Cults, Porn and Hate: Convergent Discourses on First Amendment Restriction by Dick Anthony and Thomas Robbins Preliminary version; final version forthcoming in a volume co-edited by Philip Lucas and Thomas Robbins

            It was originally contended that in all three communicative subareas problematic speech behaviors have been identified which are viewed by the First Amendment restrictionists as going beyond “only words” and amounting to insidious and coercive instruments of domination producing coerced or compulsive behavior on the part of “victims.” The effects of pornography, racist “hate speech” and cultist indoctrination have been viewed as “visceral” in the sense that they are not mediated by an individual’s cognitive and judgmental processes but rather supposedly by-pass such processes and undermine the critical intellect, thereby eroding the foundations of personal autonomy. Irrational and subcognitive, the effects of pornographic sexual stimulation, emotionally disturbing and provocative hate speech, and alleged quasi-hypnotic cultic techniques to alter consciousness are not viewed primarily as expressions of ideas but rather as somewhat drug-like forces which produce psychic disequilibrium and erode self-control. The alleged irrational and subcognitive quality of these communicative behavior and their consequent coercive or compulsive effect on the recipients of communications are said to disqualify these acts from the full protection which the First Amendment accords “free speech” and religious “free exercise.”

            In an earlier paper we expressed our unease with these innovating restrictionist discourses which propose to narrow the scope of the First Amendment and exclude more types of communicative behavior from constitutional protection. Observers have noted that an implicit rationality criterion potentially disadvantageous to minorities (whose speech is more likely to be viewed as subrational) seems to be entailed.[2] The received distinction between speech acts and non-speech acts appears to be relativized and replaced by indeterminacy standards of rationality, coerciveness, compulsiveness, etc. In this paper we will somewhat diminish the previous paper’s emphasis on continual “rebuttal.” We will restate more clearly and succinctly the basic thesis regarding the interrelationship of three restrictive First Amendment discourses, and we will additionally attempt to contextualize the convergent exclusionary First Amendment discourses in terms of the increasing ambiguity of moral boundaries in American society and the increasingly problematic location of personal responsibility. We will also relate these First Amendment arguments to basic divergent conceptions of liberty.

CULTS AND PORNOGRAPHY

            The First Amendment protects “the free exercise of religion.” Clearly implicit (and occasionally made explicit) in arguments supporting the exclusion of “cult indoctrination” from constitutional protection is the notion that the insidious and coercive nature of persuasive communications in “cults” renders the quality of spiritual expression therein essentially unfree. As such, psychologically coercive cultic religion does not qualify for the protection vouchsafed only to the free exercise of religion. “The language of the First Amendment,” affirms Professor Richard Delgado, “does not support absolute protection for all religious beliefs . . . logically the amendment protects [only] freely held religious belief.”[3]

            A somewhat similar point regarding pornography and the protection of free speech has been made by Catherine MacKinnon

The most basic assumption underlying the First Amendment adjudication is that, socially, speech is free . . .Free speech exists. The problem for government is to avoid constraining that which, if unconstrained by government, is free. This tends to presuppose that whole segments of the population are not systematically silence prior to government action.[4]

 

            In effect, the argument is being made that pornography, which degrades and intimidates women while hyper-stimulating men and thus instigating compulsive male aggressive behavior, does not constitute truly free speech and, moreover, actually imperils the cultural climate necessary for guaranteeing free speech for women.

            Beyond the convergence of theoretical rejections of the applicability of the protective shield of the First Amendment – pornography is not “free speech” and brainwashing cultism is no “free exercise of religion” – there are marked similarities in the particular explanations as to why cultic and pornographic communications are not truly “free.” To some degree in both areas allegations are made that problematic communications are subcognitive and subrational and impact primarily emotions and instincts in a manner which actually subverts personal autonomy and maintains little connection with “the free marketplace of ideas.”

