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Betty McLellan
(Australia)
Pornography as Free Speech: But is it Fair?
For its legitimation and continued existence in Western societies, pornography depends on a narrow interpretation of the principle of Freedom of Speech, and while the right to free speech is guarded jealously by all who live under a democratic system of government, an interpretation which privileges the rights of one individual over another is not sustainable. In such circumstances, it is inevitable that speech will be available in much greater measure to those individuals with power and influence than to those with little or no power.
In Western democracies, politicians, business and community leaders as well as the media have ready access to speech, which means that the views of the powerful and those who agree with them are freely available to all, while the views of others rarely see the light of day. It is evident, too, that the current system gives men more access to speech than women, non-Indigenous more access than Indigenous, the wealthy more access than those who live in relative poverty.
Such a situation leads me to ask: Can there be freedom of speech in a truly democratic sense unless it is freely available to all? Can there be free speech when it is not also fair speech? How can pornography be described as a free speech issue when it is clearly not fair to those performing in it and to women in general? Following a brief discussion of the inconsistencies surrounding the principle of Freedom of Speech using recent high-profile examples, I point to the feminist maxim ‘the personal is political’ to shed light on the relationship of women to pornography and to support the view that pornography is not fair speech.
Freedom of Speech
There are many arguments in academic literature supporting the democratic principle of freedom of speech.[195] The most popular argument and the one used most often in the general community is called ‘the Argument for Self-Determination’. Freedom of Speech, sometimes referred to as Freedom of Expression, encompasses more than just speech. It includes freedom to say, to read, to do and to go.[196] Those who choose to interpret Freedom of Speech in absolute terms see it as their own individual right to do and say and read and view whatever they like regardless of how their speech and actions may affect others. It is this absolute focus on the individual that is unsustainable due to the fact that it takes little account of the rights of others. When one person demands the right to do whatever he/she likes, it follows that others will be affected and, in many cases, have their own rights to freedom of speech curtailed.
In the Preface to Only Words, Catharine A. MacKinnon alerts readers to the fact that her book “attempts to move people to face the reality of harm done through what is called speech…” The aim of her book, she explains, is “to stop the harm and open a space for subordinated voices, those shut down and shut out through the expressive forms inequality takes” (1994, p. x).
Those who live under a democratic form of government hold democracy up as superior to all other forms of government precisely because it advocates freedom and equality for all its citizens. One would expect, therefore, that an analysis of the inequalities inherent in the way freedom of speech is interpreted would be carried out as a matter of urgency. But no democratic nation has yet had the courage to confront the power elite’s unquestioned right to free speech. It is obvious that those with more power in society have much greater access to speech than those with less power, and that the powerful can subordinate and exploit the powerless with impunity in the name of free speech.
In Unspeakable: A feminist ethic of speech, I introduced the concept of Fair Speech and set up an oppositional relationship between free speech and fair speech, similar to the relationship between free trade and fair trade. My aim was to draw attention to the fact that ‘free’ is not always ‘fair’ and that, for the principle of freedom of speech to mean anything at all, it must incorporate fairness. There is an illusion in Western societies, perpetuated from time to time by government propaganda, that anything called ‘free’ is necessarily good. Free trade, free speech, free choice must all be good because they are ‘free’. Individual freedoms are prized and any hint that governments may attempt to reduce the freedoms enjoyed by mainstream citizens to allow for greater freedom for those on the margins usually brings howls of protest from many in the mainstream. Consequently, fairness is pushed aside and inequality and injustice are allowed to continue in the name of free speech.
Such a situation of inequality and injustice has led me to the conclusion that for free speech to have any legitimacy at all, it must also be fair speech. If justice and fairness are to be served, then any activity which invokes the defence of freedom of speech must be scrutinised on two counts: the power dynamics involved, and the potential for harm to others.
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2 Defining pornography as “graphic sexually explicit materials that subordinate women through pictures and words” Catharine A. MacKinnon and Andrea Dworkin attempted to highlight the fact that pornography harms women by what it says and what it does (see MacKinnon, 1994, pp. 15–16).