I. INTRODUCTION
This paper examines the scope of John Rawls's theory of liberty, under which each person has “an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all.”Footnote 1 The “basic liberties” are the freedoms required to allow citizens to exercise what Rawls calls their two “moral powers”: the capacity for a sense of justice and the capacity for a conception of the good.Footnote 2 In identifying which basic liberties are required for the exercise of these powers, however, Rawls provides only an outline that proceeds for the most part at a high level of abstraction, referring to general and uncontroversial freedoms such as freedom of conscience and the “political liberties” of popular participation in government.Footnote 3 It is not obvious how an appeal to the moral powers resolves the kinds of specific disputes about freedom that come before the courts: Does a ban on nude dancing, for instance, interfere with the exercise of the moral powers so as to violate a basic liberty?Footnote 4
In this paper I attempt to develop a more precise account of what kind of connection to the moral powers is required in order for there to be a basic liberty in a specific case. In doing so, I draw on Rawls's general philosophical commitments and on the snippets of guidance that can be picked up from his brief discussions of specific examples. Thus, although the account I develop of the basic liberties goes beyond Rawls's own outline of the basic liberties, it aims to be fully consistent with Rawls's political philosophy. Throughout the paper, I use the term “Rawlsian” to describe my elaboration of Rawls's test for the basic liberties; when I refer to an idea or claim as “Rawls's” it is something he himself said.
Before proceeding, it is crucial to understand the overall structure of Rawls's theory of justice and how it constrains the task of filling in Rawls's outline of the basic liberties. Rawls's theory of justice is built on two principles. The first of these is the principle of equal basic liberties set out above. The second is the famous difference principle, under which social and economic inequalities are justified only to the extent that they are to the benefit of the least well-off.Footnote 5 Under what Rawls calls the “priority of liberty,” the first principle is prior to the second. This means that the basic liberties take precedence over the difference principle and, indeed, over all other political goals; they can only be limited in order to ensure an overall scheme of protection for liberty.Footnote 6 But although Rawls prioritizes the principle of equal basic liberties over the difference principle, the two ideas stem from the same ideal of “respect for citizens as free and equal,”Footnote 7 and the difference principle is a fundamental commitment in his theory of justice as fairness.
The priority of liberty thus imposes an important constraint on any account of how the abstract basic liberties apply in specific cases; such an account must, in order to preserve the difference principle, avoid generating laissez-faire economic liberties or a general liberty right. If, for example, we interpreted the right to liberty of the person to include a right for individuals “to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts,”Footnote 8 or to retain all the proceeds of their labor, it would be impossible to take steps to implement the difference principle by limiting working hours or imposing progressive taxation.Footnote 9
In noting this constraint, I do not mean to suggest that economic freedoms ought to be regarded as basic liberties, as John Tomasi proposes in his theory of “market democracy.”Footnote 10 Tomasi argues that many people “become who they are, and express who they hope to be, by the personal choices they make about working, saving, and spending.”Footnote 11 As I explain below, this is not enough to make economic freedoms into basic liberties.Footnote 12 Tomasi is right, however, that material choices and circumstances are important to people; this is precisely why recognizing a basic liberty in every case in which people may feel they are making a significant decision will jeopardize Rawls's commitment to distributive justice. As Frank Michelman puts it, the only way to balance Rawls's two demands of heightened scrutiny of the basic liberties and “the relentless pursuit of background justice” is “to refuse to treat the full range of freedom of action as basic.”Footnote 13
In this paper I argue that it is possible to develop a Rawlsian account of the basic liberties that avoids economic or general liberty rights that would threaten distributive justice, but that the scope of the basic liberties on this account is surprisingly narrow. In particular, the basic liberties will not include either a general right to sexual autonomy or a right to access to pornography. A fully developed Rawlsian account of the basic liberties thus appears to exclude personal freedoms for which there has been broad support among liberal commentators since the 1960s.Footnote 14
Section I of the paper sets out Rawls's outline of the basic liberties in detail, with particular attention to the idea of the two moral powers. In Section II, I first examine the limitations of other attempts to apply Rawls's outline of liberty to the kinds of specific issues that arise in constitutional law. I then develop my own (Rawlsian) account of the basic liberties. Section III discusses what kind of protection a Rawlsian scheme provides for conduct that does not involve the basic liberties, in order to make clear what is at stake in determining whether particular conduct is protected as a basic liberty. Section IV argues that neither sexual autonomy nor access to pornography will be protected as a basic liberty under the Rawlsian account of the basic liberties that I have developed.
II. RAWLS'S OUTLINE OF LIBERTY: THE ROLE OF THE MORAL POWERS
The starting point for Rawls's outline of liberty is the famous device of the original position, in which principles of justice are chosen from behind a veil of ignorance regarding such morally irrelevant factors as race, gender, and religious belief.Footnote 15 Rawls first used the original position in A Theory of Justice to generate the principle of equal basic liberties and the difference principle, which together make up the two principles of justice as fairness. This paper, however, focuses on the revised account of the basic liberties offered in Political Liberalism, specifically in “The Basic Liberties and Their Priority.”Footnote 16
Political Liberalism is perhaps most famous for Rawls's development of another idea—that of public reason. It is therefore useful, before focusing on the basic liberties themselves, to briefly examine how Rawls's discussion of the basic liberties in Political Liberalism relates to the idea of public reason and to explain why there is only limited discussion of public reason in this paper.
The idea of public reason is a response to Rawls's recognition of the possibility of reasonable disagreement both about the good and about justice. In response to reasonable disagreement about the good, public reason requires that citizens and public officials limit their arguments on constitutional essentials and matters of basic justice to what they sincerely believe reflects a reasonable political conception of justice that does not draw on any comprehensive religious or philosophical doctrine.Footnote 17 In response to reasonable disagreement about justice, public reason sets out three minimum requirements that a political philosophy must meet in order to be legitimate: the specification of certain rights, liberties, and opportunities; special priority for these freedoms; and measures assuring all citizens adequate all-purpose means to make intelligent and effective use of their liberties and opportunities.Footnote 18 As long as these requirements are met, public reason often allows more than one reasonable answer to any particular question.Footnote 19 Rawls thus recognized that there could be legitimate alternatives to justice as fairness.Footnote 20
Even as he recognized that justice as fairness was not the only reasonable account of justice, however, Rawls continued to advocate for it as his own preferred conception of justice. In the ideal of public reason, we must each have a criterion for what principles we think other citizens “may reasonably be expected to endorse along with us.”Footnote 21 Rawls's own criterion for these principles is justice as fairness: “the values expressed by the principles and guidelines that would be agreed to in the original position.”Footnote 22 Far from abandoning justice as fairness, therefore, in Political Liberalism Rawls in fact sought to further develop and clarify it.
