As is becoming clearer to me, the more I read, the more I realise that the question my thesis is really asking is what disgust has to do with the idea of moral harm. Moral harm is a pretty unusual idea that really only crops up in obscenity and sexual offence law, and there is very little jurisprudential material on the subject in the context of British law. There is, however, an all-important article by Andrew Koppelman, ‘Does Obscenity Cause Moral Harm?’, that I wish I’d read sooner, although US obscenity law has not as yet issued any provision against the possession of obscene material, only distribution, as issued by state law. The right to free speech is of course protected in the First Amendment. There is a subtle but crucially important difference between the meaning of obscenity when applied to the ‘depraver and corrupter’ (the distributor) and ‘the depraved and corrupted’ (the possessor). The CJIA in the UK in 2008 therefore sets a different sort of precedent for moral harm because the possessor is arguably the victim of ‘corruption’, yet also an unofficial accomplice to the already-illegal distribution and therefore culpable for its effects. But what are those effects? I will blithely attempt to make my own clumsy explanation of interventions to suggest the effects here (and one aim of this blog is of course to look back one day and say, ‘o, how little I knew..’).
What does it mean to be morally harmed or corrupted? Feinberg says that ‘morally corrupting a person, that is, causing him to be a worse person than he would otherwise be, can harm him … only if he has an antecedent interest in being good.’ He also identifies three liberty-limiting principles:
(1) the offense principle: it is necessary to prevent hurt or offense (as opposed to harm) to others; (2) legal paternalism: it is necessary to prevent harm to the actor herself; and (3) legal moralism: it is necessary to prevent immoral conduct whether or not it harms anyone.
I should say right now that although my politics veer sharply to the left, when it comes to free speech I am pretty libertarian or perhaps, to rid it of the associations with Tea Parties and to be more accurate, libertine. What does not cause harm, even if it causes hurt and offence, should not be subject to censorship. But in this I refer quite exclusively to consensual sex. In the case of pornography, Mackinnon and Dworkin A (as opposed to Dworkin R, who was more interested in moral harm..) argued in the 80s that pornography was a civil rights abuse, effectively suggesting that it directly caused harm to women. From that point on, obscenity law has tended to muddle up the feminist principles of the ‘harm’ argument and women’s rights and the conservative principle of moral harm. It is why anti-porn feminists are often said to be colluding with right-wingers.
My next question might be what constitutes harm rather than offence or hurt, and does to whom is it done have any effect on stipulating which it is? Suppose a member of the BNP were employed to teach chemistry at a secondary school. Although there is no law to prevent this occurring, if revealed the BNP member would be instantly dismissed. Would this be done on the grounds of harm caused to their pupils, even if there was no reason to think they might be discriminating against, for instance, ethnic minority groups in their teaching, or because their politics were considered abhorrent by the moral majority? As I have mentioned before, disgust and abhorrence are not emotions alien to liberal and left-wingers either (and I am of course susceptible to this kind of disgust myself); they are often just less emotively vocalised, and are less utilitarian in their scope. It is not as easy, then, to define a moral harm as you’d think or to segregrate morality from free speech.
The problem, as usual, is the ‘special case’ that sexual morality throws up for both philosophers and lawmakers, and what can legitimately be said to cause damage to one’s aspirations to ‘be good’. One reasonably coherent conservative defense of censorship I have read is Harry Clor’s, but he makes the mistake of implying that sex always carries with it a particular set of moral implications that spill into other areas of one’s life and are potentially harmful. Why? Because those moral implications should be based upon heterosexual norms, and as obscenity tends to apply to material that depicts sexual deviance, the law condemns its deviance from norms as well as reflecting it: the erotic ‘is an arena in which primitive or powerfully self-centred urges and aspirations are in competition for pre-dominance … [thus] sex can be the inspiration for sustained intimacy and affection with another person– and it can be the occasion for possessiveness, hostilities and humiliation’. Really, he is invoking Kant here, who argued that sex is always self-centred because it focuses on sensation only the subject can feel in that moment. Therefore, he concluded, the other person involved in that moment of sexual congress is always an object. He also stipulated that the institution of marriage would go some way to preventing this, because it committed the couple to being sexually and monogamously bound to one another.
The result of imposing the idea of moral harm onto individuals is to invoke the ‘slippery slope’ argument I made mention of in my last post; that making allowances in the law for too much sexual deviance, even if it is harmless deviance, leads to the normalisation of deviance, straying from moral norms and will make the individual indulge in further, increasingly depraved sexual behaviour, and eventually cause physical bodily harm to a person. The supposition is that moral harm inevitably leads to actual harm when the ‘harmed’ person has, as Feinberg said, little interest in ‘being good’, or enacting sexual norms.
To bring all this heavy burbling about ethics and obscenity law to a close, I’ll briefly revisit the issue of ‘extreme’ images. The original consultation on possession of ‘extreme’ images came about because a man named Graham Coutts killed a woman called Jane Longhurst by strangulation and thousands of pornographic images of auto-asphyxiation were found upon seizing his hard-drive, and the law was created in response to a new loophole the internet threw up — to control access to images that are illegal to distribute in this country but can nevertheless be freely accessed on the internet in the privacy of one’s own home. Is this approach likely to produce greater societal ‘good’? But it leaves the question of what meaning ‘societal good’ can really have long-term when our tastes and priorities differ so greatly. Should we trust our legislators, censors and judges to know what is in our best moral interests, including the possibility of handing us greater freedoms, and make and practise law accordingly? In the case of adult sexuality, my answer is almost always absolutely not. I could also rant at length about the unregulated free market that bombards us with particular messages about sexual norms in order that we buy into particular ideas about sex and spend accordingly and how this has actually led to greater control over the individual’s sexual habits long-term in more pervasive ways, but that’s for another post…