Journal of Applied Philosophy, Vol.12, No. I , 199.

Autonomy and the Free Speech Principle

SUSAN EASTON

ABSTRACT Autonomy may be used tojustify free speech claims where the right is raised against the
state but also to justify state intervention intended to promote autonomy which may entail restraints
on others’ speech. The appeal to diversity and autonomy may be used by both sides of the
pornography and censorship debate. Although autonomy may be invoked in defence of
pornography as part of the general defence of free speech, it is argued that autonomy favours the
regulation ofpornography. The ‘freespeech’ defence ofpornography is critically examined here and
an alternative argument advanced for regulation.

Introduction

Appeals to autonomy may be used to justify free speech claims where the right is raised
against the state but also to justify state intervention intended to promote autonomy which
may entail restraints on others’ speech. Although autonomy may be invoked in defence of
pornography as part of the general defence of free speech, it is argued here that autonomy
favours the regulation of pornography. The ‘free speech’ defence of pornography will be
critically examined and an alternative argument advanced for regulation.
The word ‘pornography’ is derived from the Greek and its literal meaning is ‘writing
about whores’. Legal instruments to control pornography have tended to focus on
obscenity, drawn from the Latin word for filthy or disgusting. Legal usage of terms such as
obscenity and pornography does not necessarily conform to ordinary language or dictionary
definitions. In the United States, the Supreme Court stated in Cohen v . Calijimia 403 US 15
[1971] that obscene means pornographic, but many actions which would be described as
obscene by ordinary people, such as photographing individuals in distress, may not contain
a sexual dimension. In England, obscenity is defined in the Obscene Publications Act 1959
in terms of the tendency to deprave and corrupt, that is, with reference to impact rather than
to content, although the two are linked. The Act has been used to prosecute a variety of
publications, including leaflets extolling the use of controlled drugs, but has been primarily
directed at pornography [ 11.
The definition of pornography found in feminist literature and adopted in this paper, has
mostly followed the definition used by Catherine MacKinnon and Andrea Dworkin in
drafting the Minneapolis and Indianapolis Ordinances. They define pornography as
sexually explicit material which subordinates women through pictures or words [2]. It
includes scenes of women enjoying pain, humiliation and rape and penetration by objects or
animals, women bruised or hurt in a context which makes these conditions sexual.
MacKinnon [31 stresses that pornography encompasses more than conventional definitions
of sexual behaviour. It may include materials which are not overtly sexual, such as women’s

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Center, Cambridge, MA 02142, USA.
28 S.Easton

limbs being slowly severed. She emphasises that it is not merely the representation or
depiction of subordination, but an active practice of the subordination of women, an act in
the form of words. The fact that acts may sometimestake a verbal form is already recognised
by the courts in other contexts such as blackmail, while philosophers have recognised the
performative nature of words and the significance of speech-acts [4]. Pornography is active
in the sense of serving as a sexual stimulus. Recurring themes include multiple rape, the
depiction of the enjoyment of rape by the victims despite initial resistance, sadism, and the
profaning of the sacred. Although the latter has received less attention in recent debates, in
the past it has been used as a strong motif of pornographic works, particularly in the writings
of de Sade, and the view of pornography as liberating and radical owes much to the shock
and outrage caused by profaning of the sacred. While the depiction of female subordination
dominates pornographic material, the humiliation and assault of men in pornography would
fall within the definition of actionable pornography used in the Minneapolis and
Indianapolis Ordinances.
A distinction may be drawn between erotica and pornography: the former represents the
world of the sensual and depicts sexual activity but does not present it in a degrading or
dehumanising way. A distinction is frequently drawn between soft and hard-core
pornographic material. The former would include depictions of heterosexual acts but
exclude violence, sado-masochism, buggery and the use of children and animals. But it may
still present heterosexual acts in a dehumanised way. In R. v. Butler 89 Dominion Law
Reports 449 [ 19921the Canadian Supreme Court distinguished between materials depicting
the following: [i] explicit sex with violence [ii] explicit sex without violence but which
subjects people to treatment that is degrading and dehumanising and [iii] explicit sex
without violence which is neither degrading nor dehumanising. Feminist campaigns for
regulation and prohibition are directed at the first two categories, which form the basis of the
following discussion. While obscene materials are controlled to some extent in Canada, the
United States and the United Kingdom, the campaigns against pornography have sought to
fortify the existing legislation where appropriate by various measures, including a criminal
offence of incitement to sexual hatred and civil remedies for persons harmed by
pornography.