Rawls's revised account of the basic liberties in “The Basic Liberties and Their Priority” is part of this development and clarification of justice as fairness: Rawls makes this relationship clear by noting in setting out this account that, despite his revisions, “the structure and content of justice as fairness is still much the same.”Footnote 23 Because this paper focuses on Rawls's revised account of the basic liberties, it is thus an exploration of the requirements of justice as fairness. There is therefore no need for a separate inquiry in the paper into the requirements of public reason. Like any political conception of justice, justice as fairness must meet the requirements of public reason. In fact, justice as fairness exceeds these requirements: the difference principle is a more demanding standard of distributive justice than merely requiring that citizens have the means “to make intelligent and effective use of their liberties and opportunities,” and the principle of the priority of liberty is stricter than the vaguer requirement of “special priority” for rights and freedoms. A separate inquiry into the requirements of public reason would therefore be redundant.Footnote 24
With the relationship between public reason and the basic liberties clarified, we can now look in greater detail at Rawls's revised account of the basic liberties in Political Liberalism, in which he introduced the idea of the moral powers. Rawls developed this account in response to H.L.A. Hart's criticism that there were two “gaps” in the account of the basic liberties set out in A Theory of Justice.Footnote 25
The first of these gaps was that it was unclear why the parties in the original position would choose the basic liberties and agree to the priority of liberty.Footnote 26 In Political Liberalism Rawls explained that the parties in the original position choose among the alternative principles of justice according to how well the principles will secure the “social background conditions and general all-purpose means normally needed for developing and exercising the two moral powers and for effectively pursuing conceptions of the good with widely different contents.”Footnote 27 Rawls argued that these considerations will lead the parties to choose a list of abstract basic liberties that includes liberty of conscience, the political liberties, and the rule of law.Footnote 28
The second gap that Hart identified in the account of the basic liberties in A Theory of Justice concerns the focus of this paper: that it was unclear how the abstract liberties generated in the original position are to apply in particular cases. In Political Liberalism, Rawls also proposed to fill this second gap—which he referred to as the task of “specifying” the basic libertiesFootnote 29—by reference to the moral powers. The basic liberties should be specified and adjusted in particular cases “so as to allow the adequate development and the full and informed exercise of both moral powers” and to “guarantee equally for all citizens the social conditions essential” for the exercise of these powers.Footnote 30
The moral powers thus play a role both in devising an initial list of basic liberties and in determining what an abstract basic liberty requires in a particular case; they do not drop out of the picture once the list of abstract basic liberties has been compiled. It is also important to note here that Rawls's goal is not to maximize the extent to which people exercise the moral powers: he expressly says that “the scheme of basic liberties is not drawn up so as to maximize anything, and, in particular, not the development and exercise of the moral powers.”Footnote 31 The exercise of the moral powers is not an end in itself. But giving people the freedom to exercise the moral powers, should they choose to do so, is the fundamental animating impulse behind the basic liberties.
This is not to say that the moral powers are the only relevant consideration in the task of specifying the basic liberties. This task takes place not in the original position itself, but later, at the “constitutional, legislative and judicial stages, when general knowledge of social institutions and of society's circumstances is made known.”Footnote 32 These factors specific to a particular society are most likely to be relevant to questions of institutional design,Footnote 33 but they may also be relevant to specifying some basic liberties. A history of racial subjugation, for instance, will likely be relevant to determining what it means to fully respect people as individuals capable of exercising the moral powers.Footnote 34 It is, however, possible to expand significantly on Rawls's outline of liberties by reference to the moral powers alone, and this paper aims to provide as detailed a framework as possible for doing so.
Now that the role of the moral powers in specifying the basic liberties is clear, we can turn to examining the moral powers themselves. The first of these powers—the capacity for a sense of justice—is straightforward: Rawls defines it as “the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of social cooperation.”Footnote 35 He explains further that the “fundamental case” of the exercise of the capacity for a sense of justice is “the application of the principles of justice to the basic structure of society and its social policies.”Footnote 36
The second moral power—the capacity for a conception of the good—requires closer analysis. Rawls says that a conception of the good consists of a “scheme of final ends” that “we want to realize for their own sake, as well as attachments to other persons and loyalties to various groups and associations.”Footnote 37 Furthermore, “we also connect with such a conception a view of our relation to the world—religious, philosophical, and moral—by reference to which the value and significance of our ends and attachments are understood.”Footnote 38 The “fundamental case” of the exercise of the capacity for a conception of the good is “the application of the principles of deliberative reason in guiding our conduct over a complete life.”Footnote 39
An individual does not, however, have to feel morally obliged to act in a certain way in order to be acting on a conception of the good. Hart criticized Rawls's conception of liberty as excessively narrow on the ground that it included only actions done out of a sense of moral obligation and therefore appeared not to cover drug use and sexual freedom.Footnote 40 But a conception of the good includes not only people's beliefs about what they are morally required to do, but also what they conceive of as ethically valuable.Footnote 41 For example, even people who do not regard themselves as under a strict obligation to reproduce nonetheless generally consider having and raising children to be part of the good life—as being worthwhile rather than merely pleasant—and having a family thus involves the exercise of the moral powers.Footnote 42
But even though a conception of the good is broader than a sense of moral obligation, there is nonetheless a special deliberative quality to a conception of the good; it fundamentally involves liberty of conscience, which has what Michelman calls “motivic or title-role status in the Rawlsian play of liberties.”Footnote 43 A commitment does not amount to a conception of the good simply because people care a lot about it or commit significant time to it; neither the urge to accumulate wealth nor a passion for a time-consuming activity like golf involves a conception of the good. As Rawls puts it, “[d]esires and wants, however intense, are not by themselves reasons in matters of constitutional essentials and basic justice.”Footnote 44 Moreover, we cannot err on the side of treating strongly felt desires as conceptions of the good, since this could threaten the overall scheme of Rawls's theory of justice. This point is particularly important given that people must be free not only to form a conception of the good, but also to act on it,Footnote 45 and it will often be especially difficult to determine whether a particular action reflects a conception of the good or is simply a case of desire. In particular, if people's strong desires to be rich meant that their money-making efforts were a protected exercise of the moral powers, it would be impossible to implement the difference principle.
