Questions for Analysis and Discussion
of Assignment #9: 

Ronald Collins and David Skover,
The Death of Discourse
Part III

Query: Discourse & Intercourse portrays the state of "pornutopia" in which the key elements of Madison's First Amendment will be transformed. The high free speech value of political self-realization will be replaced by passionate self-gratification, and speech in the service of the public good will be no more important than speech in the service of private pleasure. The linear rationality of the printed word will give way to the erotic logic of the electrified and sexualized image. The concept of self-expression will be redefined as auto-eroticization. Liberty will be license, and the ideals of deliberative democracy will be respectable stories told to promote the unbridled hedonism of the pornographic state.  The authors stress that pornutopia is not America as we know it. But, they assert firmly that it is the state to which the American liberal legal and social culture is tending. Do you agree with their characterization? If so, what forces are propelling modern America in the direction of pornutopia? If not, what forces will prevent America from embracing pornutopia?

Query: It is important to appreciate that the authors never assert a priori that pornography categorically corrupts public discourse and subverts the traditional values of the Madisonian free speech system. Indeed, the authors claim that the historical tradition of pornographic lampooning prevalent in the Western culture of the Renaissance and Enlightenment periods may well have served the serious political and social values of the Madisonian First Amendment. What distinctions do the authors perceive between the pornography of old and of today? Do you believe these are distinctions that make a difference from the Madisonian perspective?

Query: As a defender of the Madisonian ideal of deliberative democracy, Professor Cass Sunstein argues for First Amendment protection of much pornography on the basis that "[s]exually explicit works can be highly relevant to the development of individual capacities. For many, it is an important vehicle for self-discovery and self-definition." The authors contend, however, that the First Amendment concepts of individual self-realization and self-expression may be indistinguishable from self-gratification and auto-eroticization in pornutopia. Do you agree? Accepting arguendo that pornutopia transforms the concepts of self-realization and self-expression, should such a transformation be troublesome from the Madisonian perspective?

Query: The authors suggest that contemporary America's ambivalence about pornography has fostered public controversy so divisive and fractionalized that the political community cannot establish even a definitional starting point for rational deliberation leading to meaningful consensus on the First Amendment treatment of pornography. Is this not likely to be the case today for many constitutional issues touching pluralistic socio-political interests (e.g., abortion, affirmative action, etc.)? Or is there anything unique in the battle over pornography that explains why "there are now emotional conversations that lead everywhere and never end"? Does the pornography controversy inform the overarching thesis of The Death of Discourse that "[d]iscourse is dying in America, yet everywhere free speech thrives"? 

Query: In the Section entitled "War & Pleasure in Pornutopia," the authors assert the following syllogistic propositions: "The state of pornutopia is like no other. Sex is pleasure. Sex is war. War is pleasure. Politics is paradox." What do you understand these propositions to mean?

Query: The authors consider the American Booksellers Association v. Hudnut case an illustration of the battle over pornography in modern liberal America. How does the contest in Hudnut between the radical feminist Left and the defenders of the liberal state, represented by Catharine MacKinnon and Judge Frank Easterbrook respectively, inform the greater issues concerning sex and pleasure in pornutopia?

Query: The authors are quite critical of Frederick Schauer, John Finnis, and Joel Feinberg, whose arguments drive a wedge between the artistic and the pornographic by labelling hard-core pornography merely non-cognitive masturbatory aids. Nevertheless, the authors concede that these adversaries of pornutopia have succeeded in alerting us to the real possibility that in pornutopia rubber is speech. Should this seemingly absurd proposition be taken as a real possibility for pornutopia or should it be dismissed as merely the figment of the authors' imaginations?

Query: The authors suggest that the defenders of the Madisonian ideals of deliberative democracy are telling respectable stories when they cling so fiercely to First Amendment protection of pornography. What are the seemingly respectable stories that the authors expose? Are you similarly suspicious?

Query: The authors suggest that the anti-pornography feminists may be resorting to a respectable story of their own in their rhetorical reliance on the harm principle. What is the seemingly respectable story that the authors expose? Are you similarly suspicious?

Query: If the deliberative democracy arguments raised by the defenders of pornography or the harm principle raised by the opponents of pornography are respectable stories or intentional diversionary tactics, are these ultimately unrespectable efforts? Are such respectable stories or diversionary tactics really necessary? Even if necessary, are they ever really respectable?