Millian liberals are not fond of upstream laws. All things being equal we would, for example, rather ban firing guns at people than ban owning guns. The latter has a far greater effect on people’s liberty (it affects a lot of people who don’t actually fire guns at other people, for example, and it affects a lot of conduct that will not necessarily cause anyone any harm). Putting it another way, we’re wary of laws about indirect harms.
Now, upstream-ness and downstream-ness, or direct and indirect, are difficult to define with precision. Now and then I read facetious comments such as, “Guns don’t kill people; bullets kill people.” Or, “Bullets don’t kill people; bullet wounds kill people.” Nonetheless, the general idea is important. Millian liberals want to forbid as little behavior as possible, and so we look for some proximity between an action and the harm it causes. Conduct that is well upstream from the harm may be fine unless it almost inevitably leads to more downstream actions, or has some very powerful statistical connection with the harms, or perhaps unless relying on more downstream laws alone is futile for some reason. I don’t think the categories of exceptions are closed – it’s all open to argument – but we have a strong suspicion of upstream laws and we think the onus is always on the person who wants them to provide some sort of compelling case for them in each instance.
Many of us do, in fact, support various kinds of laws controlling what weapons people can purchase, what sort of licensing is appropriate, and so on. Even though these are more upstream laws than the law relating to, say, murder or armed robbery, we think that the case has been made out. Exactly what regulation should be used is another matter, and again there is plenty of room for argument, but hopefully you get the idea. We may be so persuaded that ordinary harms of a very serious kind are sufficiently inevitable without more upstream gun regulation that we are prepared to make an exception to our usual aversion to upstream laws.
I don’t want to talk about gun control today, though this business about upstream laws is the loose end from one of my recent posts where I said there was an aspect that I wanted to discuss separately.
I want, instead, to say a bit more about pornography. I think that Millian liberals would be open to laws banning or severely regulating pornography (defined in some workable way, I hope) if we could be persuaded that, downstream, it caused ordinary harms of a significant kind. We’d want to see evidence that the connection is a very strong one, that without an upstream law against distributing and/or purchasing and/or viewing pornography it would be somewhat futile relying on downstream laws against, say, rape or sexual assault. And so on. The exact shape of the argument might not be determinable in advance, but you can get at least a rough idea of the form it would it take.
Making out a case for severe regulation of pornography is going to be harder than making out a case for severe regulation of guns for one obvious reason. Guns, or bullets, or bullet wounds, actually do kill people in the sense that guns make effective murder weapons. From a simple commonsense viewpoint, you’d think that making such weapons less available could reduce the number of murders. By contrast, pornographic books or images or movies or videos are not employed as rape or sexual assault instruments. Generally speaking, these things are not involved in the more immediate downstream actions that cause ordinary harms.
Instead, the argument is going to have to be that pornographic items produce the downstream actions via some sort of psychological effect on people who view them, which “reprograms” them to have more callous attitudes to women, and hence to be more likely to commit rapes, sexual assaults, etc.
The issue here is that it has always been very difficult to demonstrate a strong causal connection of this kind. Most people who analyse the issue from a Millian liberal perspective seem to end up being very skeptical about laws requiring any especially severe regulation of pornography. Given the way I look at the issue, I am open to evidence if it can be provided. In particular, I am open to evidence that some specific and definable kinds of pornography have such a tight connection with ordinary downstream harms that we ought to introduce (or, where it already exists, retain) stringent regulation of these kinds of pornography.
Right now, though, I just don’t see that any especially powerful case has been made out for severe restrictions on any type of pornography involving adult participants. The studies are just too murky and inconclusive, and the arguments tend to rely on emotions, suppositions, and intuitions that have been shaped by the general anti-sex culture in which we live (which has roots that are deeply entangled with religion).
Here’s a post by Stuart Ritchie which goes through just how inconclusive the various studies are that try to draw any conclusions at all about links between (1) the production, distribution, and use of pornography, (2) callous attiudes to women, and (3) downstream harms. As far as I can see, it’s all a wash. The evidence really comes to nothing much either way – and certainly does not add up to a case for wider, more upstream limits on anyone’s liberty. The Ritchie post is only an example of the conclusions that scholarly people seem to come to when they look at the evidence dispassionately.
That’s not to deny that we can make aesthetic judgments about particular images or moral judgments about the messages that they might send (bearing in mind how open images are to multiple interpretations). Some images, or kinds of images, or some narrative types, may have some tendency to convey and reinforce callous attitudes to women. There is plenty of room for literary, cultural, and moral criticism in this area, as long as we bear in mind how contestable this sort of discourse is, and how shaky its ultimate foundations can be in many cases. But as for anything that would convince a Millian liberal to support severe regulation of pornography…no I just can’t see it.