III. A RAWLSIAN ACCOUNT OF LIBERTY
Although Rawls devotes considerable space to describing the moral powers, his terse proposal that we determine whether a basic liberty arises in a particular case by asking what “social conditions” are “essential for the adequate development and the full and informed exercise” of the moral powers requires significant development. Examining other attempts to develop Rawls's high-level guidance into a readily applicable test reveals, however, that it is difficult to come up with such a test without generating a general liberty right.
David Richards suggests that the purpose of a Rawlsian account of freedom of expression is to protect “the broad range of communications of fact and value bearing on our moral powers.”Footnote 46 He argues (contra Rawls himselfFootnote 47) that advertising should be protected as a basic liberty because it provides consumers with “facts, interpretations of facts, and evaluative conceptions relevant to the exercise of the moral powers of rationality and reasonableness.”Footnote 48 By providing information about “cheaper and better goods and services,” Richards claims, advertising “may enable one to define and pursue personal as well as ethical aims.”Footnote 49
As his own example of advertising illustrates, however, Richards's requirement of mere relevance to the moral powers will generate a basic liberty in almost any circumstances. The provision of information about cheaper consumer goods may facilitate the exercise of the moral powers by freeing up resources to spend on ethical pursuits, but so, for example, does jaywalking rather than going to an inconvenient pedestrian crossing, thereby saving time that can be spent exercising the moral powers.
James Fleming develops a more sophisticated test for how to specify the basic liberties within a Rawlsian framework, based on the twin concepts of “deliberative democracy” (which corresponds to the exercise of the capacity for a sense of justice) and “deliberative autonomy” (which corresponds to the exercise of the capacity for a conception of the good).Footnote 50 Specific basic liberties are identified according to their “significance for securing a scheme” of either deliberative democracy or deliberative autonomy.Footnote 51
On its own, the criterion of “significance” for securing deliberative democracy or autonomy would generate as broad an account of liberty as Richards's criterion of “relevance.” Fleming seeks to avoid this outcome by arguing that deliberative autonomy will only protect “significant” basic liberties, not a right “to be different” by, for instance, loafing or wearing one's hair as one pleases.Footnote 52 Fleming proposes that protected “significant” liberties be identified by asking “[w]hat liberties in principle are significant for everyone, regardless of their particular conceptions of the good and irrespective of whether particular persons happen to value those liberties.”Footnote 53
Fleming's proposed test does avoid creating a general right to freedom of action, but it is nonetheless unsatisfactory. The significant-for-all test will generate classic abstract statements of liberty such as freedom of speech, which is valuable to everyone regardless of which views they wish to express. But the test does not help us identify more specific liberties. Particular controversial cases are not significant for everyone: the freedom to advocate the overthrow of government by violent means, for instance, only matters to political radicals.Footnote 54 In the end, Fleming's proposal does not get us much beyond Rawls's own test for how to identify the basic liberties.
I propose that a good starting point for finding a more precise method for specifying the basic liberties is Rawls's own test for the “significance” of a basic liberty.Footnote 55 How significant a liberty is depends on whether it is “more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers.”Footnote 56 Rawls seems to principally envisage using this test to determine which liberties prevail when there is a clash of freedoms.Footnote 57 But he also briefly uses the idea of significance in a second sense—as a basis for distinguishing between protected basic liberties and potential freedoms that might initially seem to fall within the terms of the abstract statement of a basic liberty but are not ultimately protected as such. Rawls gives the examples of libel and defamation of private persons, which might at first seem to come within the basic liberty of freedom of expression, but in fact “are not specially protected” as basic liberties, since they have “no significance at all for the public use of reason to judge and regulate the basic structure.”Footnote 58
Rawls's test for the significance of a basic liberty has two elements, which can serve to distinguish between two kinds of basic liberties. First, a liberty may be “more or less essentially involved” in the exercise of the moral powers. In certain cases, a basic liberty will directly involve the freedom to exercise the moral powers, so that a restriction in these cases will specifically prevent someone from exercising the moral powers. I refer to these cases as “direct” basic liberties. Second, a liberty may be a “more or less necessary institutional means to protect” the exercise of the moral powers. While restrictions in these cases might not directly prevent anyone from exercising the moral powers, they will make it difficult, and perhaps ultimately impossible, to exercise these powers. Rawls himself briefly refers to the idea of “supporting” basic liberties, such as “integrity of the person” and the rule of law, which he says are necessary if the political liberties and freedom of conscience and association are to be “properly guaranteed.”Footnote 59 Adopting Rawls's term, I will develop the idea of supporting basic liberties into a more complete account.
A. Direct Basic Liberties
A direct basic liberty is “more or less essentially involved” in the exercise of the moral powers. But what kind of involvement does this require? I propose the following test: only those activities that themselves intrinsically involve the moral powers should per se be regarded as basic liberties. There are two elements to this proposed test. First, in order for an activity X to merit protection as a basic liberty, X itself must involve the moral powers. The possibility that X might be criticized from a perspective that reflects a conception of the good is not sufficient to elevate it to the status of an activity that involves the moral powers. Thus, the fact that Jewish dietary laws prohibit the consumption of pork does not mean that eating bacon thereby becomes a protected basic liberty. This is so even in the case, for instance, of a formerly observant Jewish person who eats bacon as part of a deliberate repudiation of his old beliefs.Footnote 60 Given the variety of moral perspectives, if an implicit judgment to reject a moral position could be grounds for a basic liberty, this would result in a general liberty right.