Free Speech and autonomy

In England the test of obscenity is whether the effect of the material is, taken as a whole,
such as to tend to deprave and corrupt persons who are likely, having regard to all relative
circumstances, to read, see or hear the matter contained or embodied in it [5]. This has
generated arguments about whose standards should be used, whether or not expert evidence
should be admissible, the unreliability and variability of jury verdicts, the measurement of
depravity and corruption and whether the effect on the state of mind or behaviour of the
consumer should be considered. In England the protection of free speech does not rest on
fundamental constitutional grounds but has developed through the common law and
statutory provisions. Consequently there has been less scope within English law for judicial
consideration of the underlying philosophical principles which might be used to justify free
speech than in the United States, where there has been considerable debate on the
interpretation of the First Amendment. For this reason attention is focused here on
American analyses of the free speech principle.

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The First Amendment to the Constitution of the United States stipulates that ‘Congress
shall make no law . . . abridging the freedom of speech, or of the press, or of the right of
people peaceably to assemble and petition the Government for a redress of grievances.’ [6]
The First Amendment has frequently been cited by pornographers to the extent that it has
been dubbed ‘the pornographers’ charter’ [7]. Some commentators have argued that
pornography should be entitled to the same protection as political speech and any attempt to
suppress pornography exposes the people to further governmental control of other forms of
speech, such as political or literary works.
The scope, meaning and purpose of free speech rights have been reviewed by the courts.
Because the First Amendment requires interpretation, the court may draw on the various
justifications or underlying principles when dealing with specific problems, some of which
have their roots in classical liberal texts, principally in Mill’s On Liberty [8]. In chapter two
of that work he emphasises the importance of free speech to the discovery of the truth and
the problems of presuming infallibility, the need for diversity of opinions and the
importance of moral independence as part of a general principle of liberty. Mill asserted the
individual‘s right to moral independence, to hold unorthodox views without being
stigmatised. Free and open discussion is beneficial in preparing the citizenry to participate
in the process of democratic government. These justifications also find expression in First
Amendment jurisprudence. His harm principle has been used in determining exceptions
and restraints on free speech. Mill contrasted the publication of a critique of private
property in the press with a speech delivered to an angry mob on the same topic outside a
corn-dealer’s. In the latter case the intention is to promote immediate law-breaking and it is
highly probable that will be the result [9]. In contemporary law, the fact of harm is sufficient
to limit free speech in certain circumstances, for example, where the speech itself may
amount to a criminal act, as in the case of incitement, or a civil wrong, such as the tort of
defamation. Conversely there may be some forms of speech, such as criticism of politicians,
which are immune from regulation even though they cause harm. The status accorded to the
harm will reflect the weight given to the competing right or interest.
In Roth v. United States 35 US 476 [ 19571 the Supreme Court excluded obscene material
from the protection of the free speech principle. But subsequently the court experienced
difficulty in defining what constitutes obscenity. A test was formulated in Miller v.
CuZifornzu 413 US 15 [1973], where the court defined obscenity to embrace works which
appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive
way, and which taken as a whole, do not have serious literary, artistic, political or scientific
value [lo]. Using the Miller test the court first considers whether the material in question
appeals to a purient interest; second, whether it portrays sexual conduct in a patently
offensive way, the yardstick being whether the average person would find it offensive, using
ordinary community standards and third, whether the work has any serious literary, artistic
or political vaIue.
Although hard-core pornography is not constitutionally protected, this has not resolved
the free speech problem. American jurisprudence has focused on the definition of obscenity,
the appropriate community standard and on borderline cases of speech and conduct, such as
nude dancing, and the problems of determining the value of the work taken as a whole.
Problems have arisen in relation to the definition of community standards, as the law has
struggled to keep pace with the expansion of the pornography industry and the demands of
feminist groups for a consideration of the political implications of a free market in
pornography and of the determination of the boundaries of the publicand private sphere. In

