Philoaophy of Law

Philosophy 183

June 3, 1998

In comparing the issues surrounding the distribution and depiction of pornographic and racist materials, very few differences, if any, can be derived from the two. Besides the obvious differences in which one form appeals itself to the adult community and the other to the racist community, the two extremes, nonetheless, fall under a much broader category. They are both recognized and valid forms of speech, and as such are equally entitled to the same constitutional protection provided by the freedom of speech clause of the First Amendment as are various other legitimate forms of speech.

In the situation provided before us, we are asked to determine whether an individual should possess the right to distribute racist films graphically depicting whites verbally abusing, beating, and urinating upon blacks. My immediate response to the question would undoubtedly argue that such morally offensive material should not be allowed constitutional protection. The mere mentioning of such a proposition strikes anger at the heart of moral conscience. But, my moral convictions are not, nor are anyone else's for that matter, sufficient grounds to deny anyone their First Amendment right to freely engage in the distribution of such material if they so desire to do so. Moreover, the First Amendment clearly dictates that Congress shall make no law... abridging the freedom of speech. Thus, as a long established and highly empowered legal doctrine, it must ultimately be respected by the government to the fullest extent. The First Amendment does not state, nor does it imply, that only specific forms of speech which are morally just shall be free of governmental interference, while other forms believed to be offensive to social morality, such as pornography or racist films, shall not enjoy such a privilege. If that were to be the actual case, "freedom of speech," which has long been revered by our nation as one of the fundamental liberties of American history, would further cease to exist. All that would have to be proven to restrict speech would be that the message being expressed contains the slightest mention of morally offensive content. Fortunately, however, the freedom of speech clause grants people the power to convey their opinions in the manner which they deem fit. Thus, if the owner of a video store chooses to sell videos in which African-Americans are repeatedly verbally and physically abused, then ultimately his right to do so must be respected. To ignore that given right solely because the material's content is derogatory is not permitted under the eyes of the Constitution.

Joel Feinberg states that the freedom of speech clause of the First Amendment is not, however, entirely free of restrictive governmental action. He argues that there are essentially two methods which could be applied as an attempt to restrict, or in the worst case scenario, completely circumscribe the production of certain kinds of expressive material, in particular pornography and racist films. He reasons that in order for the prohibition of specific types of material to exist, there must be conclusive proof that the material either: 1) is directly linked to the causation of physical harm against those parties who are negatively portrayed ( i.e. women in porn and African-Americans in KKK films) or 2) must be found to be without question profoundly offensive. Only in the presence of either of these two standards could the authoritative power of free speech be subjected to any forms of restrictions.

However, it is important to note, as even Feinberg himself acknowledges, that there are significant faults with the application of these two standards. They entail exceedingly problematic, and far too often, nearly impossible requirements which must be met in order to place limitations on the First Amendment. To prove that a film is a direct cause of violence against those groups negatively depicted in the films, there must be, as Feinberg contends, an extremely tight correlation between the film and the violent act. There can be absolutely no room for any skepticism to manifest itself. Needless to say, it is very difficult, if not impossible, to prove that such a cause exists. Consequently, the freedom of speech remains rightfully absolute in its power.

In reference to pornography, opponents, such as Mackinnon, of it articulate that porn, especially violent pornography, leads to the male dominated view of women being nothing more than mere sexual property to be acquired and abused at will. That is not to say that all men subscribe to this line of argument but, that there exists a significant number of those who do buy into this line of thinking to make for a valid claim. Taking this into consideration, there is an implied belief that this negative outlook of porn in reference to women produces a substantial increase in the frequency of violent sexual attacks against women. Henceforth, opponents hold that as the porn industry becomes more widespread, so too do the number of sexual assaults against women.

In relation to racist films, opponents debate that the distribution of these films leads to an unflattering perception of African-Americans as beings of inferiority; that they are of a lesser importance. In essence, the African-American community would strongly reason that films defaming African-Americans will eventually produce harmful effects against them.

As one member of the African-American community put it ..."The existence of racist folk films in our midst is a perpetual public laceration of our feelings. We aren't here to be publicly humiliated but, they degrade the very atmosphere in which we breathe and move" (Philosophical Problems In the Law; 216).

Though their arguments may appear seemingly rational, there is nonetheless, a serious drawback with attempting to assert the connection between violence and these kinds of films. The notion that these films are the perpetrators that cause physical violence is highly misleading. It is not enough to say that these films are directly associated with the increase of physical violence because in doing so many other possible factors are left ignored. In fact, the increased phenomenon may very well be explained in terms of another underlying ingredient. In relation to pornography, for example, Feinberg argues that the increase of sexual assaults against women is not a direct consequence of women being negatively represented in adult films. Rather, he explains that the social phenomenon could be best understood in light of the cult of "machismo," a view characterized by a male dominated society. He states that a rise in sexual assaults would not have taken place if society had not already been predisposed to the belief