The Metaphysical Jungle


Here are a few selections from a terrific article about pornography entitled, The Pornographic State published in 1994. This paper was and is prescient regarding the present state of discourse regarding First Amendment and other rights in America. The article, written by two lawyers and published in the Harvard Review, describes what they call Pornotopia and is on the same track, from a political perspective, as the “Management” book, which came out 7 years later in 2001. I only discovered the article because a Sean O’Reilly (not me) was mentioned in the EDU article.  I have copied some of the salient points below but the article as a whole is, in my opinion, absolutely required reading. The authors have done their homework, and even though it was written in 1994, it as relevant today if not more so, than when it was written. Nobody should be offended by this.


Selections from “The Pornographic State”

The state that we invite you to imagine – a state we call “pornotopia” – is not quite America as Americans now experience it. Yet in significant ways, it is the state that liberal America aspires to be [now is]. Pornotopia emerges as the forces of self-gratification, mass consumerism, and advanced technology merge. The greater this synergy, the greater is the tendency toward a culture in which self-gratification replaces self-realization, in which the irrational consumes the rational, and in which images dominate discourse. Pornotopia is a hormone-happy state. And pornography is the lodestar in this culture of images.

However pornography is understood, there are troubling consequences for the Madisonian ideal when the pornographic experience is coupled with public expression. In this regime, is it any longer possible to differentiate Madisonian self-realization from pornotopian self-gratification? Is it any longer possible for rational logic to trump erotic logic? Is it any longer possible to distance public good from private self-indulgence? And finally, will this regime tend to collapse the First Amendment theory of reasoned discourse into a principle of pleasure? Implicit in these questions is an important point rarely made explicit in current theories of free speech – the potentially corrupting influence of certain forms of private expression on public discourse. The Madisonian First Amendment stands to lose its staying power when it is trivialized, marginalized, and eroticized by a mass commercial entertainment culture wed to self-gratification, particularly pornographic gratification. In such a world, the Madisonian ideal is subverted precisely because key prerequisites for that system are perverted. Succinctly put, the traditional system of free expression misfunctions in our contemporary popular culture. It misfunctions to the extent that we equate gratification with realization [this is a beyond critical distinction]. It misfunctions to the extent that pornographic images masquerade as political ideas. In all of this, the First Amendment is recreated so that personal pleasure is the ultimate political purpose.

As erotic logic overtakes the traditional First Amendment, a liberal justification for constitutional protection – the promotion of individual self-realization – becomes increasingly indistinguishable from Pornotopia’s promotion of individual self-gratification. Jerome Barron and C. Thomas Dienes intimate as much when they observe: “If one accepts the liberty model of speech, it can be argued that even obscene material can aid in self-awareness and self-development. ” Indeed, becoming more self-aware of pornographic desires impels one to develop them further. The Delphic injunction of the Madisonian free speech guarantee is “know thyself”; the Dionysian maxim of the pornotopian First Amendment is “feel thyself.” The primary appeal of self-realization in deliberative democracy is to master oneself; the “primal appeal” of self-gratification in the pornographic state is “to lose one’s self, lose it utterly. ” Pornotopia’s self-gratification radically transforms the First Amendment concept of self-expression. Pornography entices people to lust after sexualized images while readily abandoning the experience of real people. It concocts a pseudo-world in which all too frequently decent talk among men and women succumbs to indecent views of men and women; togetherness surrenders to selfness; and contact and communication between the sexes yield to auto-eroticization pornography leaves the commercial quarters of its producers and enters the private sanctuaries of its consumers, “communication” between producers and consumers might be called discourse in only the loosest sense of the term. Alternatively, in a much more revealing sense, pornography might be seen as a “one-way process ,”in which “the image is not forged for purposes of communication, but for the joy which is the [viewer’s]. The [viewer] and the medium are self-sufficient. ‘Notably, this idea gives new meaning to the popular First Amendment phrase “self-expression.” As reconstructed in the pornographic state, self-expression is not communication about the self to others. It is rather the self silently “talking” back to itself through an image. At the core of this revised notion of self-expression is a revised right to be let alone, a right to self-expression free of the entanglement of communication with living beings. Electronic technology, along with profit and pleasure, plays a crucial role.