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30 S. Easton

Stanley v . Georgia [ 111 the Court held that private possession of obscene material was
constitutionally protected: the right to privacy includes the right to read pornography at
home. These issues came to a head in the Court’s consideration of the constitutionality of the
Indianapolis Ordinance, which would have enabled remedies to be awarded to persons
harmed by pornography. In American Booksellers v . Hudnut [12] the Court of Appeals ruled
the Ordinance unconstitutional and this was upheld on a further appeal to the Supreme
Court which struck down the Ordinance as a violation of the First Amendment. The
Supreme Court summarily affirmed the decision of the Court of Appeals and did not rehear
the evidence. It did not challenge the lower court’s acknowledgement that pornography
violated women’s rights in the ways identified by the Indianapolis legislation. The harmful
effects of pornography were accepted but these harms were seen as outweighed by the
harmful effects on free speech as the Ordinance was held to be content-based and
constituted discrimination on the basis of viewpoint.
The argument for autonomy is an important dimension of Mill’s analysis in On Liberty
and is also found in First Amendment jurisprudence. Mill postulates a realm where the
individual is or should be free to make decisions, independent of governmental interference.
This forms the basis of Scanlon’s defence of freedom of expression.
Scanlon [13] sees free speech as essential to living an autonomous life. He constructs his
theory of freedom of expression on a Millian Principle which he sees as compatible with the
exceptions and restraints on free speech we already accept, but which also acts as a brake on
further constraints on freedom of expression. The principle, based on chapter two of Mill’s
On Liberty, identifies certain harms which although they would not arise but for acts of
expression, nonetheless cannot constitute justifications for legal restraints on those acts of
expression. These include harms to individuals which result from their holding false beliefs
arising from exposure to those acts of expression. Harmful consequences also may result
from acts which are carried out as a result of those acts of expression, where the link between
the speech and the subsequent act consists only in the fact that the speech leads the agent to
believe the act worth doing. The individual, Scanlon argues, should be able to hear those
views even if they are likely to foster beliefs which are undesirable or harmful to others, or
lead to harmful actions.
Scanlon sees this principle as a way of explaining the special protection given to speech as
well as constraints found within the case law [14]. Evaluating conflicting arguments itself
constitutes the realisation of autonomy. For an individual to see himself as autonomous he
must see himself as sovereign in evaluating reasons for action, using his own standards of
rationality. Even if he decides that others’ arguments are convincing, the decision must be
based on his own independent reasons for approving their judgement as correct. The state’s
powers are confined to those which citizens may recognise while still seeing themselves as
autonomous agents.
On the Millian Principle there are two ways in which the state’s right to decide whether to
impose legal constraints on free expression must be limited for it to retain legitimacy. First,
an autonomous person would not accede to the state the power to provide protection against
false beliefs and would not defer to its judgement in such a matter. Second, where the state
has prohibited certain conduct and defined it as illegal, the autonomous man could not
accept the right of the state to prevent that conduct by prohibiting advocacy of it. This is a
matter to be determined by the rational agent. The focus of this argument then is on the
limits to the state’s authority rather than on individual rights.
But as most activities could be seen as a form of self-expression, we need to know why

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speech has a special place. Self-fulfilment might justify a strong claim for freedom
generally, as Schauer observes [15], but it does not tell what is special about freedom of
speech. If we cannot distinguish it, but treat it as part of general liberty, it will be hard
for the court to resist appeals to public welfare considerations and the right to free
speech will be easily outweighed by harm to others. Free speech, argues Schauer, has to
be seen as a principle independent from liberty if it is to stand firm against efforts to
restrict it and autonomy is unable to provide the basis for such a principle. Appeals to
autonomy do not tell us why the state’s power to intervene is more restricted when
dealing with speech than with other types of conduct. Nonetheless, he acknowledges
that the autonomy argument does have some value because it raises questions regarding
the motives of potential censors.
But even if it were accepted that autonomy is an important ingredient of the free speech
principle, this does not necessarily mean that pornography should be protected from
regulation. Two issues arise in relation to pornography: whether the free speech interests of
pornographers should be weighed against other rights and interests and whether
pornography should be construed as speech, in the sense of incorporating a communicative
intent. One might argue in favour of regulation by denying, for example, that pornography
is speech and construing it instead as primarily a sexual aid or sex toy designed to evoke a
sexual response rather than a form of communication.
Although Schauer’s view of pornography as a mere sex toy is plausible, it could be argued
that even a sex toy may communicate certain ideas about the nature of women and may
legitimise their degradation and this is what is pernicious about pornography. However, the
fact of communication will not necessarily guarantee special protection. For example, a
misrepresentation regarding an item for sale may communicate certain ideas about that
product. But if that misrepresentation induces a person to enter into a contract, the maker of
the statement will be held accountable for it and not receive the law’s protection. Resolving
the issue of whether pornography is speech does not dispose of the problem of regulation. If
it is seen as speech it might still be controlled where other state interests are present. If it is
not speech it could be controlled more easily, but either way regulation is possible, on other
grounds. If pornography is construed as speech, could one rescue it from regulation by
arguing that the alternative justifications of the First Amendment are relevant to the
protection of pornography? The remaining justifications, the pursuit of truth and the
‘democracy’ argument [16], might be invoked, but these would provide even less support
than the autonomy argument, because a free market in pornography makes no obvious
contribution to truth, or to the democratic process. If the reliance on autonomy and
diversity is the strongest card the defender of pornography can play, then it will require
supporting evidence which so far has not been adduced. The contribution of pornography to
human flourishing or growth has yet to be established. On the contrary it can be seen as
inhibiting the development of aesthetic sensibilities. Although pornographers may appeal to
the need for sexual diversity and choice, it is difficult to sustain this argument, given the
uniformity in the content of the material.
It could be argued, however, that we are dealing with conduct rather than speech which,
apart from borderline cases, lies outside the scope of the free speech principle. Moreover,
pornography cannot be defended as a vehicle of diversity; it is primarily one-dimensional;
there is no room for rival views or images within it, in contrast to literary or artistic works
which frame the erotic within an aesthetic discourse. The range of pornographic genres, for
example, bondage and s-m, rests on a common presumption of dehumanisation and

