Harms of Pornography and Freedom of Expression
by Seiya Morita
1. Ten Years of the Anti-Pornography and Prostitution Research Group (APP)
Hello, everyone. I am a member of the "Anti-Pornography and Prostitution Research Group (APP)". This is the 10th anniversary year since the APP was founded, and as a part of the projects to celebrate it, this public meeting is held today, with the group: Japanese Women Against Sexual Violence. I would like to begin with introducing a brief history of the APP.
The APP was founded in December 1999. Looking back the social circumstances at that time, it was the year when the Child Pornography Laws in Japan had been finally enacted. Later, a specific law against human trafficking was enacted. Through the two laws, two major crimes were regulated or banned. One is when the victims of pornography and prostitution are children. Another is when trafficking is carried out across national borders. In the latter case, as long as the crime has taken place across national borders, the law can be applied whether the victims are grown-ups or children. What is omitted in the two cases is when the victims are adults and trafficked inside the national border. The human rights of this group are one of the "forgotten human rights" which have been neglected until today.
The history of women's movement as well as that of other human-rights movements has been also the history of gradual recognition and the protection of many "forgotten human rights" as human rights. In previous times only the rights of adult men who had fulfilled the qualifications of belonging to the dominant race and being rich, had been regarded as human rights. Later, the concept of human rights widened little by little. The problem of the harms of pornography, however, has not been taken up as one of these human rights issues. In addition, "sex work theory" has been prevailed (and remains so today). Sexual liberalism has been popular, which advocates that both performing in pornography and engaging in prostitution are such acts of freedom of each individual that you can't find any violation of human rights in them. In such a social climate, some who cared about this started a group called the APP , which included scholars and activists.
What our group undertook firstly was to actually learn about the real conditions inside the world of pornography. That was so important because even those who are against pornography had not understood them sufficiently. So we decided to begin with watching and learning about them. The title of the adult video we firstly watched was "Nyo-han" ("fucking women") produced by Baksheesh Yamashita. This pornography had been notorious for its violence. In the film, an woman is kicked, beaten and punched by many big and strong men for hours without a break, and then she is gang-raped, dragged around by her hair, drenched with vomit, pushed face-first into a toilet bowl, and so on. The film wasn't legally banned at the time, it was legal and openly sold. Worse still, the director of it, Baksheesh Yamashita, had been flattered by the mainstream media and some sociologists for shooting "epoch-making" films. Our first action was to take up the problem of this sort of in relation to violent pornography.
In 2002, when Professor Catharine MacKinnon, a feminist legal scholar who had tackled the problem of the harms of pornography since the 1980s, came to Japan, the APP started to have a relationship with her. She had been involved in activity with victims of pornography for many years, but the APP had not yet reached that level at that time. As our group's name "Research Group" indicates, we were rather a study group than an activist group. In reply to our question of how we could have a relationship with survivors of pornography, she said that if we keep on working with this issue, they would definitely find us. Today we believe things have progressed just as per her advice, though little by little.
Subsequent to this, centering around the concept of "harms of pornography", the APP has carried on investigation and research of the reality of these harms: for example, pornography by peeping films or a new type of violent pornography of via the Internet.
And then, finally an opportunity to forming a new network came. In 2007, Rironsha―a well-established publishing company in Japan for publication of children's books―requested a pornography-director Baksheesh Yamashita to write a book instructing young-adults about sexual intercourse. Staff among Japan's Women's Protection Facilities and their supporters were so shocked by this information, because they knew so many women victimized by the sex-industry were protected in their Facilities. Understanding it as a huge problem, they swung into action by collecting signatures for a petition against publication of the book. In the process, they naturally collaborated with some members of the APP. By 2009, they had formed a new group: People Against Pornography and Sexual Violence (PAPS).