            Delgado and other writers see “cult indoctrinees” becoming disoriented and even incapacitated through a combination of poor diet, sleep deprivation, manipulated social bonding, appeals to fear and guilt, behavioral conditioning and, above all, dissociative and trance states induced through “hypnotic” processes associated with meditation, repetitive chanting, glossolalia and other experiential rituals, which are said to enhance suggestibility and impair judgmental and cognitive functions. Regression to infantile cognitive states and loss of capacity for complex or critical thought are sometimes said to be involved.[5]

            Some of the arguments mustered to support the notion that pornography is not authentic “free speech” warranting the protection of the First Amendment also emphasize the dynamics of emotional arousal and visceral excitation and the consequent subcognitive and subrational quality of pornographic communications. As Ronald Dworkin, a critic of feminist anti-porn activist Catherine MacKinnon, points out, in her book, Only Words, Professor MacKinnon appears to embrace a somewhat mechanistic psychology of coercive arousal:

She says that much pornography is not just speech – it is no “only words” – because it produces erections in men and provides them with masturbatory fantasies. (She warns her readers never to “underestimate the power of an erection”). Her view of the psychology of emotional arousal is mechanical – she thinks men who read pornography “are sexually habituated to a kick, a process that is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” In any case she thinks that pornography’s physiological power deprives it of First Amendment protection: “An orgasm is not an argument,” she says “and cannot be argued with. Compared with a thought it raises far less difficult free speech issues, if it raises any at all.”[6]

 

            As another critic of MacKinnon comments, MacKinnon believes “that because pornography is ‘noncognitive’ expression, it can be regulated on a lesser showing of justification than would be required for regulating speech at the First Amendment’s ‘core’.”[7]

            Themes of visceral communication and coercive hyper-arousal are also featured in an interesting, posthumously published article of a former civil liberties lawyer which directly compares pornography and cult indoctrination as unworthy recipients of First Amendment protection:

What occurs as the mind absorbs photographs of women being tied up with spiked leather masks and torso straight jackets, with knives stuck up their bodies and representations of ecstasy on their faces? What have the anxious acts of a person, young or old, who has not had enough protein or sleep, who has been deprived of contact with family, privacy, ideas or influences other than the cult’s, deprived of the opportunity for reality-testing and under enormous peer pressure, what has all this to do with the exercise of religion (if we give the term the reasonable meaning it had when the First Amendment was adopted or even the common-sense meaning it had today)? . . . We make a knee-jerk application of classical First Amendment principles to an event which is different in basic quality from those which stimulated the basic concept and the subsequent case law.[8]

 

            MacKinnon, Stender, Delgado and others are clearly stating that there is some inherent quality of pornographic or cultic communications, or the way in which their effects are produced (e.g., subcognitive emotional arousal), which distinguish such communicative and expressive practices from those “free” practices which are legitimately protected under the First Amendment. Like cultist mind control, pornographic stimulation is said to enhance suggestibility and thus to more or less compel certain behaviors.

PORNOGRAPHY AND HATE SPEECH

            The arguments mustered in support of the argument that pornography does not represent truly free speech include the proposition that pornographic communications are really inimical to free speech because they in effect “silence” women. Pornography allegedly does this by depicting women as degraded and sexually masochistic such that women are inhibited from speaking out on behalf of their dignity and autonomy or else they cannot, where demeaning objectification of women is pervasive, obtain a hearing.[9] A similar argument is also made with respect to the posited ineligibility of racist and sexist “hate speech” for the protection of the First Amendment. This argument extrapolates the more conventional premise that some raucous speech is insupportable in some contexts because it silences or “drowns out” other speech. Aggressive heckling or shouting a speaker down at a public meeting constitutes relatively non-problematic examples. More civil libertarian resistance may be anticipated to the application of the “drowning out” argument to speech which negatively stereotypes other speakers and therefore “silences” them. “Speech” notes Michaelman, “can degrade the fair valued of other peoples’ speech by summoning up perceptions of them (quite apart from their messages) as human types unworthy to be heard or credited – that is by exploiting cultures of oppression to induce prejudgment.”[10] Charles Fried, a critic of “the new first amendment jurisprudence” represented by MacKinnon, Michaelman, et. al., paraphrases this view: “some speech must be shut down in the name of free speech.”[11]

            In this view hate speech and pornography diminish their victims’ sense of self-worth and thus disempower them and undercut their participation in public discourse. Such wounding and disempowering speech may thus be legitimately throttled to empower other potential speakers to enhance the diversity of speech. Arguments of this nature generally place some emphasis on the emotive quality of highly objectionable (putatively unprotected) hate speech. Indeed it is sometimes argued that it is the visceral nature of extreme hate speech (e.g., epithets) which reduces the victim to silence or inarticulate helplessness.