The second element of my proposed test for a direct basic liberty is that for an activity X to be protected as a basic liberty, X must involve the moral powers intrinsically. This means that to fail to exercise the moral powers while engaging in X would, while possible, be to miss the point of X. Let us take the example of someone attending a religious service to illustrate how this test works in an uncontroversial case. Attending a religious service intrinsically involves acting on the moral power to form a conception of the good. Someone might attend a religious service for other reasons altogether—maybe to form business connections or to conform to her family's expectations—but we can readily identify this person as somehow missing the point of the service. Similarly, the decision to get married intrinsically involves acting on a conception of the good about family life. People might marry for purely practical reasons—for financial security, for example—but to marry for money, even if sensible in certain circumstances, is to miss the point of marriage.
It is important to note that we can determine that an activity intrinsically involves the moral powers even if we think that the particular activity reflects fundamentally mistaken views of either justice or the good. Thus, it is possible to judge that someone attending a meeting to promote political views that one finds reprehensible would be missing the point of that meeting if she were there only to enjoy the free sandwiches provided. In the case of marriage, even a person who rejects marriage as limiting and bourgeois could recognize that someone who marries solely for money has missed the point of the institution.
In other cases, by contrast, while someone doing X with particular motivation might be using the moral powers, it would not miss the point of X to engage in that activity without exercising the moral powers. In these cases, X does not intrinsically involve the moral powers, and X itself is not protected as a basic liberty. Take the case in which X is the act of drinking wine. Someone who drinks wine as part of a communion rite is either exercising the moral powers or else missing the point of taking communion, but this is because of the context of the religious ceremony, not because drinking wine intrinsically involves the moral powers. By contrast, someone drinking a glass of wine with dinner (whether a casual drinker or a devoted oenophile) is not exercising the moral powers and not missing the point of drinking wine in failing to do so. Thus, the fact that drinking wine might form part of a conception of the good in the context of taking communion does not mean that there is a general basic liberty to drink wine.
It is useful here to compare my proposed test for direct basic liberties to Michelman's suggestion that refusing to buy health insurance is not a protected liberty because such refusal is “not normally an exercise of conscience.”Footnote 61 Michelman's approach differs from my proposed test in two respects. First, my test makes explicit the requirement that for X to be a basic liberty X itself must involve the moral powers; it is not enough for X to reflect an implicit rejection of a conception of the good. Second, the requirement that an activity must involve the moral powers intrinsically to be generally protected as a basic liberty provides a stricter and more principled limitation on the scope of the basic liberties than focusing on whether an activity “normally” involves the moral powers. Michelman does not say precisely what he means by “normally” in this context, but I will take him to mean that activity X normally involves the moral powers when it would not be unusual for someone doing X in a particular society to be exercising the moral powers.Footnote 62
Asking whether an activity normally involves the moral powers in this sense does limit the potentially unbounded spread of the basic liberties by ensuring that obscure cases in which someone ascribes eccentric moral or religious significance to an ordinarily prosaic activity do not result in that activity generally being protected as a basic liberty. But Michelman's approach will still result in overbroad protection for the basic liberties, because it will protect conduct generally if it is reasonably common for people engaging in that conduct to exercise the moral powers in doing so. In a society with large number of teetotal Catholics who only consumed alcohol in the form of communion wine, for instance, it could be said it was not unusual for someone drinking wine to be exercising the moral powers in doing so. On Michelman's test of whether an activity normally involves the moral powers, drinking wine generally, outside the context of communion, would be protected as a basic liberty in this society, but this does not seem warranted. Similarly, using Michelman's own example, if a significant number of Americans in fact had moral objections to buying health insurance—thus making it “normal” for someone refusing to buy insurance to be exercising the moral powers—on his approach this would create a general basic liberty for everyone to refuse to buy health insurance. Again, this protection seems overbroad. Focusing on whether a course of conduct intrinsically involves the moral powers rather than whether it normally involves those powers avoids this overprotection.
Focusing on the intrinsic exercise of the moral powers does raise the question of whether any liberty is violated when a prohibition on an activity that does not itself intrinsically involve the moral powers has the effect of preventing some people from exercising the moral powers, in the way that a general ban on alcohol would make various forms of Christian worship impossible. Rawls does not discuss cases in which facially neutral prohibitions prevent the exercise of the moral powers, and developing a full Rawlsian account of how to strike a workable and fair balance between the public interest and claims for exemptions would raise a number of complex issues that are beyond the scope of this paper.Footnote 63 But Rawls's discussion of the “worth” of liberty—the idea that the difference principle fulfills “one of the central aims” of justice by “maximiz[ing] the primary goods available to the least advantaged to make use of the equal basic liberties enjoyed by everyone”Footnote 64—suggests that he does place some value on citizens being in a position to exercise the moral powers if they choose to do so.Footnote 65
B. Supporting Basic Liberties
I now turn to the supporting basic liberties, which do not involve direct exercise of the moral powers but are nonetheless necessary to make exercise of the moral powers possible. I distinguish between two kinds of supporting basic liberty: specific and general.
1. Specific Supporting Liberties
Specific supporting liberties arise when an activity X is necessary for the exercise of an identifiable direct basic liberty Y—so that exercise of liberty Y either will be impossible, or will be significantly less meaningful, if there are restrictions on X. For example, it is not possible to meaningfully exercise the capacity for a sense of justice by judging the performance of public officials without freely available information about the workings of government, even though obtaining or spreading such information does not directly engage the moral powers. Access to such information is therefore a basic liberty that justifies placing a heavy burden on attempts to establish defamation of public officials, as Rawls himself proposes.Footnote 66
This does not mean, however, that any activity that happens to result in someone exercising the moral powers thereby becomes a supporting basic liberty. Someone who is almost knocked down while crossing the road without having waited for a pedestrian light might be moved to reflect on the meaning of life by this near-death experience, but this does not mean that jaywalking is a basic liberty. In order for X to be a specific supporting liberty, it must be the case that anyone who wishes to meaningfully exercise the moral powers in a specific case might need to engage in activity X (even if they will not necessarily do so).