Consider in this regard journalist Leon Wieseltier’s general observation: “Where once there were rational deliberations that led to an end, there are now emotional conversations that lead everywhere, and never end.” For that reason, “there is no point in looking for consensus where there is no consensus, or where consensus is available only at a level of such generality that it is morally and politically banal.  Ironically, though modern society prides itself on promoting the free exchange of ideas, in the battle over pornography few, if any, ideas are ever exchanged. Too often, there is controversy but no communication; there is monologue after monologue but no dialogue; and there is clamor but no reflective silence.

[Constitutional] gate keepers John Finnis, Frederick Schauer, and Joel Feinberg…conclude that hard-core pornography is not protected by the First Amendment because it does not satisfy even the threshold requirement of “speech.” Pornography is not “communication” because its intended and actual effect – sexual arousal – is “perceived as a primarily physical reaction.” And it is perceived as such by both the purveyor and the user of pornography. “The panderer is participating in the marketplace of prurient interest,” we are reminded, “not in the marketplace of ideas. ” As for the pornographic consumer, “[t]he fundamental question is simple: does the reader look for ‘titillation’ or for ‘intellectual content’?” Essentially, hard-core pornography is no more than a “masturbatory aid.” “So-called ‘filthy pictures’ and hard-core pornographic ‘tales’ are simply devices meant to titillate. 84 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. I, 29 (1971). 85 Ginzburg v. United States, 383 U.S. 463, 499 n.3 (i966) (Stewart, J., dissenting) (quoting brief of U.S. Solicitor General Thurgood Marshall). Frederick Schauer, Speech and “Speech” – Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 GEO. L.J. 899, 921-22 (1979). 87 John M. Finnis, “Reason and Passion”: The Constitutional Dialectic of Free Speech and Obscenity, 116 U. PA. L. Rev. 222, 236 (1967). 88 Frederick Schauer, Response: Pornography and the First Amendment, 40 U. PITT. L. Rev. 6o5, 607 (1979). 89 Finnis, supra note 87, at 241. 90 Id. at 240 (quoting Ginzburg v. United States, 383 U.S. 463, 470 (x966)). 91 i FINAL REPORT, supra note 18, at 266. Frederick Schauer served as one of the members of the Attorney General’s Commission on Pornography and significantly influenced the contents of its final report. 1392 [Vol. 107:1374 PORNOGRAPHIC STATE. Hence, rubber can never be speech, for “much of what this material involves is not so much portrayal of sex, or discussion of sex, but simply sex itself. ‘ Accordingly, “[the basis of the exclusion of hard-core pornography from the coverage of the Free Speech Principle is not that it has a physical effect, but that it has nothing else.”

Even Freud believed that sublimation, or limiting sexual expression, was essential for the development of civilization. Where do we see the notion of sexual limits expressed in today’s popular culture? However one might conceive of sexuality, in all its forms, the old Christian notion of limiting sexuality has been discounted by popular culture, and Pornotopia captures the problem in terms of realization being occluded by gratification with corresponding results of degraded public discourse. The ultimate expression, in my opinion, of this subjective free-for-all is that emotion triumphs reason. If you think something is true, (irrespective of the “facts”) then it is “true,” and we are seeing this going on in a spectacular way with movements like BLM.  Now, and of course, there are some people who will say that conservatives are guilty of this in regards to the science of climate change, Trumpian misdeeds, etc., and while there may be a grain of truth to that reflection, the far greater problem is the corruption of public discourse by hyperbolic and emotionally elevated “truths,” in lieu of facts on both sides, and that corrupts nearly everything that the Constitution was built on.

Sean O’Reilly, CEO and Founder


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