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degradation. Given the repetitious nature of pornographic material the consumption of

pornography has been compared to the reading of a telephone directory [ 171.
The concept of autonomy does not fit easily Mill’s distinction between self-regardingand
other-regarding action; it may be crucial to individual flourishing but may also be seen as
essential to social progress. Moreover most speech is other-regarding, affecting the interests
of others, so speech may be protected despite the fact that it is harmful to others in many
cases as illustrated by American Booksellers v. Hudnut [18]. Here measures to impose
liability on pornographers were resisted despite the acknowledgement of harms to women
arising from pornography.
An understanding of the justifications of free speech is also important when considering
the ‘slippery slope’ [I93 problem. A number of commentators are sympathetic to feminist
concerns and sceptical of the value of pornography, but fear that once regulation of
pornography is in place, it may be used against other materials, notably artistic, literary and
political works, gay and lesbian literature and some feminist writing. The threat of
censorship, it is argued, may have a chilling effect on publishers as well as on those actually
convicted. The risk of the slippery slope may be too high a price to pay for the benefits of
regulation. While this objection merits consideration it is not an insurmountable obstacle to
regulation. Precise drafting would be essential to exclude political or literary works from the
ambit of the legislation and to counteract its potentially chilling effect. Borderline cases on
the boundary between works of art and pornography are most likely to fall within the
category of erotica rather than pornography or the third category of the Butler classification.
The aims and content of pornography and literary works may be sufficiently distinct in most
cases for the latter not to be caught by carefully drafted legislation. Pornography might also
be construed as a form of commercial speech rather than art or literature which traditionally
has received little protection, as shown by the law of misrepresentation.
Within the existing obscenity laws in England and the United States, the target has
principally been pictorial works, so genuine literary texts have rarely received attention. In
England the public good defence in the Obscene Publications Act acknowledges and tries to
resolve the slippery slope problem. While the burden of proof lies on writers and publishers
to establish the literary or other benefits, the use of expert evidence is admissible. Once the
defence has been made out, the text can be published even if it is obscene. In 1992 efforts to
raise a prosecution against de Sade’s Juliette, a work advocating the assault and rape of
women and children, failed because of the possibility of a public good defence being
invoked, although the decision not to proceed was criticised for stretching the notion of the
public good. Although a distinction has been drawn between advocacy and the criminal act
being advocated, with only the former being given speech protection, a sharp distinction is
hard to sustain when questions of incitement are in issue. In the United States, using the
Miller test the court will consider whether a work has any serious literary, artistic or political
value.
In drafting new legislation, one could formulate the mental element of the offence by
reference to intentionality, to protect non-pornographic works. If intent to sexually arouse
the audience is combined with the actus reus of degrading or dehumanising depictions of
women, this would rescue works which may unwittingly have the effect of arousing some
consumers; these may even include feminist critiques of pornography which describe
pornographic materials as well as educational and medical texts.
A clearly-defined programme of regulation may have some benefits for publishers. Where
there is a climate of uncertainty with some works prosecuted and others untouched, when

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the law is selectively enforced, uncertainty itself can have a chilling effect. If publishers do
not want to risk being caught by an uncertain or unevenly enforced law, they may censor
themselves more rigorously than the law would demand, so that a clear-cut system of
regulation may be preferable.
The slippery slope argument is also unconvincing in so far as we already have a number of
well-established restraints on free speech, which are accepted as legitimate and which have
not generated further censorship. In England and the United States we find laws governing
misrepresentation, breaches of confidentiality, official secrecy, protection of copyright and
protection of reputation. Yet these have received far less criticism than proposals for the
regulation of pornography.
The fact that we are on the slope does not mean that future extensions of the law are
inevitable. Limited resources and a surfeit of materials will mean that attention will be
focused on the forms seen as most harmful, such as child pornography which has become the
major target of attention of the Metropolitan Police. The slippery slope argument therefore
needs to be put in perspective. Although it may sometimes be difficult to know where to
draw the line, it does not follow that restrictions should never be drawn. Even if it is difficult
to decide which side of the line a particular work will fall, this does not invalidate the claim
that some speech is harmful.

The feminist concept of autonomy

While autonomy offers a weak ground of the defence of the free speech principle, it may
provide a strong ground for the regulation of free speech. The development of a choice of
options can be seen as an essential element of a feminist critique of pornography. The
concept of autonomy in the feminist critique of pornography bears little resemblance to the
feeble and diluted version of this notion used by pornographers in their defence of the
industry in terms of a celebration of sexual freedom [20]. The feminist concept of autonomy
is arguably grounded in the heart of liberal theory, in Mill’s work, including chapter three of
On Liberty, and in subsequent developments in liberal thinking, including the work of
Joseph Raz [2 11.