Assaultative racial speech functions as a preemptive strike. The racial invective is experienced as a blow, not a proffered idea, and once the blow is struck, it is unlikely that dialogue will follow. Racial insults are undeserving of first amendment protection because the perpetrator’s intention is not to discover truth or initiate dialogue but to injure the victim.[12]

 

            Reference is obviously being made here to the “Fighting Words” doctrine.[13] “When racial insults are hurled at minorities, the response may be silence or a flight than a fight.” Women and minorities often report they find themselves speechless. “The pre-emptive effect of further speech is just as complete as with fighting words.”[14] The visceral emotional response of victims of “assaultive speech” thus precludes counter-speech. Attack “produces and instinctive, defensive reaction,” thus, “When one is personally attacked with words that denote one’s subhuman status and untouchability, there is little (if anything) that can be said to redress either the emotional or reputational injury.”[15]

            We note here that this is a rather deterministic argument. Assaultive hate speech is said to have a predictable, indeed one might say coercive impact such that victims are in effect rendered “speechless.” Fighting words are said to produce a compulsive arousal effect on the humiliated recipient such that if violence ensues, the responsibility is assigned to the assaultive speaker. Fighting words can thus be censored or negatively sanctioned to maintain peace and order.

            The arguments about the compulsive consequences of “assaultive speech” have clear parallels with the arguments affirming the coercive effects of rituals and persuasive speech said to represent cultic mind control, as well as with the formulations about violent pornography “silencing” women and mechanically (i.e., coercively) arousing men. In all three discourses subcognitive emotional arousal is said to undercut personal autonomy such that the (largely) verbal behaviors which produce arousal cannot be treated as truly free speech or religious exercise. Psycho-emotional compulsion is viewed as negating First Amendment protection.

            A second significant aspect of these exclusionary discourses entails the social science dimension. This is particularly conspicuous with respect to “anti-cult” arguments which rely on clinical analyses and on invocations of research and expertise on “brainwashing,” “coercive persuasion,” “thought reform,” etc.[16] The social science angle is somewhat less conspicuous in the two free speech discourses; nevertheless, the arguments regarding the subcognitive coercive-compulsive effects of pornography and hate speech are at least quasi-scientific. They posit a deterministic psychodynamic of such a compulsive or coercive quality that personal autonomy, rationality and free will are not operative. Social science thus becomes the arbiter of civil liberties and constitutional protections which are properly applicable only to contexts of free speech and religious practice and not to psycho-domination and compulsive arousal. Social science adjudicates autonomy, which is deemed essential to freedom.

            Two additional issues must be noted at this point. The exclusionary First Amendment discourse regarding “cults” is exclusively libertarian. Both sides claim to be vindicating true “freedom of religion” which, in the view of those who want to exclude cultic indoctrinational practices from the scope of the First Amendment, requires prior “freedom of mind” or the capacity (allegedly nullified by cultic indoctrination) to exercise autonomy and “free exercise.” In contrast, the exclusionary discourses involving pornography and racist assaultive speech possess both “libertarian” and “egalitarian” variants. The former version argues the inapplicability of the First Amendment’s protection of free speech to putatively “unfree” communications. The egalitarian argument, however, potentially concedes the applicability of the constitution’s protection of free speech but maintains that libertarian considerations must be balanced by considerations of equal protection of the laws and equal opportunity. In her recent book on pornography MacKinnon[17] evokes a conflict between the constitutional values of liberty and equality, “the law of equality and the law of the freedom of speech are on a collision course in this country.”[18] It is now necessary, according to MacKinnon for the law to compensate for its recent one-sided emphasis on liberty.