2. General Supporting Liberties
Sometimes it will be possible to identify a particular exercise of the moral powers that will be meaningless, or significantly less meaningful, without a specific supporting liberty. Supporting liberties might also be required for the exercise of the moral powers in a more general way, however. General supporting liberties to X arise when X is necessary to any meaningful exercise of the moral powers, not just to the exercise of some identifiable direct basic liberty.
Rawls himself argues along these lines that freedom from slavery is a basic liberty because it is essential to people being able to exercise the moral powers at all.Footnote 67 He also suggests that supporting basic liberties include the rights and liberties covered by the rule of lawFootnote 68 and a limited right to private property.Footnote 69 Although this is one of the few instances in which Rawls develops his outline of how to specify the basic liberties in any detail, it is nonetheless worth building further on his discussion. I would suggest that it is useful to categorize the general supporting liberties according to two conditions that are necessary for people to be able to exercise moral powers in any way: a minimum level of self-respect and a minimum degree of control over the circumstances of their own lives.
i. Supporting liberties of respect
For Rawls, self-respect “provides a secure sense of our own value, a firm conviction that our determinate conception of the good is worth carrying out.”Footnote 70 Failing to respect individuals as ends in themselves undermines their ability to exercise the moral powers. Slavery, which completely denies the status of the individual of someone with her own life to lead, is an extreme example of this.Footnote 71 It is not, of course, literally impossible for enslaved people to exercise the moral powers.Footnote 72 But the fact that people may manage to find meaning in the midst of extreme adversity does not mean that they should be expected to do so.
It is important to note the limits of the supporting liberties of respect, however. These liberties are violated only when a law's implication is that the people it targets do not have legitimate claims to exercise the moral powers. This standard will certainly prohibit severe incursions on people's dignity, such as any laws predicated on theories of racial or ethnic inferiority; the segregation laws of the Jim Crow era are a prime example of a violation of the supporting liberties of respect. But this standard does not prevent the state from ever second-guessing its citizens’ choices. A legal requirement to wear a seatbelt, for example, reflects some doubt about people's capacity for making rational judgments, but it does not undermine people's sense of self-respect in a way that makes it more difficult for them to exercise the moral powers or that is inconsistent with recognizing their status as individuals possessed of the moral powers.
ii. Supporting liberties of control
In order to exercise the moral powers, people need not only adequate self-respect, but also the practical means to determine the course of their own lives. This requirement gives rise to what I call the supporting liberties of control. Rawls himself proposes supporting liberties of this kind, although he does not categorize them as I do. He suggests, for example, that the right to exclusive use of personal property is a basic liberty that “allow[s] a sufficient material basis for a sense of personal independence and self-respect, both of which are essential for the development and exercise of the moral powers.”Footnote 73 Supporting liberties of control would also limit state surveillance of private communications.
In addition to these specific protections, the supporting liberties of control require a broad measure of freedom of action, even in cases in which the moral powers are not directly at stake. If, to take a farfetched example, the state prohibited all actions except those that involved or were essential to the exercise of the moral powers, people's decision-making would be limited to a degree that would ultimately hinder their exercise of the moral powers. This does not mean, however, that there is a right to complete freedom of action that is violated by any limitation of people's control over their lives. As long as on balance there is freedom of action in a society—what might be called a “preponderance of liberty”—particular activities that do not involve the moral powers can be regulated. There are thus many activities that individually are not protected as supporting basic liberties, even though they enjoy a kind of cumulative protection in the sense that they could not all be proscribed without undermining the conditions necessary for exercising the moral powers. In the United States, I would suggest, this standard of the preponderance of liberty is clearly met.
III. THE LIMITS OF RAWLS'S PROTECTION FOR LIBERTY
In Section IV I examine whether the Rawlsian account of liberty I have set out above extends to sexual autonomy or pornography. Before turning to this task, however, I want to clarify what is at stake in whether or not certain conduct is a basic liberty by examining in greater detail the level of protection accorded to the basic liberties and what kind of regulation Rawls allows when no such liberties are involved.
Under the priority of liberty, the basic liberties can only be limited for the sake of other basic liberties. This is not quite as narrow a constraint as it might initially appear, since basic liberties include “positive” liberties that enable people to exercise the moral powers.Footnote 74 Thus, for example, even if pornography does involve a basic liberty, it can be regulated in order to prevent violence or to promote equality for women.
In spite of these limits on protection for negative liberties, however, if pornography is a basic liberty it will still receive significant protection. Although Rawls does not provide a detailed account of how to ensure a scheme of basic liberties, it is clear that he does want to limit the extent to which positive rights can override negative liberties. He acknowledges that it is possible for there to be a clash of liberties but maintains that the central ranges of the basic liberties are mutually compatible.Footnote 75 He also says that the principles of justice “do not apply directly to the internal life of churches,” which suggests limits to the extent to which positive liberties override negative ones.Footnote 76 In other words, not just any contribution to protecting a positive liberty can justify limiting a negative liberty. If pornography is a basic liberty, therefore, restricting it to promote gender equality will involve a complex balancing exercise and will require convincing evidence of a causal relationship between pornography and violence or the subordination of women.
When there is no basic liberty or matter of social or economic justice at issue, by contrast, Rawls requires only “sufficient reason” for legal and other restrictions on conduct.Footnote 77 If neither sexual autonomy nor pornography is a basic liberty, therefore, they can be regulated in the name of goals like gender equality even if the relationship between the regulation in question and the goal is insufficiently close to give rise to a positive liberty. Laws promoting privacy and gender equality by criminalizing “revenge porn” will be much easier to justify in a Rawlsian scheme, for example, if pornography is not a protected form of freedom of speech.Footnote 78 Moreover, if sexual autonomy and pornography are not basic liberties, they can be regulated to promote goals that would not amount to positive liberties in any circumstances, such as preventing the deterioration of a neighborhood.Footnote 79
Historically, of course, sex and pornography have been regulated not for neutral reasons such as promoting gender equality or preventing crime, but in order to promote traditional morality. The basic liberties cannot be limited in the name of a conception of the good, but does Rawls allow perfectionism in cases where the basic liberties are not at stake?
