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.