2. Our Peaceful Society Based on the Enormous Violation of Human Rights: Pornography and its Harms
Now I'd like to talk about the main issues of today. Firstly I'd like to compare two cases. One is the 1992 Los Angeles Civil Unrest, and another is Japanese violent pornography. The former event was as follows: Mr. Rodney King, an African American taxi driver, was beaten by four white police officers, and their acts were videotaped by chance and were broadcast on the air on TV. Because the local court found these four police officers not guilty, riots broke out in Los Angeles. Now, when we compare this tragedy with Japanese violent pornography, we can find out a very significant fact.
When almost every African American person saw the film in which Mr. King is beaten by white police, even though they didn't know him at all, they felt like it was him or herself who had been actually beaten in it. For they had experienced daily discrimination and violence by white police. At the same time, some white people who saw the acts in the film, must have been also heavily shocked and felt them as acts of extreme racial discrimination. At any rate it is unimaginable that this film would be sold as an entertainment video for white people to watch and enjoy.
The violence which Mr. King suffered was recognized by the vast majority of the American people, regardless of their race, as a cruel atrocity. However, once the person who is beaten in a film is not a Black man but a women (whether black, white or yellow) and once they are presented in a sexual context, the situation seems to drastically change.
Even though in the film produced by Baksheesh Yamashita the woman is treated far more cruelly and violently than Mr. King, many Japanese men consume it as sexual entertainment, and even activists within human rights groups and progressive organizations don't view this sort of pornography as an awful violation of human rights, on the contrary, they say it is just expression and there is no harm, no abuse, no atrocity in it, so we cannot and must not regulate or ban it. I believe that they certainly regard the film in which Mr. King is beaten as an unquestionable violation of human rights, but as soon as pornography becomes a subject of discussion, whatever happens in it, they seem to regard it as just expression and deserving an object of protection. Here lies the true serious problem of pornography.
When you think about this seriously, you can understand that the poignant question that Catharine MacKinnon present in her article for the 50th Anniversary of the Universal Declaration of Human Rights, namely "Are women human?", assumes a true reality. She asks whether the concept of human being in the Universal Declaration of Human Rights really includes women. If women are truly included in the concept of human being who has holistic human-rights, then why are all kinds of torture in pornography not recognized as atrocity or violation of human rights but merely expression, and why do many liberal and human-rights groups protect them?
The problem of Rironsha Publishing that I took up earlier is one of these examples. The book series that the company published for young adults includes a book that deals with poverty. Its title is "Donto-koi, Hinkon!"(No Fear But Poverty!) and its writer is Mr. Makoto Yuasa who has long worked on poverty issue. You see, who was chosen to write about poverty had long tackled the poverty issue. But, in contrast, who was chosen to write about sexual issue was not a person who had worked against sexual violence or sexual discrimination but a person who had produced very violent pornography for many years. If you do something similar in relation to poverty issues, then you would ask a person to write who has beaten and kicked poor or homeless people to shoot footage and sold the films as entertainment. Were this actually to happen, it would be recognized as an impermissible atrocity. Yet, if the object is women and they are presented in a sexual context, it suddenly converts to just expression and is regarded as no problem.
We categorise the harms of pornography into five major types: "harms in production", "harms in circulation", "harms in consumption", "harms by social pervasiveness" and "harms in existence" of pornography. The violent pornography that I have mentioned is one of the "harms in production". But this type is not the only form of pornography that exerts this type of harm. It can occur also in the case of noncommercial forms of pornography. For example, when anyone is sexually assaulted and has taken photos or movies by the perpetrator, this is one of the "harms in production". In fact, serial rapists often do it in order to enjoy the photos of victims later or to keep victim's mouths shut. Or, when anyone's sexual parts of their body or sexual acts are secretly shot, this is also one of this type of harm.
All of these harms are forms of the "harms in production", but this type is just the first of the harms of pornography. When the materials produced through the "harms in production" circulate in the porn market or on the Internet, this is one type of the "harms of circulation". The materials produced by peep shooting are in themselves a form of serious damage for victims, but when the materials have been disseminated widely, for example, through the Internet, they bring about more serious damages.