[i] Mill‘s conceptfor individuality

The arguments for diversity, individuality and autonomy as a justification for non-
intervention by governments and public opinion are an important aspect of Mill’s analysis in
On Liberty where diversity is valued for its own sake as well as endowing social benefits.
Mill, in chapter three of On Liberty, analyses the notion of individuality in terms of an
autonomous individual capable of making choices and developing the more noble aspects of
his character. His assertion of the desirability of individual autonomy is bound up with his
fear of the majority. The danger of majoritarianism is precisely that it will ‘fetter the
development, and if possible, prevent the formation, of any individuality, not in harmony
with its ways, and compels all characters to fashion themselves upon the model of its
own’ [22], crushing individual spontaneity. For this reason Mill places great importance on
experimentation and on the exploration of a range of life-styles.
Mill’s model of human flourishing, construed in terms of choices, contrasts sharply with
the homogeneity of pornography. The recurring theme of pornography is a perception of

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women which stresses the characteristics of subordination and passivity. The various genres
refract this central theme, intended and used for mass consumption. Because pornography
expresses and perpetuates negative ideas and images of women it contributes to a climate
very close to that which Mill saw in majoritarianism in which women’s development is
restricted. For this reason it arguably does not deserve free speech protection.
The focus on autonomy is also important to the feminist critique of pornography because
of the difficulties of proving harm and causation of sexual and violent offences [23]. This
paper does not consider in detail the evidence of causation which has been well documented
elsewhere. A review of the research on the impact of pornography was commissioned by the
Home Office and undertaken by Howitt and Cumberbatch who were unable to find
compelling evidence of a causal link between pornography and sexual violence: ‘Incon-
sistencies emerge between very similar studies and many interpretations of these have
reached almost opposite conclusions.’ [24]
An atmosphere in which negative and degrading images of women abound may be
undesirable, regardless of whether a link between pornography and violent crime may be
established. In R. v. Butler 89 Dominion Law Reports 449 [1992] the Canadian Supreme
Court concluded that while a direct link between obscene materials and harm to women may
be difficult to establish, it was reasonable to presume that exposure to it affects attitudes and
beliefs. Pornography appeals only to the basest aspect of individual fulfilment, physical
arousal, and is primarily economically motivated. The Court decided that restraints on free
speech of pornographers are justifiable and a provision within the Criminal Code to control
obscene materials did not violate the Charter of Rights and Freedoms.
Mill stresses the need for all people, not just the intellectual elite, to develop their
capacities. He emphasises that human faculties and moral preferences can be exercised only
in making choices:
The mental and moral, like the muscular powers, are improved only by being
used . . . He who lets the world, or his own portion of it, choose his plan of life for
him, has no need of any other faculty than the ape-like one of imitation. He who
chooses his plan for himself, employs all his faculties.[25]
This presupposes that human development requires both the act of choosing and a range of
options. For this reason he places great importance on experimentation and on the
exploration of a range of life-styles. Mill’s ultimate appeal is to a dynamic conception of
human nature:
Human nature is not a machine to be built after a model and set to do exactly the
work prescribed for it, but a tree which requires to grow and develop itself on all
sides, according to the tendency of the inward forces which make it a living
thing. [26]
This analogy of the tree used by Mill, and his general concern to promote individuality, may
be seen as providing a foundation for a theory of autonomy.
If we apply Mill’s argument to pornography, one could argue that it is this truncation of
other areas of lived experience which is one of pornograhy’s most pernicious features.
Although it might be claimed that pornography could be retained alongside these other
forms, these other forms are unlikely to ‘take off if the depersonalisedand reductionist view
predominates. Mill argues that society has ‘fairly got the better of individuality’ [27] and
that the worst effect of the loss of individuality is the morbid concern with others’ opinions,

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which extends from other-regarding to self-regardingactions, generating conformity. If this

