© 2013 Valerie Dionne

Ishani Maitra, “Free Speech and Its Limits: The Case of Pornography” by Jasmine Phillips


Source: http://filipspagnoli.files.wordpress.com/2008/08/limiting-free-speech.gif

Ishani Maitra is an associate professor of philosophy at the University of Michigan. Maitra’s area of expertise includes philosophy of language, feminist philosophy, and philosophy of law. She also specializes in Women’s and Gender studies. Maitra has given numerous presentations on philosophy’s relation to language, censorship and women’s rights. Most recently, she has produced research on censorship, silencing and pornography.

On September 27, Maitra presented her most recent work “Free Speech and Its Limits: The Case of Pornography” in Lovejoy 215 to a rather large audience for such a small setting. Maitra started the lecture by first giving the audience a brief outline and evidence for her argument before presenting her argument. This reversed strategy of presenting evidence before you present your argument did not seem to sit well with the crowd (but I digress).

Maitra’s first piece of evidence (for her unknown argument at that point) was the definition of free speech, which she referred to as the central question – What counts as speech? What is the principle of free speech and what should count as free speech? As an audience member, I attempted to answer these questions. Obviously, I considered general speech, but the first amendment covers more than just speech; it grants us the protection to wave the flag of another country, to speak out against the government, but it also grants us the protection to not speak if we do not desire. As I pondered the question and the true limits it imposed, Maitra then posed an answer to her questions. She suggested that free speech should be anything and everything that deals with spoken words. However, she quickly pointed out that this view is too limited because some speech is outside the protection of the first amendment. I must admit that her strategy to answer the question she posed and then refute her answer was confusing and displeasing at least for me, but once again I digress. Maitra claimed criminal solicitations, contracts and threats are not protected by the first amendment. She then pointed out that there are many acts that are not speech, but that are covered under the first amendment such as political signs.

As the audience began responding to such a profound, but yet common observation, Maitra began the next point in her argument. Maitra’s next piece of evidence was the formation of our society. She claimed that although we live in democratic society our rights are often compromised for others. For instance, we all want every American to be treated equally, but at the same time we want to preserve liberty. However, liberty and equality are two liberties that conflict with one another. As the audience began processing the presented information, Maitra used the example of racial equality and liberty as further clarification for her first point. Maitra claimed legally prohibiting the use of racial pejoratives in workplaces may/could enhance workplace equality, but such a strategy infringes upon our commitment to liberty and freedom of speech.

As the audience began grasping the concept at hand, Maitra then went on to present her argument.  She claimed that pornography and equality are very conflicting, as conflicting as racial equality and liberty were in the previous example. Maitra asserts that although pornography is covered by the first amendment, it is detrimental to gender equality. She then referenced a MacKinnon study that found that pornography caused sexual violence and limited women to being merely seen as sexual objects, which therefore reduced women as inferior beings. However, I disagree with both points Maitra claimed. I am presuming that there are instances in pornography where women are in control of their sexuality and are in dominant roles.  Essentially I believe there are both good and “bad” examples of submissiveness and dominance in pornography, but this could not be said of racial pejoratives. Racial pejoratives are always negative because of the history behind these racial slurs.  Therefore, you cannot even compare pornography to racial pejoratives. Moreover, Maitra even offered counter evidence, which supported my belief that pornography is not (always) detrimental to gender equality, but rather it could improve gender equality.

Typically when a presenter discusses conflicting information it benefits their argument because s/he could refute the conflicting piece of evidence, but Maitra did not refute this piece of information because it was almost impossible to refute the claim. Therefore, this contradictory piece of evidence definitely flawed her argument even further.  Although Maitra was unable to convincingly advance her argument, the two varying viewpoints she mentioned once again led us back to the central questions- what should count as free speech? Is pornography covered by the first amendment? What are the limits to free speech?

Maitra argues that there are three distinct categories in determining what should be seen as free speech.  These three categories are– covered actions that are not protected (e.g. slander and defamation), covered actions that are protected (e.g. political speech) and uncovered actions. Maitra suggests a partial way to determine what should be covered is to examine the obligations the free speech creates. For instance, she asserts that every utterance that enacts a significant obligation ought to be outside the protection of the first amendment. Essentially, she claims that if (even some) pornography is detrimental to women then pornography should be outside the scope of the first amendment. As Maitra ended her presentation, the audience became very anxious and asked many questions. Some audience members did not understand her argument at all, others challenged her logic and still some did not understand the correlation. From the audience’s questions and body language, many had difficulties with Maitra’s reasoning and I must admit that I too found complications in her approach and argument.

From Maitra’s presentation it appears that she is arguing that equality trumps other civil liberties such as free speech, but she never presented reasons as to why this is the case. I am not suggesting I disagree with her belief because as a black woman I face the double burden of being black and a female, but I would like to know why she believes equality is more important. Moreover, as she mentioned during the presentation, her solution to the problem is very limiting. There are many instances of free speech that fall outside the significant obligation criteria that should be protected under freedom of speech and there are instances that enact significant obligation that should not be protected by freedom of speech. So once again how would we determine the limits of free speech?

Last, I do not believe Maitra fully explained the definition of “enacts a significant obligation.” This lack of clarity definitely weakens her argument, especially since it caused the most confusion. Moreover, the fact that her reasoning, especially the “enacts a significant obligation” criterion was so difficult to explain hints even further that it may not be the best solution. Since Maitra is a philosopher, I would expect her to be familiar with Occam’s razor, which suggests that the hypothesis with the fewest assumptions should be selected, but yet her argument has numerous assumptions and her evidence is unconducive to her arguments.

Overall Maitra’s presentation demonstrates how censorship is not only dictated by societal pressures but also equality. Although I definitely believe there should be limits on freedom of speech, some limitations, such as the limitations Maitra expressed go to extreme measures that I believe would compromise other fundamental civil liberties. This once again brings us to the central questions what are the limits to free speech?

I must admit that Maitra was unsuccessful in convincing me that pornography should not be protected under freedom of speech. However, regardless of Maitra’s lack of persuasiveness her work posed some interesting questions and forced me to reconsider limitations on free speech, which is all that matters right?

Ishani Maitra

Professor Ishani Maitra with philosophy majors who concluded the talk with questions: Jennifer Nale, Erin Fitzsimmons and Uzoma Orchingwa