Respectable Lies of Deliberative Democrats?

Why, then, should any deliberative notion of the First Amendment cling so fiercely to protection of pornography? There are at least two possible answers. First, the liberal state (unlike its radical and conservative counterparts) will not withdraw constitutional protection from any but the most blatantly harmful forms of pornography. Consequently, the liberal state can only hope to redeem its Enlightenment ideal by endorsing a lie­­that pornography somehow fosters self­realization which in turn fosters deliberative democracy. But insofar as pornography is allowed to flourish, is not the currency of deliberative democracy devalued proportionately? Labeling pornography as a deliberative force does not change pornography, but it may well change democracy. Plato's lie furthered the good of the state; the liberal lie paves the way for its ruin.

Lurking below the first answer is a more cynical one, a second lie. Is it possible that the larger hidden agenda is to perpetuate the lie of deliberative democracy simply to promote pornotopia? Phrased differently, are the proponents of deliberative democracy using a respectable lie to lend credence to an unrespectable state? We raise these questions because we suspect that the defenders of the liberal state realize the dissonance between their First Amendment theory and the culture's free speech practices. Moreover, we suspect that the defenders of the liberal state realize that they cannot endorse virtually unbridled and indiscriminate pleasure as a principle of the First Amendment without embracing hedonism. Ironically, the liberal state appears to invoke deliberative reason in order to realize impulsive passion.

Does it matter whether the arguments advanced by Louis Brandeis in the famous Muller v. Oregon ¹¹¹ brief were false? Is it important whether the brief's claims of harmful effects to women from overwork were scientifically true? Perhaps as a commitment of turn­of­the­century progressive reform, it was of no moment whether there were actual harms necessitating legal protection of women workers. After all, the harm principle was the best argument to tender in an America then ruled by a laissez­faire constitutional philosophy. But can a similar harm principle prevail in today's debate over pornography and the First Amendment? Here again, is there a need for a deliberate lie?