occurs human faculties wither and die. When he addresses the issue of censorship in chapter
three, his concern is with the censorship imposed by popular opinion, or custom, rather
than state interference:
Thus the mind itself is bowed to the yoke: even in what people do for pleasure,
conformity is the first thing thought of; they like in crowds. [28]
Self-development for Mill is construed in terms of the resistance to conformity and the
development of individuality which enhances the quality of life:
It is not by wearing down into uniformity all that is individual in themselves, but
by cultivating it, and calling it forth, within the limits imposed by the rights and
interests of others, that human beings become a noble and beautiful object of
contemplation; and as the works partake the character of those who do them, by
the same process human life also becomes rich, diversified, and animating,
furnishing more abundant aliment to high thoughts and elevating feelings . . . In
proportion to the development of his individuality, each person becomes more
valuable to himself, and is therefore capable of being more valuable to others.
There is a greater fulness of life about his own existence, and when there is more
life in the units there is more in the mass which is composed of them. [29]
In a conformist society exceptional and ordinary individuals are inhibited from
flourishing. Individuality for Mill is a means of resisting despotism; conversely the crushing
of individuality i s construed as despotic. Just as individuals need their boots individually
made, he says, so individuals need different conditions for their spiritual development.
Yet far from promoting such spiritual development, pornography actually stifles it. It is
intellectually undemanding, offering a repetition of images, and even the written material
makes negligible demands on the consumer. Instead of generating new ideas or a range of
choices, pornography rather reaffirms a view of women as irrational dehumanised objects.
In pornography women are denied the capacity to struggle and from the outset are denied
full consciousness, and are reduced to the level of mere animal existence, to an object of the
male gaze, rather than self-consciousness [30]. Resistance to rape is depicted as feigned
rather than genuine, for coerced sex is seen as awakening their true nature as sexual beings.
The depiction of women as creatures without autonomy contributes to a general climate in
which these assumptions are perpetuated and expressed. This depersonalisation is also
expressed in the terms used to describe them in pornography, as animals, or in terms which
reduce them to parts of their bodies [311. Their objectification rests in their desire to become
an object for others.
Pornography constitutes the triumph of the irrational, in its celebration of violence, and
its identification of women with the realm of the irrational rather than the realm of logic and
rational reflection, and other dimensions of women’s behaviour and abilities are precluded,
inhibiting the capacity for self-development. Not only are women portrayed as irrational
within pornography, but campaigners against pornography are presented as deranged
harridans and killjoys and their efforts to challenge pornography have been strongly
criticised as irrational. Simpson [32], for example, reviewing the work of the Williams
Committee on which he served, dismisses the work of Susan Brownmiller and Andrea
Dworkin as political propaganda and rallying war cries rather than objective rational
discussion. His comments on the feminist view of pornography seem out of touch with what

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was happening in England and the United States at the time. He argues that it is useless to
look to Andrea Dworkin’s work for any coherent legislative proposals or practical
programmes as she is concerned only with consciousness-raising, yet Dworkin was at the
time active in the movement for law reform and was subsequently responsible, with
MacKinnon, for the major legislative initiatives in this area in Minneapolis and In-
dianapolis. Nevertheless an important strand of feminist thinking, associated with de
Beauvoir [331 and subsequently developed by modern feminist writers [34] aims to
reconstruct the feminine as rational and to strengthen women’s perspectives within political
philosophy and epistemology.
A defender of pornography could not seriously argue that pornography adds to the sum of
human knowledge or promotes a questioning attitude, or introduces new ideas or challenges
established ideas. It would be hard to defend it on grounds of novelty given the uniformity of
the content. Of course pornography is not alone in its lack of originality. Party manifestos
and politicians’ speeches may not provide new ideas or new knowledge. They are protected,
however, because of their contribution to political speech, enabling citizens to participate in
decision-making, a dimension lacking in pornography.
While there may be evidential and methodological problems in using the harm principle
as a foundation for a theory of regulation, other strands of Mill’s work, including his analysis
of diversity in On Liberty, may be deployed. In addition, his analysis of gender inequality in
Thesubjection of Women [35] emphasises the need to broaden the options for women. ‘What
is now called the nature of women’, says Mill, ‘is an eminently artificial thing- the result of
forced repression in some directions, unnatural stimulation in others.’ [36] No other
subordinate group, he says, has had its nature so distorted by its relationship to the
dominant group. Using the metaphor of the tree, he argues that the capacities of women
which benefit men are developed to the detriment of these other dimensions:

. . . other shoots from the same root, which are left outside in the wintry air, with
ice purposely heaped all round them, have a stunted growth, and some are burnt
off with fire and disappear . . . men, with that inability to recognise their own
work which distinguishes the unanalytic mind, indolently believe that the tree
growsofitself. . .[37]

Mill argued that the solution to the stunting of women’s capacities lay in law reform,
including the extension of suffrage and the protection of married women’s property rights,
but the regulation of pornography might be included in a modern programme of reform.

[ii] Perfectionism and autonomy

Mill’s concept of human flourishing is further developed by Raz in The Moralicy of
Freedom [38], where he posits the model of an autonomous society in which autonomy is
defined as the capacity to choose activities, pursuits and relationships. Autonomy is the
essential element of a good life. For it to exist the following pre-conditions must be met: the
appropriate mental abilities, namely, rationality, an adequate range of options and moral
independence, that is, freedom from manipulation and coercion by others. The choice of
options should embrace a choice of goods rather than simply a choice of good and evil. We
cannot talk of autonomy when there is no choice of worthwhile options. Human flourishing
is possible only where there is autonomy.

