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Liberty and Pornography

The following is based on an essay appearing in Isaiah Berlin: A Celebration, edited by Edna and Avishai Margalit, to be published by the University of Chicago Press.

When Isaiah Berlin delivered his famous inaugural lecture as Chichele Professor of Social and Political Theory at Oxford, in 1958, he felt it necessary to acknowledge that politics did not attract the professional attention of most serious philosophers in Britain and America. They thought philosophy had no place in politics, and vice versa; that political philosophy could be nothing more than a parade of the theorist’s own preferences and allegiances with no supporting arguments of any rigor or respectability. That gloomy picture is unrecognizable now. Political philosophy thrives as a mature industry; it dominates many distinguished philosophy departments and attracts a large share of the best graduate students almost everywhere.

Berlin’s lecture, “Two Concepts of Liberty,” played an important and distinctive role in this renaissance. It provoked immediate, continuing, heated, and mainly illuminating controversy. It became, almost at once, a staple of graduate and undergraduate reading lists, as it still is. Its scope and erudition, its historical sweep and evident contemporary force, its sheer interest, made political ideas suddenly seem exciting and fun. Its main polemical message—that it is fatally dangerous for philosophers to ignore either the complexity or the power of those ideas—was both compelling and overdue. But chiefly, or so I think, its importance lay in the force of its central argument. For though Berlin began by conceding to the disdaining philosophers that political philosophy could not match logic or the philosophy of language as a theater for “radical discoveries,” in which “talent for minute analyses is likely to be rewarded,” he continued by analyzing subtle distinctions that, as it happens, are even more important now, in the Western democracies at least, than when he first called our attention to them.

I must try to describe two central features of his argument, though for reasons of space I shall have to leave out much that is important to them. The first is the celebrated distinction described in the lecture’s title: between two (closely allied) senses of liberty. Negative liberty (as Berlin came later to restate it) means not being obstructed by others in doing one might wish to do. We count some negative liberties—like the freedom to speak our minds without censorship—as very important and others—like driving at very fast speeds—as trivial. But they are both instances of negative freedom, and though a state may be justified in imposing speed limits, for example, on grounds of safety and convenience, that is nevertheless an instance of restricting negative liberty.

Positive liberty, on the other hand, is the power to control or participate in public decisions, including the decision how far to curtail negative liberty. In an ideal democracy—whatever that is—the people govern themselves. Each is master to the same degree, and positive liberty is secured for all.

In his inaugural lecture Berlin described the historical corruption of the idea of positive liberty, a corruption that began in the idea that someone’s true liberty lies in control by his rational self rather than his empirical self, that is, in control that aims at securing goals other than those the person himself recognizes. Freedom, on that conception, is possible only when people are governed, ruthlessly if necessary, by rulers who know their true, metaphysical, will. Only then are people truly free, albeit against their will. That deeply confused and dangerous, but nevertheless potent, chain of argument had in many parts of the world turned positive liberty into the most terrible tyranny. Of course, by calling attention to this corruption of positive liberty, Berlin did not mean that negative liberty was an unalloyed blessing, and should be protected in all its forms in all circumstances at all costs. He said, later, that on the contrary the vices of excessive and indiscriminate negative liberty were so evident, particularly in the form of savage economic inequality, that he had not thought it necessary to describe them in much detail.

The second feature of Berlin’s argument that I have in mind is a theme repeated throughout his writing on political topics. He insists on the complexity of political value, and the fallacy of supposing that all the political virtues that are attractive in themselves can be realized in a single political structure. The ancient Platonic ideal of some master accommodation of all attractive virtues and goals, combined in institutions satisfying each in the right proportion and sacrificing none, is in Berlin’s view, for all its imaginative power and historical influence, only a seductive myth. He later summed this up:

One freedom may abort another; one freedom may obstruct or fail to create conditions which make other freedoms, or a larger degree of freedom, or freedom for more persons, possible; positive and negative freedom may collide; the freedom of the individual or the group may not be fully compatible with a full degree of participation in a common life, with its demands for cooperation, solidarity, fraternity. But beyond all these there is an acuter issue: the paramount need to satisfy the claims of other, no less ultimate, values: justice, happiness, love, the realization of capacities to create new things and experiences and ideas, the discovery of the truth. Nothing is gained by identifying freedom proper, in either of its senses, with these values, or with the conditions of freedom, or by confounding types of freedom with one another.1

Berlin’s warnings about conflating positive and negative liberty, and liberty itself, with other values, seemed, to students of political philosophy in the great Western democracies in the 1950s, to provide important lessons about authoritarian regimes in other times and places. Though cherished liberties were very much under attack in both America and Britain in that decade, the attack was not grounded in or defended through either form of confusion. The enemies of negative liberty were powerful, but they were also crude and undisguised. Joseph McCarthy and his allies did not rely on any Kantian or Hegelian or Marxist concept of metaphysical selves to justify censorship or blacklists. They distinguished liberty not from itself, but from security; they claimed that too much free speech made us vulnerable to spies and intellectual saboteurs and ultimately to conquest.

