Looking at Pornography through Habermasian Lenses: Affirmative Action for Speech


What raises us out of nature is the only thing whose nature we can know: language. Through its structure, autonomy and responsibility are posited for us.


The freedom of speech can be viewed as either an inherent personal right that government should protect or as a means to improving government and existence. Once the question of free speech becomes “how free?” we draw lines according to logic, morality, politics, or intuition. ThisArticle asks whether a free society should draw those lines to prohibit pornography. This Article examines the freedom of speech through the lens of Jtirgen Habermas’s philosophy. Habermas’s writings encompass philosophy, sociology, psychology, linguistics, and politics, and he is viewed as a major figure in the resurgence of German philosophy since the Second World War.

His work makes a good foundation for a theory of free speech because he has written extensively about speech and its relation to the conditions under which freedom is possible. Habermas is not a free speech theorist in the usual sense; he is concerned with freedom and speech. He argues that undistorted communication is necessary if societies are to become more free.

Pornography immediately tests his argument. Is pornography speech or action? Can it be said to cause actions that harm others? Do speech acts themselves constitute a harm, and is it justifiable to regulate speech acts that harm others? Is the harm aggravated by the speaker’s relative position of power or the speaker’s (or victim’s) gender, race, social class, or politics? Pornography tests not only the limits of speech but also the limits of art: Can speech be labeled artistic? Who should decide? Does artistic speech deserve special protection? Does the sincerity, motivation, or goal of the pornographic speaker matter?

For these reasons, pornography is one of the best test cases for a freedom-of-speech theory. Pornography directly exposes conflicts in the theory. For example, political speakers’ sincerity or motivation is considered irrelevant when asking whether government should permit speech on the steps of city hall; we focus only on equal access and public safety, and ignore the speakers’ motives, even if unsavory. Arguably, public safety is also relevant to pornography, as is equal access. But when confronted with pornography, we also ask, “Does the pornographer really think this is art or is the pornographer just out to make money?”

Why are sincerity and motivation relevant to pornography but not to politics? Habermas would consider motivation to be relevant in both cases. For this reason, I have found Habermas to be useful in building a theory of free speech.

Part I explores Habermas’s semantic analysis of individual speech acts, asking whether particular speech acts are communicative (roughly equivalent to persuasive) or strategic (roughly equivalent to coercive). In order to determine whether speech is persuasive or coercive, we must ex-amine (1) the potential for speech to affect its audience; (2) whether that effect is bad; and (3) the speaker’s intent with regard to that harm. A purely semantic application of Habermasian concepts fails to adequately support a workable theory of free speech, however, due to practical problems of proof, and because the analysis is vulnerable to personal bias.

Part II suggests that the shortcomings of this semantic application stem from a failure to acknowledge the larger body of Habermas’s writings. The concepts of communicative and strategic speech are useful tools for textual analysis, but Habermas intends them to be applied as a paradigm for deci-sion making structures in society. I extend Habermas’s framework to develop a second conception of speech: the freedom to advocate, including the freedom to persuade by using counterspeech. This new theory encompasses and protects both the verbal and the purely aesthetic elements of a work in response to a legal trend to discount aesthetic elements when determining legal obscenity.

In part III, a fully developed freedom-to-advocate theory, as well as the basic concepts of communicative and strategic speech, are used to ex-amine the arguments of Catharine MacKinnon and Andrea Dworkin. They argue that pornography should be regulated or prohibited because it silences the free speech of women. I will argue that their conception of pornography’s silencing effect arises from a conflation of speech and action.

Dworkin and MacKinnon reject the speech/action distinction because they are skeptical of human rationality. The Dworkin/MacKinnon concept of justice (which includes substantive freedoms) may, however, be ultimately compatible with a Habermasian view of the world (which places faith in the right procedures to get the right answers) if affirmative action is applied to speech. I will attempt to reconcile Dworkin’s and MacKinnon’s concern for access to speech opportunities with Habermas’s conception of an ideal speech situation. I contrast this affirmative action conception of speech, which is grounded in the idea that speech is a means for seeking social good, with liberal Kantian theories of the speech marketplace, which view speech as an end in itself.

Finally, part IV examines the possibility of effective counterspeech to pornography, and concludes that pornography’s social effects can be remedied by giving access to alternative voices.

Disputes over the regulation of pornography are often predetermined by the definition of pornography. To avoid these, I will define pornography to include most sexually explicit material. I intend this formulation to be more inclusive than the legal term “obscenity.” Pornography usually refers to extremely explicit sexual material, or to a violent or degrading form of this, but is often used to include more innocuous material.

I use the broadest possible formulation for several reasons. First, much of the legal effort to ban pornography reaches over the broad scope of most sexually explicit material. Second, the message of sexually violent material has more in common with tamer material like the Sports Illustrated swimsuit edition than is immediately apparent. The distinction between degrading and violent material, and so-called soft-core porn has been criticized as trivializing the violence in all pornography: “If there is no inequality, no violation, no dominance, no force, there is no sexual arousal.” Finally, while I think that the speech theory articulated below can be applied to any conception of pornography, a broad definition is the most appropriate for this analysis because broadly drawn legal boundaries tend to define pornography and its prohibitions. Adopting a narrow definition at the outset would be unrealistic and, perhaps, circular.

It is also appropriate at the outset to note that while I will draw some comparisons between the theory developed in this Article and current Supreme Court obscenity doctrine, this Article does not attempt to show the inconsistencies or tensions within current obscenity doctrine; to pro-pose that the doctrine has been applied improperly in cases of popular musical expression, or to argue that the doctrine fails to take account of contemporary concepts of art. Nor does this Article offer a theory of free speech that depends on a particular interpretation of this nation’s history, the text of the U.S. Constitution, or Supreme Court precedents. The concepts offered in this Article delineate what free speech theory should be in a free society, and presuppose a conception of how a free society might operate. Current obscenity law and free speech doctrine do not yet pro-vide for a freedom to advocate and so they cannot guide us.

Our legal traditions are too constraining to allow a Habermasian analysis of free speech. To appreciate Habermas’s insight, we must discuss what speech itself is and what constitutes a free society. An informed discussion must encompass political, moral, and philosophical considerations of a sort not typically addressed by legislators or judges. Habermas’s philosophy questions the way our society is constructed. From that inquiry we may consider how free our speech should be.

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