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 Autonomy and the Free Speech Principle 37

If autonomy is prized in society, this will lead to moral pluralism in the sense of a variety of
forms of life each exemplifying diverse and incompatible virtues, such as action and
contemplation. Although the existence of a plurality of virtues and values may generate
intolerance, the value of autonomy itself may promote tolerance as the basis of a doctrine of
freedom. But while the pornographer appeals to toleration for the lowest pursuits, the
feminist critic argues for toleration of competing but valuable choices, to promote rather
than to undermine autonomy, to create a climate in which women can develop freely and
express their individuality in areas including sexuality, but extending beyond it.
According to Raz the promotion of autonomous lives is a prime purpose of government.
To achieve the goal of autonomy may mean positing duties which go beyond the negative
duty of non-interference, as a positive claim-right which entails corresponding duties on the
state. The state should be concerned with what Raz describes as ‘perfectionist goals’ but
critics might see as paternalist aims. It follows that the government has an obligation to
provide a range of options which enable individuals to lead autonomous lives and to
encourage those options which promote autonomy and to discourage those which
undermine or negate autonomy.
On this argument there would seem to be scope for regulation or intervention to
discourage the consumption of pornography in favour of more edifying options. Porno-
graphy could be seen as an option which undermines autonomy, and the cultural effects of
pornography could be seen as an unacceptable cost of pornographers’ free speech rights.
The demand of feminist campaigners for the regulation of pornography would therefore
be justifiable within the terms of Raz’s argument. It is grounded in the recognition that
pornography contributes to a climate in which women’s capacity to develop their human
faculties is undermined as images are conveyed which emphasise their subordination and
unreflective nature. An analogy here might be drawn with racist language and literature
which adds to an atmosphere in which ethnic minorities are derided and treated without
respect. It is not of course the only influence on the culture of racism and members of those
minorities may avoid reading such literature. Nonetheless they may be confronted with a
variety of modes of expression, including graffiti and racist attitudes and harassment which
are not easily avoidable. While it may be hard to establish conclusively a causal link between
the distribution of racist literature and racist murders, as in the murder of Stephen
Lawrence in south-east London in 1993, nonetheless the pamphlets of the British National
Party reinforce, legitimise and consolidate racism. As one resident, subjected to various
forms of harassment, described her daily life: ‘I live, breathe and eat racism’. Likewise
pornography is not the only source of expression of misogynist attitudes, but its widespread
acceptance as a popular cultural form reinforces and legitimises those attitudes and the
practices which reflect them.
Using a Razian argument, one could therefore justify coercion to prevent harm if the
harm interferes with autonomy but not for other reasons. If the demand for the regulation of
pornography is not based on arbitrary grounds, but rather the promotion of opportunities
for well-being, it would seem to be justifiable.
Because Raz’s approach does not protect morally repugnant acts or forms of life, it can be
usefully deployed in the feminist critique of pornography. From a libertarian perspective, of
course, pornography would be seen as one possible option, whatever view one takes of its
desirability, and a devotee might defend the celebration of sado-masochism found in porn-
ography as an exercise of freedom of choice. Groups representing paedophiliacs, such as
PIE, have defended their sexual interest in children in terms of the right to explore their own

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38 S . Easton

sexuality. The actions of sado-masochists were defended on this basis of individual choice in
the Countdown on Spanner Campaign, which campaigned against the conviction of five
men for offences under the Offences against the Person Act 1861 where the parties had
consented to the assaults and they occurred in private [39]. But if autonomy, on Raz’s
argument, is valuable only if directed at good options, there is no reason for the state to
provide or to protect worthless options. The state owes a duty to its citizens to create an
environment in which these options can flourish. The presence of bad options contributes
nothing to the value of autonomy and cannot help to satisfy it.

Susan Easton, Department of Law, Brunel University, Uxbridge, Middlesex UB8 3PH, U K .