Moreover, in the process of consumption of pornography, the harms of pornography can also happen. For example they can happen firstly when you are forced to watch pornography or imitate it in domestic life, or have pornography imposed at the office. Secondly, sexual assaults can be induced by watching pornography. As for the former example, as you know, many official investigations of domestic violence and child sexual abuse prove that such imposition-based harms happen on a vast scale. As for the latter type of harm, those who defend pornography insist that there is no causality between watching pornography and sexual crime, and that such causality has not been proved statistically. However, this argument is nonsense. The argument itself indicates the seriousness of the pornography problem.
I talked about the civil rights movement earlier. If those kinds of films depicting those who have been discriminated against and oppressed historically and socially (say African American people) as objects of humiliation and legitimate slaves were mass-produced and sold as entertainment, and if such materials were daily wached by many white people as enjoyment, and on the other hand, if thousands of African American people were really beaten and lynched in their daily life, then, could anyone insist that there was no causality between these two phenomena, or that instead watching the materials will produces a cathartic effect that actually reduces sex crime against women? I believe nobody would say such thing. Though, as soon as people take up the pornograpgy issue, they urge us to prove causality between the sexually violent materials made for entertainment and the numerous real sexual assaults against women. And this fact tells that MacKinnon's statement is very real. Namely, that women are not truly acknowledged as human beings who have whole human-rights. If so, people would not urge us to prove the causality, rather would certainly admit the very existence and daily consumption of the materials permit such assaults to happen.
What I would like to add at this point is comment on what the power relationship involves. The "freedom of expression" theory says that even if you express some acts in your written materials, the acts will not be realize at all, so your expression should be regarded as freedom. Yet, such an argument ignores the existence of the power relationships in our society. For example, personally I have a stance against the Jieitai (Japanese Self-Defense Forces), but I have no power to ban the Jieitai. On the other hand, the Jieitai is an extremely powerful and violent machine protected by Japanese state power, so even if I loudly insist on dismantling the Jieitai, my exclamation would not have any actual effect. So my expression will remain only expression. Contrary to this, men have much more power than women have in our society, so if men agitate in representational form for any sexual violence against women, it is highly probable that this agitation will turn into the actual act of rape in real life. Such expression doesn't remain only a form of expression, it has real power.
3. Transformation of the Pornography Problem: From the Traditional Approach to the Human Rigths Approach
The traditional framework for the legal regulation of pornography has involved judgment about "whether it is obscene or freedom of expression". "Obscene" is the basic framework used by conservatives to view pornography as a problem of social discipline and public order. On the other hand, "freedom of expression" is the basic framework used by liberals as a weapon to counter unjust regulation of expression by the government. In order to overcome both approaches, American feminists tried to convert the very framework of the problem through pursuing two steps. As a first step, in the 1970's, they re-conceptualized the pornography issue not in terms of a framework of "obscenity" but through a framework of expression that promotes sexual discrimination. This was a very important step of progress, nonetheless, the framework of "expression" itself was retained unchanged. Thus, as pornography remained as "expression", feminists initially saw any legal regulation as irrelevant. Thus they believed they had to fight against this discriminative expression only by using expression against it.
Later, in the 1980's, MacKinnon and feminist writer Andrea Dworkin tried to convert the framework of the problem again. To be sure, they said, it is clearly discriminative expression, but it is not just simple expression, at the same time it is the practice of inequality, which involves concrete harms and violations of human rights. What was at the core of this second framework conversion was to discover harms in the process of producing pornography. Even feminists who were against pornography had shown no interests in the violation of human rights in pornography. They exclusively focused on the effect that pornography has in society. In contrast with such an approach, MacKinnon said that the harms of pornography began with harms that women suffer in pornography. She casts light on the human rights of women who suffer actual torture and violence in pornography. According her veiw, pornography is not only the expression of discrimination but also in itself a practice of discrimination: acts of subordination of women and a concrete violation of their human rights.