Rawls sets out different approaches to perfectionism in A Theory of Justice and Political Liberalism. He says in A Theory of Justice that parties in the original position will reject the doctrine of perfectionism, so that forms of sexual conduct may not be prohibited simply on the ground that they are “degrading and shameful.”Footnote 80 Similarly, he says that universities or the arts may not be subsidized on the grounds that they are intrinsically valuable.Footnote 81 In explaining the concept of public reason in Political Liberalism, however, he says that, while it might be desirable for people to avoid relying on conceptions of the good in any public deliberations, public reason, with its requirement of neutrality, is strictly required only when the “constitutional essentials” and matters of economic and social justice are at stake.Footnote 82 He also says in Political Liberalism that laws establishing national parks and funding the arts can be justified on perfectionist grounds consistently with public reason.Footnote 83 Moreover, it seems that the shift in Rawls's thinking on perfectionism not only applies in the context of public reason but also extends to the revised version of justice as fairness set out in Political Liberalism. In contrast to his explicit rejection of perfectionism in all contexts in A Theory of Justice, in setting out the revised version of justice as fairness in Political Liberalism Rawls describes the basic liberties as having “an absolute weight” with respect to “reasons of public good and of perfectionist values,” with no suggestion that other political decisions are similarly protected from perfectionist reasoning.Footnote 84 Although in other respects the requirements of justice as fairness are more demanding than those of public reason,Footnote 85 it thus seems that the two theories converge on the question of perfectionism. I therefore draw here on Rawls's discussion of perfectionism in his treatment of public reason.
The next question, therefore, is how far public reason goes in permitting perfectionism. When Rawls says that perfectionist reasoning is compatible with public reason as long as no basic liberty or matter of social justice is at stake, does he mean that it is legitimate to try to force people to conform to a conception of the good for their own sake? If this is the case, then the stakes in determining whether sexual autonomy and pornography are basic liberties are all the higher, since they can otherwise be restricted even in the name of traditional personal morality.
An alternative interpretation, however, may be that even in Political Liberalism Rawls does not mean to adopt an unfettered perfectionism outside of the basic liberties and matters of social justice. On this alternative view, laws enacted solely to force people to retain or adopt a particular conception of the good—whether religious or secular—are unacceptable in a Rawlsian scheme because they seek to manipulate people's exercise of the moral powers. Thus, while the state may restrict people's conduct in order to foster a certain kind of public culture, such as an environment suitable for raising children according to certain values, it may not concern itself with the state of people's souls. Although it is legitimate for the state to fund the arts, on this view, it would be a violation of liberty to force adults to attend art exhibitions purely for their own edification. Similarly, under this limited version of perfectionism sexual conduct may not be prohibited merely on the grounds that it is degrading or shameful. This limited perfectionism might, for example, protect some activities when they take place truly in private.Footnote 86 It does, however, still leave considerable room for regulating people's conduct on perfectionist grounds: even some noted conservative defenders of morals legislation—who disagree significantly with Rawls on what conduct should be protected as a fundamental freedom—are willing to concede that the state should not “direct people to virtue and deter them from vice” by criminalizing “even secret and truly consensual adult acts of vice.”Footnote 87
Determining which of these two accounts of perfectionism better reflects Rawls's views is too complex a task to undertake here. In the rest of this paper, I therefore assume that the second, more limited view, which prevents the state from concerning itself with the state of people's souls, applies in a Rawlsian scheme. Proceeding on this basis reveals that, even taking the narrowest view of how much perfectionism Rawls allows, there can still be significant perfectionist restrictions on conduct that does not involve a basic liberty.
IV. THE SCOPE OF A RAWLSIAN ACCOUNT OF LIBERTY: SEXUAL AUTONOMY AND PORNOGRAPHY
With the stakes made clear, I now turn to applying the Rawlsian account of the basic liberties set out above to the issues of sexual autonomy, by which I mean the freedom to engage in the sexual conduct of one's choice, and pornography, by which I mean the freedom to create, distribute, and possess sexually explicit material that has no artistic, literary, or scientific worth. I argue that, on this account, neither sexual autonomy nor a right to pornography is a Rawlsian basic liberty, contrary to what many interpreters of Rawls have argued or assumed.Footnote 88 It is only fair to note in this regard that it is perhaps unsurprising that there should be misunderstanding of the scope of the protection offered by the basic liberties. In A Theory of Justice, Rawls described the priority of liberty as meaning that “liberty can be restricted only for the sake of liberty itself,”Footnote 89 which might be read to suggest a general right to freedom of action that extends to sexual freedom and access to pornography. It was not until Political Liberalism that Rawls clarified that he did not intend to defend any priority for “liberty as such.”Footnote 90 Nonetheless, I will argue that this broad view of the scope of basic liberties—however understandable—is mistaken.
A. Sexual Autonomy
If sexual autonomy is protected as a basic liberty it will be as an element of freedom of association. But not everything I want to do in association with others is protected as a basic liberty. As Frank Michelman puts it, the “constitutional-legal cogency” of appeals to freedom of association “depends . . . on how we understand the point of picking out this particular freedom as a specially protected, basic liberty.”Footnote 91 For Rawls, this point turns on the required connection to the moral powers.
1. Sexual Autonomy as a Direct Basic Liberty
To recall, in order for an activity X to be regarded as a basic liberty, X must itself intrinsically involve the moral powers. It may at first glance seem strange to ask whether sex involves the moral powers, since sexual morality has been a preoccupation of many moral and religious systems. The mere fact that action X might be criticized from some perspective that involves the moral powers does not mean, however, that X itself involves a conception of the good.Footnote 92 The question of whether sex involves the moral powers must be answered in its own right, not by reference to religious injunctions on contraception, homosexuality, or sex outside of marriage.
As a matter of human psychology and biology, of course, sex plays an essential role in intimate relationships that do involve the moral powers. Serious intimate relationships of all kinds require judgments about values such as loyalty and fidelity and about the kinds of qualities that we admire in other people and aspire to ourselves. These judgments are not merely negative, as in the case of someone rejecting certain ideas of sexual morality (either implicitly or explicitly) in conducting her personal life; taking positive views about these values and qualities, and acting on these views, is of the essence of being in a relationship.Footnote 93 Protecting these ethically loaded relationships requires treating their essential elements, including sex, as basic liberties.