In both Britain and America, in spite of limited reforms, the state still sought to enforce conventional sexual morality about pornography, contraception, prostitution, and homosexuality. Conservatives who defended these invasions of negative liberty appealed not to some higher or different sense of freedom, however, but to values that were plainly distinct from, and in conflict with, freedom: religion, true morality, and traditional and proper family values. The wars over liberty were fought, or so it seemed, by clearly divided armies. Liberals were for liberty, except, in some circumstances, for the negative liberty of economic entrepreneurs. Conservatives were for that liberty, but against other forms when these collided with security or their view of decency and morality.

But now the political maps have radically changed and some forms of negative liberty have acquired new opponents. Both in America and Britain, though in different ways, conflicts over race and gender have transformed old alliances and divisions. Speech that expresses racial hatred, or a degrading attitude toward women, has come to seem intolerable to many people whose convictions are otherwise traditionally liberal. It is hardly surprising that they should try to reduce the conflict between their old liberal ideals and their new acceptance of censorship by adopting some new definition of what liberty, properly understood, really is. It is hardly surprising, but the result is dangerous confusion, and Berlin’s warnings, framed with different problems in mind, are directly in point.

I shall try to illustrate that point with a single example: a lawsuit arising out of the attempt by certain feminist groups in America to outlaw what they consider a particularly objectionable form of pornography. I select this example not because pornography is more important or dangerous or objectionable than racist invective or other highly distasteful kinds of speech, but because the debate over pornography has been the subject of the fullest and most comprehensive scholarly discussion.

Through the efforts of Catharine MacKinnon, a professor of law at the University of Michigan, and other prominent feminists, Indianapolis, Indiana, enacted an antipornography ordinance. The ordinance defined pornography as “the graphic sexually explicit subordination of women, whether in pictures or words…” and it specified, as among pornographic materials falling within that definition, those that present women as enjoying pain or humiliation or rape, or as degraded or tortured or filthy, bruised or bleeding, or in postures of servility or submission or display. It included no exception for literary or artistic value, and opponents claimed that applied literally it would outlaw James Joyce’s Ulysses, John Cleland’s Memoirs of a Woman of Pleasure, various works of D.H. Lawrence, and even Yeats’s “Leda and the Swan.” But the groups who sponsored the ordinance were anxious to establish that their objection was not to obscenity or indecency as such, but to the consequences for women of a particular kind of pornography, and they presumably thought that an exception for artistic value would undermine that claim.2

The ordinance did not simply regulate the display of pornography so defined, or restrict its sale or distribution to particular areas, or guard against the exhibition of pornography to children. Regulation for those purposes does restrain negative liberty, but if reasonable it does so in a way compatible with free speech. Zoning and display regulations may make pornography more expensive or inconvenient to obtain, but they do not offend the principle that no one must be prevented from publishing or reading what he or she wishes on the ground that its content is immoral or offensive.3 The Indianapolis ordinance, on the other hand, prohibited any “production, sale, exhibition, or distribution” whatever of the material it defined as pornographic.

Publishers and members of the public who claimed a desire to read the banned material arranged a prompt constitutional challenge. The federal district court held that the ordinance was unconstitutional because it violated the First Amendment to the United States Constitution, which guarantees the negative liberty of free speech.4 The Circuit Court for the Seventh Circuit upheld the district court’s decision,5 and the Supreme Court of the United States declined to review that holding. The Circuit Court’s decision, in an opinion by Judge Easterbrook, noticed that the ordinance did not outlaw obscene or indecent material generally but only material reflecting the opinion that women are submissive, or enjoy being dominated, or should be treated as if they did. Easterbrook said that the central point of the First Amendment was exactly to protect speech from content-based regulation of that sort. Censorship may on some occasions be permitted if it aims to prohibit directly dangerous speech—crying fire in a crowded theater or inciting a crowd to violence, for example—or speech particularly and unnecessarily inconvenient—broadcasting from sound trucks patrolling residential streets at night, for instance. But nothing must be censored, Esterbrook wrote, because the message it seeks to deliver is a bad one, or because it expresses ideas that should not be heard at all.

  1. 1

    Isaiah Berlin, Four Essays on Liberty (Oxford University Press, 1968),p.lvi.

  2. 2

    MacKinnon explained that “if a woman is subjected, why should it matter that the work has other value?” See her article “Pornography, Civil Rights, and Speech,” in Harvard Civil Rights-Civil Liberties Law Review, Vol.28,p.21.

  3. 3

    See my article “Do We Have a Right to Pornography?” reprinted as Chapter 17 in my book A Matter of Principle (Harvard University Press, 1985).

  4. 4

    American Booksellers Association, Inc. et al. v. William H. Hudnit, III, Mayor, City of Indianapolis, et al., 598 F.Supp.1316(S.D.Ind. 1984).

  5. 5

    771 F.2d 323 (US Court of Appeals, Seventh Circuit).

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