            The necessity of balancing liberty and quality is also maintained by defenders of the censorship of hate speech who urge that understanding the damage produced by assaultive speech “requires a reconsideration of the balance that must be struck between our concern for racial equality and freedom of expression.”[19] For Ronald Dworkin, however, this “balancing” logic represents an ominous appeal “to the frightening principle that considerations of equality require that some people not be free to express their tastes or convictions or preferences anywhere.”

            Before we conclude by contextualizing some of these issues in terms of shifting cultural standards, one additional point must be made. Dworkin suggests that some arguments mobilized on behalf of the censorship of pornography or assaultive speech implicitly appeal to a conception of freedom of speech as a positive liberty.[20] In a famous essay Isaiah Berlin defined “positive liberty” as the power to control one’s destiny and attain one’s goals or to participate in collective decision-making and societal control. It is contrasted with “negative liberty” which denotes simply the absence of restraint or obstruction (generally by the state) on one’s action.[21] Negative liberty is generally seen as a freedom from state action while positive liberty is often viewed as being established through state action. Positive liberty is often seen as being threatened by an impediment or incapacity such as ignorance, poverty or inequality, which the state may be called upon to remove.

            Robbins has argued that the supporters of legalizing deprogramming through conservatorships and guardianships granted to parents of adult cultists are implicitly positive libertarians who believe that, “the courts must make possible the exercise of religious liberty by removing the incapacitating effects of mind control.”[22] Somewhat similarly, Catherine MacKinnon sees pornography as promoting a kind of mind control whereby male sexual supremacy is institutionalized through the eroticization of male dominance and female submission.[23] Pornography constructs images of male and female for an aroused male audience whose mental degradation of women, reinforced by pornography, shapes the roles, options and outcomes available to women in the society. “Pornography, on this view, denies the positive liberty of women; it denies them the right to be their own masters by recreating them, for politics and society, in the shapes of male fantasy.”[24] Criticizing this argument, Dworkin maintains that American First Amendment values are fundamentally grounded in the ideal of negative liberty. “Freedom speech, conceived and protected as a fundamental negative liberty, is the core of the choice modern democracies have made, a choice we must now honor in finding our own ways to combat the shaming inequalities women still suffer.”[25]

            As noted above, conceptions of positive liberty are potentially friendly to the dynamic action of the state aimed at removing impediments such as poverty, illiteracy, racism, class domination (and possibly even mind control) which incapacitate individuals to exercise positive freedom. Thus Owen Fiss explicitly argues that the state becomes “the friend rather than the enemy” of freedom when it acts to suppress pornography, hate-speech and unlimited political campaign contributions (the latter allegedly “drowns out” the voices of the poor) thereby empowering women, minorities and poor persons to speak. The state properly “silences the voices of some in order to hear the voices of others.”[26] In contrast, from the standpoint of negative liberty, forceful state action to enhance positive liberty by censoring the obnoxious, prejudicial speech must be viewed as anti-libertarian.

            Finally, it is important to note that there is an arguable affinity between conceptions of positive liberty and social science. It is social science which informs positive libertarians of the impediments which are blocking the fulfillment of positive freedom (of religion, speech, etc.) and of what needs to be done to remove them, e.g., how sociocultural conditions might be transformed to enhance the capabilities or opportunities so vital to positive liberty.

CONCLUSION

            In his recent book Antichrist Bernard McGinn notes that many persons today cannot conceive of a totally evil (or totally good) person. “In or own century, when psychological and sociological accounts of human motivation have done so much to explain why people do good acts while others seem driven to commit evil, we are loath to think that any human being could be completely good or evil.”[27]

            “Good” and “Evil” seem no longer clearly identifiable in a deepening climate of moral ambiguity. Responsibility for individual problems, failures and disasters is becoming harder to pin down, and issues involving conflicting claims about responsibility often become highly contentious and politicized, e.g., debates over “date rape.”[28]

            In some ways this moral ambiguity reflects shifting norms and cultural standards as yesterday’s consensually stigmatized behaviors such as abortion and homosexuality become both acceptable as well as objects of fierce moral debate. Such debate also surrounds new candidates for stigmatization such as “homophobia,” “sexism,” “political correctness” or smoking. Moral boundaries may be becoming less distinct.