This does not mean, however, that sex is protected as a direct basic liberty outside the context of relationships. While choices concerning a family's living arrangements may be protected liberties,Footnote 94 this does not mean that there is a basic liberty to use the property one occupies however one chooses—for example to set up a shop or a restaurant in a residential area. Similarly, sex is often simply a matter of desire or preference, with no deeper connection to any moral vision or conception of what is worthwhile in life.
James Fleming argues that casual or recreational sex merits protection as a basic liberty in a Rawlsian scheme in the same way that casual or uninformed voting does.Footnote 95 But this analogy is not convincing. While it is possible that casual sex could play a role in some conception of the good, this does not mean that sex intrinsically involves an exercise of the moral powers. Someone who has casual sex does not miss the point of sex (unless one takes a particular view of sexual morality, such as the view that the point of sex is procreation). By contrast, the act of voting intrinsically involves an exercise of the capacity for a sense of justice. Whatever one's political views, it is possible to see that voting thoughtlessly, or for some apolitical purpose, misses the point of voting. This sort of “casual” voting is protected as a basic liberty only because it would be wrong for the state to question the bona fides of its citizens by requiring proof of their political convictions. But it is possible to differentiate between sex in the context of relationships and sex in other contexts, just as it is possible to distinguish between drinking communion wine and drinking wine with dinner, without impugning the sincerity of anyone's values.
2. Sexual Autonomy as a Supporting Basic Liberty
If sexual autonomy is not a direct basic liberty, can it be either a specific supporting liberty that is necessary for the meaningful exercise of an identifiable basic liberty or a general supporting liberty that is required for the exercise of the moral powers in any context?
i. Specific supporting liberty
I argued in the previous section that sex is so integral a part of intimate relationships that involve the moral powers that sex in the context of such relationships involves a direct basic liberty. Alternatively, one might argue that sex in the context of relationships is a specific supporting liberty without which these kinds of relationships would not be possible. There is nothing significant at stake in which of these classifications is correct; direct and supporting basic liberties receive the same level of protection. But it is a separate question whether the role that sex plays in intimate relationships means that sexual autonomy in general—whether or not in the context of relationships—is a specific supporting liberty.
It is certainly the case that protecting people's right to intimate association will sometimes require treating sex that itself may not involve the moral powers as a basic liberty. For instance, a law that permitted people to have sex only in the context of relationships involving the moral powers would undermine the right to engage in intimate relationships; having the state determine at what point a relationship was sufficiently serious to involve the moral powers would not only be grossly intrusive, but often impossible, and a more workable test, such as a prohibition on sex outside of marriage, would violate the basic liberties of those who did not want state or religious sanction for their relationships.
This is not to say, however, that a general right to sexual autonomy is a specific supporting liberty. Once sexual conduct can be defined sufficiently precisely to be prohibited without impinging on relationships that do involve the moral powers and regulated without the state having to inquire into the details of potentially protected conduct, it need not be permitted in order for people to be free to form intimate relationships. The sale of sex toys, for instance, could be restricted without the kind of intrusion that would prevent people from exercising the moral powers.
ii. General supporting liberty
The only remaining grounds for a broad right to sexual autonomy in a Rawlsian scheme are as a general supporting liberty of respect or control. Each of these kinds of liberty will certainly limit regulation of sexual conduct. For instance, supporting liberties of respect, which require that the state not undermine people's dignity to a degree that makes it difficult for them to regard themselves as persons with their own ethical conceptions of how to live and what to value, will rule out punishments designed to humiliate offenders. Supporting liberties of control, which require that people's lives not be subject to constant oversight, may limit the lengths to which the state can go in investigating people's private conduct. These limits leave considerable room for restrictions on sexual autonomy, however; complete freedom in sexual conduct is not necessary in order for people to have sufficient self-respect or sufficient control over their lives to exercise the moral powers in other contexts.
3. Sexual Autonomy and the Cases of Gay Rights and Female Genital Mutilation
A Rawlsian account of liberty thus turns out not to extend to the simple freedom to engage in the sexual behavior of one's choice. In a Rawlsian scheme, conduct that falls into this category—such as engaging in prostitution, frequenting sex clubs, or using online hookup sites—can be regulated for broad reasons of public policy, including perfectionist concerns about the tenor of public culture.
It is important, however, to be precise about the limitations of Rawlsian protections for sexual conduct. Andrew Koppelman, who also argues that there is no Rawlsian right to sexual autonomy, further suggests that this means that there is no Rawlsian basis either for regarding sodomy prohibitions as an infringement of basic liberties or for defending bans on female genital mutilation (FGM) against the charge that these bans infringe on the exercise of conscience, since neither sodomy bans nor the practice of FGM prevent people from exercising the moral powers.Footnote 96
In relation to sodomy bans, Koppelman rightly notes that Rawls's only discussion of gay rights, in The Idea of Public Reason Revisited, simply assumes without argument that gay marriage is one of the basic rights, liberties, and opportunities that any political conception of justice (including justice as fairness) must recognize.Footnote 97 Koppelman is also correct that control of sexual intimacy per se “is simply something that most people happen to value highly, and such regard is not enough to qualify something as a primary good.”Footnote 98
Koppelman is nonetheless wrong to argue that a Rawlsian account of liberty cannot protect gay rights. As I argued above, sexual intimacy plays an indispensable role in relationships that do involve the moral powers, so that protecting these relationships does require extending some protection to sexual intimacy.Footnote 99 While this does not generate a general right to sexual freedom, it does mean that a blanket prohibition on gay sex would undermine the rights of gay people to exercise the moral powers in ethically significant intimate relationships.
