Freedom, Rights and Pornography: A Collection of Papers by Fred R. Berger

241 Pages·1991·11.286 MB·English

by  Bruce Russell (auth.), Bruce Russell (eds.)

FREEDOM, RIGHTS AND PORNOGRAPHY
PHILOSOPHICAL STUDIES SERIES
Founded by Wilfrid S. SeI/ars and Keith Lehrer
Editor:
KEITH LEHRER, University 01 Arizona
Managing Editor:
LOIS DA Y, University 01 Arizona
Board olConsulting Editors:
JONATHAN BENNETT, Syracuse University
ALLAN GffiBARD, University 01 Michigan
ROBERT STALNAKER, Massachusetts Institute olTechnology
ROBERT G. TURNBULL, Ohio State University
VOLUME50
FREEDOM, RIGHTS
AND PORNOGRAPHY
A Collection of Papers by Fred R. Berger
Editedby
BRUCE RUSSELL
Wayne State University, Detroit, U.S.A.
SPRINGER SCIENCE+BUSINESS MEDIA, B.V.
Library of Congress Cataloging-in-Publication Data
Berger, Fred R., 1937-
Freedom, rights, and pornography : a collectlon of pa pers / by
Fred R. Berger ; edited by Bruce Russell.
p. cm. -- (Philosophlcal studles serles ; v. 50)
Includes blbllographlcal references and Index.
ISBN 978-94-010-5472-0
1. Freedom of speech--Unlted States. 2. Censorshlp--Unlted
States. 3. Pornography--Unlted States. 1. Russell, Bruce.
II. Tltle. III. Ser les.
KF4770.A75B47 1990
342.73'0853--dc20
[347.302853] 90-19151
ISBN 978-94-010-5472-0 ISBN 978-94-011-3334-0 (eBook)
DOI 10.1007/978-94-011-3334-0
Printed on acid-free paper
AII Rights Reserved
© 1991 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1991
Softcover reprint ofthe hardcover Ist edition
No part of the material protected by this copyright notice may be reproduced or
utiIized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
TO THE MEMORY OF FRED BERGER--
IN FRIENDSHIP AND OUT OF GRATITUDE
TABLE OF CONTENTS
ACKNOWLEDGEMENT ~
INTRODUCTION xv
CHAPTER 1: MILL AND THE RIGHT OF FREE 1
EXPRESSION
1. Mill's Concept Of A Right 2
11. The Basic Elements Of Mill's Moral Theory 4
Mill's Concept of Happiness 4
Mill On Moral Rules 4
The Rules of Justice 5
Further Deve10pment of Mill's Theory 6
III. The Right Of Free Expression 7
CHAPTER 2: THE RIGHT OF FREE EXPRESSION 14
1. Features Of A Basic Constitutional Right 14
11. Philosophical Justifications For Freedom of Expression 16
III. The Right Of Free Expression--A New Perspective 18
IV. Censorship and Regulation--Crucial Tools of Analysis 23
V. Conclusion 26
CHAPTER 3: SYMBOLIC CONDUCT AND FREEDOM OF 30
SPEECH
1. The Nature Of Symbolic Conduct 31
II. The Argument For Protection 34
III. Objections And Replies 35
IV. Legal Doctrines Needed 39
CHAPTER 4: JUDICIAL REVIEW, CONSTITUTIONALLY 45
PROTECTED RIGHTS, AND DEMOCRACY
1. Principles Used In Deciding Constitutional 46
Questions
II. The Role Of The Constitution In Protecting 51
Basic Rights
vili TABLE OF CONTENTS
CHAPTER 5: SOME ASPECfS OF LEGAL REASONING 66
CONCERNING CONSTITUTIONALLY PROTECTED
RIGHTS
Introduction 66
I. Constitutionally Protected Rights And Values 67
Esssential To A Democracy
II. The Courts Protection Of Fundamental Rights 69
CHAPTER 6: 'LAWAND ORDER' AND CIVIL 73
DISOBEDIENCE
1 Law, Regularity And Security 74
II. Disorder 84
III. Replies To Objections 86
CHAPTER 7: PATERNALISM AND AUTONOMY 94
1 Mill's Concept of Happiness 95
II. Mill's Conception of Justice and Rights 97
III. Further Development of Mill's Theory 98
IV. Paternalism and Autonomy 101
CHAPTER 8: SEX ROLE CHANGE AND AUTONOMY 109
CHAPTER 9: RACIAL AND SEX-ROLE STEREOTYPING IN 114
THE MEDIA: AN ANALYSIS
CHAPTER 10: THE DIFFERENCES IN THE CASES FOR 123
AND AGAINST PREFERENTIAL TREATMENT
BASED ON SEX AND THOSE BASED ON RACE
CHAPTER 11: PORNOGRAPHY, SEX, AND CENSORSHIP 132
1 Objections To Pornography: Conflicting 133