NOTES
[l] In R. v. Skirking, R . v. Grossman (1985) Crim. LR 317 a conviction under the OPA was upheld in relation to
the publication of a pamphlet entitled ‘Attention Coke Lovers: Free Base, the Greatest Thing Since Sex’. In
London, for example, the work of the Obscene Publications Branch of the Metropolitan Police is now geared
towards child pornography and materials containing bestiality and homosexuality. (Interview, Superintendent
M. Hames, October 1992).
[2] MACKINNON, C. (1987) Feminism Modified (Cambridge, Mass., Harvard University Press); (1989) Toward Q
Feminist Theory of the State (Cambridge, Mass., Harvard University Press).
[3] MACKINNON, C. (1984) Brief, Amicus Curiae, American Booksellers Association v . William H . Hudnut III, US
District Court, Southern District of Indiana, Indianapolis Division.
[4] SEAKLE, J . (1962) Meaning and Speech-Acts, Philosophical Review; (1965) What is a speech-act?,
Philosophy in America, ed. M. Black (London, Allen and Unwin).
[5] Section I[i].
[6] The right will be upheld against state legislatures as well as against Congress, Gztlow v. New York 268 US 657
(1925).
[7] For example, the First Amendment Awards offered by Playboy.
[8] MILL, J. S. (1966) On Liberty (London, Fontana). See also D. RICHARDS (1989) Foundations of American
Constitutionalism, (Oxford, Oxford University Press) on the impact of English liberalism on the Supreme
Court.
[9] MILL, J. S.,op. cit., p. 184.
[lo] For further discussion of the problems raised by the Miller test see Mishkin v. US 383 US 502 (1966), Paris
Adult Theatres 1 v . Slaton 413 US 49 (1973) and Schad v . Borough ofMount Ephraim, 452 US 61 (1981).
[ l l ] 394 US 557 (1969).
[12] See American Booksellers v . Hudnut, 771 F.2d.323 (7th Circuit, 1985); Hudnut v. American Booksellers’
Association,475 US 1132(1986).
[13] THOMAS SCANLON (Winter, 1972) A theory of freedom of expression, Philosophy and-Public Affairs, Vol. 1,
Number 2, pp. 20k226.
[14] ibzd., pp. 214.
[15] SCHAUEK, F. (1982) Free Speech: A Philosophical Enquiry (Cambridge, Cambridge University Press).
(161 See MEIKLE~OHN, A. (1965) Political Freedom, New York; New York Times v. Sullivan 376 US 254 (1964).
[17] FEINBEKG, J. (1987) Offece to Others (Oxford, Oxford University Press).
[18] American Booksellers v. Hudnur, 771 F.2d.323 (7th Circuit, 1985); Hudnut v. American Booksellers Association,
475 US 1132 (1986).
[ 191 See, for example, BURSTYN, V. [ed.] (1985) Feminists against Censorship (Toronto, Douglas and McIntyre).
[20] The claim of the Playboy Foundation, for example, that it promoted human development by funding sex
research and supporting easy access to abortion has been met with some scepticism by feminists who see the
sexual freedom extolled in the magazine as essentially men’s freedom and the defence of abortion as primarily
aimed at furthering men’s interests. See MACKINNON, C. Feminism Unmodified (1987) (Cambridge, Mass.,
Harvard University Press); (1989) Toward a Feminist Theory of the State, (Cambridge, Mass., Harvard
University Press).
[21] RAZ,J. (1986) The Morality ofFreedom (Oxford, Clarendon Press).
[22] MILL, J. S. op. cis., p. 130.

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 Autonomy and the Free Speech Principle 39

[23] This is reflected in the conflicting findings of the President’s Commission, the Williams Report and the Meese
Commission. President’s Commission on Obscenity and Pornography (1970) Report (Washington, DC) US
Government Printing Office; B. Williams (1979) Report of the Committee on Obsceniry and Film Censorship
(London, HMSO, Cmnd. 7772); M. McManus [ed.] (1986) Final Reporr of the Attorney-General’s Commission
on Pornography, (Nashville, Rutledge Hills Press).
[24] HOWITT,D. AND CUMBERBATCH, G. (1990) Pornography: Impacts and Influences (London, HMSO). They
point to various methodological problems in the experimental studies, concerning both external and internal
validity, as well as gaps in our knowledge of the relevant variables. They are equally sceptical of claims of the
benefits of pornography.
[25] J. S. MILL,OP.czt., p. 187.
[26] ibid.,p. 188.
[27] ibid.,p. 190.
[28] ibid.,p. 190.
[29] ibid.,p. 192.
[30] SEESARTRE,J-P. (1943)Being andh’orhingness, trans. H. E. Barnes, (London, Methuen).
[31] DWORKIN, A. (1981) Pornography: Men Possessing Women, (London, The Women’s Press).
[32] SIMPSON,A. W. B. (1983) Pornography and Politics (London, Waterlow).
[33] DE BEAUVOIR, S. (1949) TheSecondSex (London, Penguin), trans. H. M. Parshley.
[34] The development of feminist rather than masculinist conceptions of rationality, placing rationality at the heart
of the feminist project, has been advocated by some observers, while others have revealed the difficulties
inherent in the notion of rationality itself. See, for example, COCKS,J . (1989) The OppositionalImagination,
(London, Routledge); PATEMAN, C. (1988) Thesexual Contract(Po1ity);TUANA, N. [ed.] (1989) Feminism and
Science, (Bloomington, Indiana University Press); LONGINO, H. (1990)Science asSocialKnowledge (Princeton,
Princeton University Press); RHODE,D. (1991) Justice and Gender, (Cambridge, Mass., Harvard University
Press); MOLLER OKIN,S. (1991)Justice, Gender and the Family, (London, Harper Collins).
[35] MILL, J. S. (1970) TheSubjectionof Women, (Cambridge, Mass., MIT Press).
(361 ibid., pp. 22.
[37] ibid., at pp. 22-3.
[38] RAZ,J., op. cit.
[39] R . v. Brown, Lucus,Jaggard, Laskey and Carter, The Times, March 12, 1993.

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