If so, since there are specific harms and specific victims involved, it is necessary to assure some legislative remedy to the victims. Consequently, the proposition that pornography is only a form of expression and thus there is no room for the legal regulation loses plausibility. This is MacKinnon's civil rights approach. Because Japanese people are not familiar with the term of "civil rights", we call it a "human rights" approach.
4. Historical Limits of the Concept of "Freedom of Expression"
Such a new approach towards the pornography issue inevitably entails a reconsideration of the very concept of "freedom of expression". Even those who are against pornography often say as a excuse: "we definitely think freedom of expression is an important right, but...". Yet, I think, it is time to reconsider the very concept of "freedom of expression" itself.
I'd like to take up a recent case as material for discussion. The case is about Japanese police unlawfully arresting a left activist who had been distributing political leaflets. When the Supreme Court acquitted him in 2010, a Japanese progressive newspaper said "freedom of expression has won!" in its headlines. When I saw the headlines, I felt some discomfort. To be sure, this repression was an unquestionable violation of freedom of expression, but it also violated more important rights of a citizen. Those who don't have any political power should be admitted the right to criticize their own government. This right is not equal to freedom of expression, but beyond it. More correctly, this right is based on more fundamental rights.
Here, I'd like to pose a question. Do you say "freedom of action" in the same way as you might call fo "freedom of expression"? For the latter case, many people say that any expression should be free regardless of what it says. In the same way, do you say that any action should be free regardless of what it doese? For example, if any legislation restrict some sort of your action, do you say this regulation violates your "freedom of action"? Maybe no one says so. The reason why you don't say something like that is because whteher it should be free or not depends on the nature of the action in concrete terms. Usually you don't think that "freedom of action" pre-exists regardless of its nature and so whenever the government regulates any action, "freedom of action" is violated. But for expression, people assume that "freedom of expression" preexists regardless of its nature and so the regulation of any expression violates "freedom of expression".
There are some core and fundamental human rights absolutely necessary to live a life with human dignity. I'd like to call such human rights "pillar-type rights". On the other hand, there are rights that are not necessarily so. The former types I have in mind include "Jinkaku-ken (right to personal autonomy)", "Byodo-ken (right to equality)" and "Seizon-ken (right to a dignified livelihood)". Without these three fundamental human rights, we are not able to live our lives with human dignity and security, and these rights support all other rights. But the right to "freedom of expression" is different. I'd like to call it "Furoshiki (a traditional Japanese wrapping cloth)-type right". What I mean by this name is that this right is so expansive that it encompasses like wrapping all the three pillar-type rights. Parts of the Furoshiki wrap are covering pillars, but other parts don not cover pillars. One of the former parts is for example the right that a citizen can openly criticize their government. Because this right promotes equality between the powerless and the powerful, it is included in the "Byodo-ken" rights. Also, without such a right, people with power or state power might become so despotic and violent as to abuse, oppress, and even kill the powerless people. Thus it is included in the "Seizon-ken" rights. And needless to say, this right is included in the "Jinkaku-ken" rights, since it is impossible to say that those who are not able to even criticize oppressive powers have any personal autonomy. Therefore, the right to distribute leaflets criticizing the government is such a right of "freedom of expression" that corresponds with the three core rights, so this right should be strictly protected.
But among freedom of expression rights, there are parts which don't drape the "pillars" at all. And so any argument is that as long as they don't violate the "pillar-type rights", freedom should be protected. However, if they violate the "pillar-type rights", they should not be protected as "freedom". In the traditional "freedom of expression" theory, because this Furoshiki wrap is regarded as a nonwoven fabric or a monolith, "freedom of expression" absolutists insist that once the slightest part of the Furoshiki wrap is violated, the entire Furoshiki will be dissolved. But in reality, it is not a nonwoven fabric but just a patchwork quilt. Even if parts that violate the "pillar-type rights" are cut off, other parts that drape the pillars will not fall off on to the ground. These parts will be supported by the pillars.
