Emily Skarbek  

J.S. Mill and Extreme Pornography

Some thoughts on utilitarianis... In Like Flint and Out Like My ...

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.

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COMMENTS (4 to date)
Capt. J Parker writes:
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.

Very well phrased. I am tempted to go further and claim many on the left either deny that there is a tradeoff by defining individual liberty to mean something other than the freedom to engage in behavior they are opposed to or they define the trade-off as one where the aims they support enhance the liberty of historically disadvantaged groups even if such aims appear to diminish the liberty of previously illegitimately advantaged groups.

(BTW perhaps "based on only on the quantity" should be "based not only on the quantity"?)

quidnunc writes:

The professor of my first year philosophy seminar, Wayne Sumner years ago wrote a book titled "The Hateful and Obscene" that you might be interested in. It's written relative to Canadian law from a utilitarian perspective. The reviews on the first page of Google provide a good summary of his arguments, although I see he has revisited the topic in later essays.

RPLong writes:

This reminds me of one of my favorite passages from Mises' Liberalism:

The usual procedure adopted by the critic is to imagine how wonderful everything would be if only he had his own way. In his dreams he eliminates every will opposed to his own by raising himself, or someone whose will coincides exactly with his, to the position of absolute master of the world. Everyone who preaches the right of the stronger considers himself as the stronger. He who espouses the institution of slavery never stops to reflect that he himself could be a slave. He who demands restrictions on the liberty of conscience demands it in regard to others, and not for himself. He who advocates an oligarchic form of government always includes himself in the oligarchy, and he who goes into ecstasies at the thought of enlightened despotism or dictatorship is immodest enough to allot to himself, in his daydreams, the role of the enlightened despot or dictator, or, at least, to expect that he himself will become the despot over the despot or the dictator over the dictator. Just as no one desires to see himself in the position of the weaker, of the oppressed, of the overpowered, of the negatively privileged, of the subject without rights; so, under socialism, no one desires himself otherwise than in the role of the general director or the mentor of the general director. In the dream and wish fantasies of socialism there is no other life that would be worth living.

Nick Cowen writes:

Hi Emily, thanks so much for discussing my article on one of my favourite websites! Writing it involved combing through Mill's complete works in the OLL database. It wouldn't have been possible to do the research without this resource.

We should not eulogise Mill. He had some ghastly views on British imperialism, and his distinction between personal and economic liberty may have made it possible latterly for interventionist progressives to claim the liberal label. But when he did want to defend a right, he was pretty systematic about it. And when it came to immigration, like Mises, he had a fairly healthy scepticism of biological determinism and a strong belief in the possibilities of integration.

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