A recent debate attended has prompted me to think about the issue of just how exten­sive the right of free­dom of speech should be in a mod­ern soci­ety, specif­i­cally whether pornog­ra­phy should be pro­tected under the guise of free­dom of speech. In prin­ci­ple, we tend to think of free­dom of speech as being pretty absolute, that we should be able to say what­ever we want with­out regard for the con­se­quences and peo­ple should have to accept that. How­ev­er, in prac­tice, this right seems to be abridged all the time. We need a per­mit for most kinds of demon­stra­tions, some things such as slan­der are for­bid­den out­right, and adver­tis­ing is sub­jected to such a dizzy­ing array of restric­tions that one must won­der whether it was ever con­sid­ered free at all.

This issue is this: free­dom of speech, at least on some lev­el, is essen­tial for a free soci­ety. Indi­vid­u­als need to be able to express their polit­i­cal views with­out fear of reprisal. The alter­na­tive, where only cer­tain views are per­mit­ted, is almost by def­i­n­i­tion, a tyran­ny. On the other hand, speech can be dan­ger­ous. It is clearly against the pub­lic good to allow peo­ple to defraud one another and incite­ment to vio­lence, while speech, is also vio­lence and so log­i­cally should be for­bid­den. (It would be strange if a Mafia Don never went to prison because he never killed any­one and merely ordered oth­ers to do it.) So clearly there is at least some kind of com­pro­mise here.

So how does this relate to pornog­ra­phy? Does porno­graphic mate­r­ial fall under prove­nance of free speech or not? Well, to answer that ques­tion, I think that it is per­ti­nent to look at the rea­son for which free­dom of speech exists. The rea­son is, I believe, to pro­tect free­dom of thought and polit­i­cal action. That is, with­out the abil­ity to express opin­ions or to crit­i­cize the gov­ern­ment or other pow­er­ful enti­ties, and with­out the abil­ity to remain informed on impor­tant issues and events, indi­vid­u­als in soci­ety would be unable to exer­cise their duties as citizens; they would be unable to vote or act to pro­tect their rights and would be vul­ner­a­ble to tyran­nies which main­tain con­trol by con­trol­ling pub­lic per­cep­tions. In order for this essen­tial free­dom to be real­ized, indi­vid­u­als need to be per­mit­ted to express their beliefs, ideas, crit­i­cism and they need to be able to share news and infor­ma­tion freely.

How­ev­er, that is exactly where that need ends. While free­dom of speech applied to cul­tural and artis­tic works is a desir­able free­dom they are not nec­es­sar­ily expres­sions of ideas or beliefs and so don’t fall under the cat­e­gory of essential free­doms. Fur­ther­more, there is a dis­tinc­tion to be made between mes­sage being expressed and the mode of that expres­sion. While it might be nec­es­sary to crit­i­cize a pub­lic offi­cial, harass­ing that offi­cial or form­ing dis­rup­tive ral­lies is not nec­es­sary to for criticism; edi­to­ri­als and non-dis­rup­tive ral­lies should be enough.

I think the same prin­ci­ples can be applied to porno­graphic mate­ri­al. Pornog­ra­phy, per se, does not express any ideas, beliefs, or crit­i­cisms to jus­tify it’s inclu­sion as an essen­tial free­dom. I.E. It is not pro­tected polit­i­cal speech. Sec­on­dar­i­ly, even when pornog­ra­phy is used to express an idea, it is rarely so essen­tial to the mes­sage that the same idea could­n’t have been expressed with­out pornog­ra­phy.

So, I don’t think that it fol­lows that free­dom of speech qua essen­tial freedom cov­ers pornog­ra­phy. Now pornog­ra­phy clearly falls under artis­tic and cul­tural free­dom (though tech­ni­cal­ly, every­thing does) and per­haps should be pro­tected under those con­di­tions but this is a much less impor­tant, non-essen­tial, aspect of lib­erty with which there is much more room for debate, I think.

So, in my opin­ion, no, pornog­ra­phy is not pro­tected by free­dom of speech.