“Ban” strikes us as a nasty word, conjuring up memories of McCarthyism, the Spanish Inquisition and the third-grade teacher who washed your mouth out with soap. We tell ourselves that bans are never really effective, that it is too hard to distinguish between what should be banned and what shouldn’t. Above all, we know that bans are blunt instruments, and believe that we are too sophisticated to employ such crude tools.
But are bans really so terrifying and impossible?
We are not averse to banning something when we think it is really wrong. We are happy to “ban” murder, rape and even certain types of speech (try yelling “Fire!” in a theater). We do not hesitate over the fact that there will be marginal cases, or that the banned activity will not magically be brought to an end. Our tolerant reaction to pornography stems less from a principled commitment to free speech than from a belief that porn isn’t so bad after all. Shouldn’t we be “sex-positive”? Who doesn’t need a little release?
This casual attitude would be impossible if we cared as much about misogyny as we say we do. Gail Dines, a feminist scholar who has succeeded Andrea Dworkin as the leading voice against pornography, has found that “the most popular acts depicted in internet porn include vaginal, oral and anal penetration by three or more men at the same time; double anal; double vaginal; a female gagging from having a penis thrust into her throat; and ejaculation in a woman’s face, eyes and mouth.” This is not sex-positivity; it is hatred of women. According to one survey, boys are inducted into this ritualized hatred at an average age of 11.
If, despite all that, we are not ready to ban pornography outright, we might begin by enforcing the modest anti-obscenity laws that are already on the books. These testify to the fact that we can indeed legislate for moral ends. Title 18, Section 1465 of the U.S. Code prohibits the “production and transportation of obscene matters for sale or distribution,” including by means of “an interactive computer service.” Patrick Trueman, a veteran of the Justice Department’s anti-obscenity unit, has been calling on officials to do just that.
Restrictions on pornography may come sooner than we think. As the Christian right has lost its power, fears of a censorious “Moral Majority” have receded. This leaves room for activists on the left to criticize the misogyny of porn without seeming like the allies of the unenlightened.
Happily, the left appears ready to take up the censor’s task. Campus activists — once champions of free speech — now call for safe spaces, trigger warnings and other hard limits on speech, especially on speech related to sex. Now that they feel confident in their cultural power, campus activists have ceased to plead for tolerance; they are ready to enforce compliance.
It is easy to criticize such reversals as hypocritical, but they reflect a basic truth, pointed out by Stanley Fish: “There’s no such thing as free speech.” Or, to put it another way, there are always limits on speech. The only question is who places those limits, and where. Even in the most laissez-faire society, some forms of speech will be tolerated while others will not. We say that “fighting words” or “incitements to violence” are not really speech. Why not say the same of pornography, which serves as an instruction manual for the subjection of women?
At this point, someone will object that limitations on pornography would violate the First Amendment. Is that really so?
Well, no, and not just because of the long (and not entirely ignoble) history of American censorship. Recent fights over the free exercise of religion demonstrate that interpretations of the First Amendment can be quite flexible. Law bends to the contours of culture, and more or less liberty will be granted to activities — be they religious or pornographic — depending on how harmful they are perceived to be.
Even the rise of Donald Trump provides evidence of pornography’s social harm. How to understand the success of Trump’s makeup-caked, misogynistic candidacy, except as an eruption onto the political stage of the pornographic subterrain?
If you cringe at Trump’s sneering misogyny, then join me in calling for a ban on the thing that made his crude appeal possible. Pornography’s enjoyments may be private, but its harms are inescapably public.