Views On Sex
II. The Response To Conservative Objections 141
CHAPTER 12: PORNOGRAPHY, FEMINISM, AND 156
CENSORSillP
1 The Feminist Objections To Pornography 156
11 Response To The Arguments 160
III. Conclusions 175
TABLE OF CONTENTS
IX
CHAPTER 13: GRATITUDE 181
1. The Duty To Show Gratitude 181
II. What Does Gratitude Express 184
III. The Significance Of Gratitude For 189
Moral Philosophy
CHAPTER 14: LOVE, FRIENDSHIP, AND UTILITY: 196
ON PRACTICAL REASON AND REDUCTIONISM
1. Love and Friendship 197
II. Utilitarianism 200
III. Practical Reasoning and Reductivist 205
Explanation
BIBLIOGRAPHY OF FRED BERGER'S WORK 213
INDEX OF NAMES 217
INDEX OF SUBJECTS 219
ACKNOWLEDGEMENT
It has taken me too long to edit this collection of Fred Berger's
published and unpublished papers. I want to thank several people for
their patience. First, the Berger family, especially Audrey, Fred's widow,
who has been more understanding than I deserve. And the people at
Kluwer Academic Publishers and Philosophical Studies, especially Keith
Lehrer, the editor of the series, and Peter de Liefde, editor of the
Humanities and Social Sciences Division at Kluwer.
I am grateful to Richard Wasserstrom for carrying most of the
load in the beginning and for his advice and encouragement along the
way.
Lois Day took on the arduous task of getting all of the essays
from typed copy to computer disk, and I thank her for it.
But most of all I am grateful to Fred Berger who picked me up
when I was down, dusted me off and patted me on the back--and also
directed my dissertation. I spent many hours in Fred's office discussing
philosophy with him during my last few years as a graduate student at U.
C. Davis and learned a great deal from him. Out of gratitude I dedicate
this collection to the memory of Fred Berger, a person who taught me,
by example, that clarity and breadth and depth of thought fit together
well.
xii ACKNOWLEDGEMENT
Grateful acknowledgement is made for permission to reprint articles and
material from the following sources:
''The Right of Free Expression," International Journal of Applied
Philosophy,3 (Fall 1986), pp.1-lO. Herman A. Heise, Publisher.
Reprinted by permission of the editor.
"Symbolic Conduct and Freedom of Speech," from Freedom 0/ Expression
c 1980 by Wadsworth, Inc., pp. 148-59. Reprinted by permission
of the publisher. All rights reserved.
"Some Aspects of Legal Reasoning Concerning Constitutionally Protected
Rights," Logique et Analyse, 53-54 (1971), pp. 7-13 (where it fIrst
appeared). Reprinted by permission of the editor.
'''Lawand Order' and Civil Disobedience," Inquiry 13 (1970, pp. 254-73.
Reprinted by permission of Universitetforlaget.
"Paternalism and Autonomy," in The Restraint 0/ Liberty, ed. Thomas
Attig, Bowling Green Studies in AI?I?lied PhilosoI?hy, vol. 7
(Bowling Green, Ohio: Bowling Green State University, 1985)
"Sex Role Change and Autonomy," in Changing Values In Non
Metropolitan Califomia, ed. James O. Haehn, Discussion Paper
Series 83-7, School of Behavioral and Social Sciences, California
State University, Chico, 1983, pp. 30-33. Reprinted by permission
of the editor.
"The Differences in the Cases for and Against Preferential Treatment
Based on Sex and Those Based on Race, "Proeeedings 0/ the
Publie Policy Con/erenees on Equa/ity 0/ 0 P P 0 r tun i t Y ,
(Sacramento, January 1980), pp. 160-74. Published by the
Department of Philosophy, University of California at Davis.
Reprinted by permission of that department.
"Pornography, Sex and Censorship," c Social Theory and Praetiee, Volume
4, Number 2, (Spring 1977), pp. 183-209.