Then, why do so many people regard "freedom of expression" as if it were a nonwoven fabric or a monolith? I think this is a product of a type of liberalism that has prevailed in the West since the 19th century. At that time, Western governments exclusively protected the rights of people belonging to the upper classes and ignored the rights of powerless people not belonging to these classes. Whenever governments intervened in the field of expression, they always protected the freedom of the former people and trampled that of the latter. Considering this situation, in order to protect the freedom of expression of the powerless people, liberals needed a neutral and abstract "freedom of expression" theory, which insisted that any expression must be free and must not be subject to intervention by governments. In those days, such a neutral and abstract approach was quite progressive. In this sense, it was a product of the historical conditions of the transition period.
But, as time went by, the character of governments has gradually changed. Of course, even today there are many oppressive governments in the world, but at least in the West most governments have come to protect the human rights of the powerless people to some extent. This situation has been realized through the huge efforts and struggles of a vast number of people, as well as of the constitutional reforms that reflect these struggles. As a result, the neutral and abstract "freedom of expression" theory has become outdated, and require change.
One of the crucial points is whether some expression can help to decrease inequality between the powerful and the powerless, or to increase it and to keep the powerless silent and subordinated. The latter expression is an exercise of a "right as privilege", not of any "universal human right". We should think that some expression is just an exercise of a "right of privilege" and other expression is included in the universal human rights, instead of thinking that a neutral and abstract "freedom of expression" exists a priori as one of the human rights. We have to distinguish between them. Thus, the very concept of "freedom of expression" needs to change in its neutral type conceptualisation of the 19th towards a new and more egalitarian version.
5. Towards a Redistribution of "Freedom of Expression"
In general, many people tend to think that the more freedom of expression is protected, the more the total mass of expression increases in our society (the more speech theory). However, this view is one-sided. This is because some expression that discriminates against and attacks a group of people who have been historically oppressed directly deprives these people of expression. Given this fact, some discriminative expression far from increase the "total mass of expression", but it tends to drastically diminish it. For example, when Shintaro Ishihara, Governor of Tokyo, said in the media: "Baba-a (hags) are among the most harmful and sinful in our civilization, because they have no capacity for reproduction", a Japanese feminist group filed a defamation suit against him. Such an example of speech by someone who has great political and official power deprives the speeches of many people. As long as such kinds of expression are protected as part of freedom of expression, the total mass of expression will not increase at all, on the contrary, it will decrease. Before being restricted by law, the expression of powerless people is often restricted and even deprived by some socially or politically powerful people.
Thus, in order to increase the total mass of expression in our society, it is necessary to deprive partly the freedom of expression of powerful people and then to redistribute it to the oppressed people, because freedom of expression of powerful people is based on the silence of powerless people. This is similar to social welfare measures: to collect a part of the income of wealthy people as tax and to redistribute it to poor people by welfare programs. This policy increases the total mass of the well-being of people in our society. Similar to this, redistribution of expression will definitely increase the total mass of expression in our society.
I'd like to insist once again that unless we restrict the expression that discriminates against and attacks oppressed people, it is impossible to protect their freedom of expression.
One of the most obvious forms of discriminative expression is pornography. Pornography is, as I said earlier, not only discriminative expression but also a systematic practice by which men as a gender group oppress and silence women as a gender group. What pornography says is that women (or feminized men) deserve to be raped and treated as mere sexual objects. And tens of thousands of items of pornography are produced, sold and consumed by men every year. Under such conditions, women's expression is systematically oppressed and deprived. This is what pornography do. So when pornography is legally restricted on the basis of a human-rights approach to speech, this does not decrease freedom of expression, but rather increases "the total mass of expression" and the freedom of expression in our society. From this standpoint, the conventional dichotomy: either "regulation of pornography" or "freedom of expression", loses its meaning. Because the former can promote the latter.
Thank you so much for your attention.
Translated by Haruhi Yamamoto, revised by Caroline Norma