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Culture War Roundup for the week of March 13, 2023

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Let's assume that the data show that violent porn does not lead to violent tendencies in men who view it regularly - that wouldn't convince someone who believes violent depictions of women are inherently wrong. If it was shown that watching child pornography does not lead to pedophilic abuse in men who view it regularly many people would still feel that child pornography was wrong - even if it was drawn/rendered and not real. Even if it was shown that viewing realistic rendered child porn decreased pedophile offending rates (this is unlikely, some studies show that consumption of this kind of pornography makes offending more likely - but we just don't know), many people would still consider the production of such images wrong, perhaps even criminal.

This is where we defer to the Constitution and more broadly the justice system in a liberal democratic republic like the USA, isn't it? Certainly anyone is free to find anything immoral for any reason, but for criminalizing images, in the USA, there would have to be more justification than just finding them immoral. IANAL and I don't know about the specific legal reasoning behind criminalizing some types of porn, but given the strong free speech protections due to the 1st amendment, I imagine carving out exceptions to free speech in order to criminalize them must involve at least some consideration of the empirical reality surrounding them, such as how fair use for using copyrighted material partly hinges on if it competes directly with the original copyrighted work.

Of course, the moral judgments of society also affect the Constitution and the law, but the system is designed to make such effects go through multiple layers before taking effect. And in the case of criminalizing something purely on grounds of finding it immoral and nothing else, at least in the US, that tends to be a lot of layers. One can circumvent that by stepping up another meta level and replacing the Constitution wholesale in one shot, but that also tends to be difficult mainly for physical reasons.

"Carving out exceptions" isn't exactly what's going on, though the difference may seem pedantic outside philosophy-of-law discussions. The idea is that the original philosophical concept of free speech at the time it was instantiated into the First Amendment wasn't a complete blanket protection of all communication, from which exceptions were carved for practical reasons--it was that several types of communication did not fall under free speech at all, and never did. So categories like slander, perjury, or obscenity occupy their own metaphorical territory beyond the borders of free speech.

You still have the same debate as to where the correct line is between protected speech, and say, slander, though the philosophical grounding may affect aspects of the debate like burdens of proof and so forth. Copyright is an interesting example, because there's a longstanding debate over whether "intellectual property" is a philosophically-grounded right prior to its legal protection--that is, is IP created by or recognized by the laws protecting it. (The various items in the Bill of Rights fall into the "recognized by" category, incidentally.)