            The expansion of social science has played a role here. Social science and in particular psychology-psychiatry has been fertile in developing deterministic explanations for actions and outcomes which might otherwise – and more traditionally – be seen to reflect personal failings, weaknesses and moral turpitude. What is entailed here is in part the mitigation of criminal and moral responsibility through deterministic conceptualizations which suggest that an alleged transgressor and moral defective might be more fairly viewed as a victim, i.e., the “Abuse Excuse.”

            This pattern is relevant not only to the adjudications of criminal responsibility but also to broader areas of social policy and psychiatric diagnosis. Psychiatric diagnostic patterns have emerged which have been labeled by skeptics “medicalizing character,” the “medicalization of everyday misery” and the medicalization of deviance. While removing the deviant stigma from homosexuality and other conditions, the official Diagnostics and Statistical Manual of Mental Disorders has identified various “personality disorders” and other conditions, some of which such as “oppositional defiance disorder,” arguably convert deviant behavior from a volitional transgression of norms into involuntary conditions of victimization sometimes requiring accommodation as well as neutralization of deviant stigma. One theater in which accommodation and even compensation are worked out is the Americans with Disabilities Act (ADA) which provides protections for the civil rights of individuals with disabilities in the areas of employment, public accommodation, transportation, telecommunications and public services. What were once thought of as faults or character flaws become “psychological disorders” requiring accommodation or compensations.

            In our view the pervasive moral ambiguity and indeterminacy of responsibility is profoundly unsettling. Moral boundaries seem to have dissolved. The convergent discourses on excluding cultic indoctrination, violent pornography and racist hate speech from the protection of the First Amendment reflect an attempt to construct new moral boundaries which, however, will accept the modern psychologizing of moral arguments. The new boundaries are grounded in the concept of coercion, which, however, is expanded to include psychological coercion. The latter is seen to be particularly evident in “visceral” communications which operate at an emotional level and bypass or undercut vital cognitive and judgmental processes. The idea of the presumptive personal autonomy of individual actors, which arguably has been a basic tenet of the legal system, is weakened by these discourses which view individual autonomy as a frail reed which cannot resist emotional bombardment, erotic stimulation and nasty, hateful provocation. While quite compatible with conceptions of positive liberty, these discourses are inimical to the idea of negative freedom and, moreover, have implications for an expansion of governmental regulation in the direction of the “therapeutic state.”[29]

            Social science will necessarily be vital to the construction of new moral boundaries, i.e., psychologists, psychiatrists and other “experts” will discern when individuals subjected to the “coercively” overpowering effects of cultic, indoctrination, pornographic arousal and racist vituperation have thereby lost their autonomy and have been deprived of the capacity of exercising self-control and positive freedom. It may be objected, however, that the “scientific” conceptual frameworks which are employed to decipher the nature and effects of (“cultic”) religion are themselves possessed of a “religious” or ideological quality such as to disqualify them as objective arbiters of social control particularly in matters of religion.

            Although this paper deals with the interrelationship of three exclusionary First Amendment discourses, the authors’ long-term interest has involved critical evaluation of conceptualizations (or transvaluation) of religious conversion as “brainwashing.”[30] This transvaluation is arguably reductive and is grounded in theoretical foundations whose objectivity – and perhaps even secularity – is open to question.

            Finally, we will note that in our view these discourses and the premises from which they ultimately deepen rather than resolve the present climate of moral ambiguity. The interminancy of moral responsibility is not diminished but is enhanced by psychologizing, as subtle psychological nuances are always debatable. Received civil libertarian distinctions such as the key distinction between speech and action are relativized to the ultimate detriment, in our view, of the protection of civil liberties, which may require that certain distinctions remain intact.