westboro Baptist Church should also have the right to protest as they please against any chosen group without criminal prosecution. The opposition must of course be given equal rights to counter-protest. Should a member of that group make actions to harm or proceed to harm a member of the other group and a direct connection can be made to the hate group, then the hate group should be held partially liable for the individual’s actions.

Some may ask about social inequity, but this is a subject for another time. Infiltration of hate into the general population causing social inequality through political and social pressures are prevalent in all cultures including our own. These types of social barriers are harder to break down as they can be seen as part of a societies cultural structure. So even these formerly acceptable walls of veiled prejudice must be broken down brick by brick.

 

MacKinnon’s   “Should we Tolerate Holocaust Denial?”

I agree with McKinnon that we should defend highly offensive and many times inaccurate speech legal based on the weight given to free speech in our society. But she had me wondering how she was going to justify the exclusion of this legal form of expression from academia. I believe I’ve said something like this before, but offense does not give a right to censorship. This time I also had academic censorship in mind.

Though she spent less time on it on this argument in favor of allowing HD in academia, I believe the second argument of relativism (23) was probably the most pressing point. This point stated that all truth is relative so HD should be allowed in to universities to teach their side. We can all agree that history rests on the observer and our history courses are much different than those of other cultures. If we believe this how do we keep historians like David Irving and others from attaining teaching positions at universities? McKinnon’s response to this argument does not do it justice. Her response seems to be unfocused and possibly ad hoc, stating that maybe we should just shut down the history departments and possibly universities themselves. Why keep them open if the instructors do not have any special claim to knowledge? This paragraph was a bit unclear, and the hurried tone may have been because there was not much in response to that. She admits there is relativism in all fields, but her second argument could easily have been used for the first and the second.

Her response to the second argument that complains about administrators who prevent HD participants from gaining positions at universities as self-serving. Here she emphasizes, for at least the second time, that HD proponents are not academics and this has been attested to “sometimes under oath.” A university is a place where people come to gain knowledge in their particular field of interest (this reason contested in the third argument for letting HD proponents into academia). Non-academics should not be allowed to teach those who are paying to come to college for the purposes of knowledge gain and widening their understanding. If we, as students, wanted to learn how not to use our brains we probably could have paid less for that.

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The Human Condition

February 1, 2012

Each is trying not to give himself or herself away,
each is preserving fundamental loneliness, each
remains intact and therefore unfructified. In such
experiences the is no fundamental value.
-Bertrand Russell

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Political Philosophy

January 25, 2012

The Terms… (just to get us started)
1.) Content-Neutral (CN) Restrictions
These are restrictions DESPITE the message being expressed.
Example:
No honking outside a hospital because the patients need their rest.
Means of Restriction:
*Balancing Test – Does the state interest in limiting speech outweigh the free speech interest?

2.) Content-based (CB) Restrictions
These restrictions BECAUSE of the message being expressed. These usually involve protecting the public and national interests.
Examples:
Restrictions on the release of certain classified materials.
Restrictions on hiring teachers who advocate the violent overthrow of the gov’t.
False advertising/libel, because they are obvious lies to the general public in order to receive their money or change their frame of mind for specific purposes.
Means of Restriction:
*Stringency Test – Does the state interest in limiting speech outweigh the free speech interest?

3.) Free Speech Principle
All “high value” speech (excluding low-value obscenity [the fun stuff], defamation, and fighting words*[huh?]) should enjoy the should enjoy stringent protection associated with content-based restrictions. Case by case and treated as content-based. These low value speech categories are those that are considered “no essential part of any exposition of ideas […] any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (315 US 568)(1942).
*Fighting words = phrases that will almost certainly get your ass kicked.

4.) The Subject-Matter Restrictions??
Strangely enough certain specific subjects are treated differently:
-All viewpoints within the subject-matter are restricted. Like Content-neutral, above.
– But they are restricted based on subject matter (content) like a Content-based restrictions.

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Who Told You That…?

January 24, 2012

Over himself, over his own body and mind, the individual is sovereign.

Mr. John Stuart Mill
“On Liberty”

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