J.S. Mill and Extreme Pornography
By Emily Skarbek
Tyler Cowen’s post on Marginal Revolution today gives an interesting take on the effects of jettisoning Millian liberalism from the left / Progressive ideology. Not only would eugenicist ideas have never gained any traction historically, he argues, but the lack of appreciation for the broader philosophy of individual liberty is “one reason why the commitment of the current Left to free speech just isn’t very strong”.
In support of this argument Nick Cowen, PhD candidate in Political Economy at KCL, has just published a paper in American Journal of Political Science titled “Millian Liberalism and Extreme Pornography“. Here is the abstract:
How sexuality should be regulated in a liberal political community is an important, controversial theoretical and empirical question–as shown by the recent criminalization of possession of some adult pornography in the United Kingdom. Supporters of criminalization argue that Mill, often considered a staunch opponent of censorship, would support prohibition due to his feminist commitments. I argue that this account underestimates the strengths of the Millian account of private conduct and free expression, and the consistency of Millian anticensorship with feminist values. A Millian contextual defense of liberty, however, suggests several other policy approaches to addressing the harms of pornography.
This seems perfectly consistent with Tylers’s claims regarding the state of contemporary left ideology and free speech. In the paper, Nick documents the recent the prohibition of “extreme pornography” in the UK under the Criminal Justice and Immigration Act (2008) and its recent extension in the 2015 Criminal Justice and Courts Act, which have reinvigorated arguments for censorship. He shows how feminist supporters of the law, though critical of its implementation in particular cases, inappropriately apply Mill in support of censorship.
“Millian liberalism sees rights as political, not metaphysical. Critiquing the ontological status of rights does not impact straightforwardly on the content of the rights that a Millian defends. The harm principle affirms a tractable set of rights that includes possession of extreme pornography. Rather than rendering the harm principle indeterminate, the “Applications” section of On Liberty helps to establish its boundaries by explaining what counts as private conduct to be protected from state intrusion. Moreover, Mill’s argument in The Subjection of Women does not support censorship.”
“A Millian anticensorship position stands not on affirming rights in the abstract, but on critical observations of what happens when governments censor. In the case of pornography, regulation addressing “cultural harm” leads authorities to punish arbitrarily members of sexual minority groups for the crimes and social problems of the rest of the community. Moreover, far from being valueless, queer feminist accounts of pornography, even extreme pornography, acknowledge its role in education and self-development, including the affirmation of alternative sexual identities. These accounts suggest that Millian defenses of free expression are applicable to sexually explicit expression. The anticensorship position does not affirm unlimited rights to free expression, but proposes boundaries that rule out certain kinds of state intervention, including the ban on extreme pornography as presently constituted.”
The whole paper is worth a read.
Curious, also, how censorship regulation in this case was also coupled with issues of immigration. The 2008 act, in criminalizing extreme pornography, also gave the Secretary of State the power to designate immigrants as “foreign criminals”. This grants the state the ability to subject immigrants to compliance with additional regulations, with failure to do so being imprisonable offences. Progressives at the turn of the century were some of the first to justify immigration restrictions based on only on the quantity, but the “quality” of immigrants (Thomas Leonard eloquently documents this one of my favorite history of economics papers). Both of these positions, it seems to me, stem from the ease at which many on the left are willing to trade-off protection of individual liberty for the belief that the apparatus of the state can be wielded for the particular aims and purposes they themselves support.