Whether Koppelman is correct that there is no Rawlsian basis for opposing FGM is a more complex question. Koppelman argues that, assuming that FGM can be performed in such a way as to avoid the risk of infection or long-term health problems, there is no Rawlsian basis for a right not to be subjected to FGM because “the capacity for pleasure has no place” in the moral powers.Footnote 100 As with his arguments about sodomy bans, Koppelman is correct that the capacity for pleasure itself is not an exercise of the moral powers. He also rightly notes that the principle of bodily integrity does not seem to adequately explain why FGM is wrong unless one also takes into account the impact of FGM on sexual pleasure.Footnote 101 Invasions of bodily integrity that generally burden people's lives will undermine their ability to exercise the moral powers, as violations of the general supporting liberties of control. But this principle does not seem to cover the case of FGM that is carried out subject to medical limitations.
In response to Koppelman, Michelman suggests that a Rawlsian scheme can provide a basis for opposing FGM under a principle of respect for bodily integrity “with an overall view to maximizing everyone's lifetime prospects for full and adequate development and exercise of the moral powers.”Footnote 102 Before assessing whether this response succeeds, however, we need to qualify Michelman's proposed principle in two respects.
First, maximizing people's “prospects” for exercising the moral powers could be understood to mean maximizing the likelihood that they will exercise the moral powers. But this comes too close to the idea, which Rawls rejects, that we should seek to maximize people's exercise of the moral powers. We do not, for instance, ordinarily require parents to raise their children so as to maximize the chances that they will exercise the moral powers later in life. Parents are free to raise their children to value the pursuit of material things above any spiritual, intellectual, or ethical reflection, even if this reduces the chances that the children will later exercise the moral powers through such reflection. Instead we should ask whether parents have effectively closed off certain choices involving the moral powers to their children, such as by depriving them of the education they would need to live outside the religious community in which they were raised. Second, because it is not limited to cases involving the intrinsic exercise of the moral powers, Michelman's formulation would protect X generally as a basic liberty if there is any possible context in which X might play a role in the exercise of the moral powers, which would result in a general liberty right.Footnote 103 A refined version of Michelman's principle would thus focus on preserving people's choices to exercise the moral powers in cases in which the moral powers are intrinsically at stake (which, to recall, means that to engage in an activity without exercising the moral powers is to miss its point).
How does this refined version of the principle apply to the case of FGM? For many women, FGM either makes sex painful or significantly diminishes their capacity to experience sexual pleasure; the more anatomically extensive the FGM, the greater the impact on sexual function.Footnote 104 These women are deprived of the value of intimacy in their marriages or other relationships that intrinsically involve the moral powers. On this basis, it seems that a Rawlsian account of the basic liberties can justify a ban on at least the most extensive forms of FGM in order to preserve the basic liberty for women to exercise the moral powers by forming fulfilling intimate relationships.Footnote 105
But Koppelman is right that the most obvious objection to FGM—its impact on female sexual pleasure—is marginalized in this justification, dependent on the role it plays in ethically significant relationships. More significantly, it would seem that subjecting women or girls to less extensive forms of FGM does not violate a basic liberty as long as they will be able to form meaningful intimate relationships as adults, even if they experience less sexual pleasure. A maximally fulfilling sex life could feature in someone's conception of the good, but it does not involve the intrinsic exercise of the moral powers and could only be a basic liberty if a Rawlsian scheme sought to maximize people's opportunities to exercise the moral powers in any context. Rawlsian liberties extend to what people need to form meaningful intimate relationships but not beyond this: just as there is no Rawlsian liberty to buy sex toys or drugs that will enhance one's sex life, so we are faced with the troubling possibility that there is no Rawlsian basis for objecting to less severe forms of FGM. Even if we err on the side of assuming in uncertain cases that FGM will undermine intimate relationships, there may be limited forms of FGM that will be acceptable. In this respect, Koppelman provides an important insight into the limitations of a Rawlsian approach to the basic liberties.
B. Freedom of Speech: Pornography
I now turn to the question of whether access to pornography, in the sense of sexually explicit speech that has no (or very limited) artistic, literary, or scientific worth, is protected as a basic liberty in the Rawlsian framework I have set out. If, as I have argued above, there is no general Rawlsian right to sexual autonomy, pornography must be a basic liberty in its own right, not based on a right to sexual freedom.
Moreover, in order to establish a basic liberty to access to pornography, the mere fact that pornography is speech is not significant in a Rawlsian scheme. In contrast to U.S. constitutional jurisprudence, where the First Amendment often serves as what Frederick Schauer calls an “argumentative showstopper,”Footnote 106 Rawls makes clear that the criterion by which “the weight of particular claims to freedom of speech . . . are to be judged” is whether they are “more or less essentially involved in, or [are] a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers in one (or both) of the two fundamental cases.”Footnote 107 Subversive advocacy, for example, is protected at least in part on the grounds that to restrict political advocacy “is to restrict the free and informed public use of our reason in judging the justice of the basic structure and its social policies.”Footnote 108 By contrast, libel and defamation of private persons are not basic liberties, because they have “no significance at all for the public use of reason to judge and regulate the basic structure.”Footnote 109
1. Pornography as a Direct Basic Liberty
Is pornography a form of expression that, like political debate, inherently involves the moral powers, so that to engage in this kind of expression without exercising the moral powers is somehow to miss its point? Pornography is not devoid of ideas—it does present certain views about sex and pleasure, about what is arousing or attractive. But this is not sufficient to establish that it engages the moral powers. The capacity to form and act on a conception of the good is something more than the ability to process ideas; it involves the exercise of the principles of rational deliberation, which “enable us to think of ourselves as affirming our way of life in accordance with the full, deliberate, and reasoned exercise of our intellectual and moral powers.”Footnote 110 Koppelman describes pornography as a claim about “what goods are worth pursuing” and as presenting “a conception of the good achievable by sex.”Footnote 111 But this is incorrect, at least in the Rawlsian sense of “good” that involves the moral powers. Presenting something as arousing is not the same as suggesting it is ethically significant. Pornography saying, “This is hot,” is no more an appeal to the moral powers than an ad for cigarettes saying, “This is cool.” Whatever one's view of its moral acceptability, pornography seems to involve a simple preference, not a reflection of deep moral or ethical commitments.
Pornography is, of course, at odds with traditional sexual morality, and a number of commentators have suggested that this is a basis for regarding it as protected speech under a framework akin to a Rawlsian system based on the moral powers. Joshua Cohen argues that, from the perspective of the speaker, pornography may reflect an “expressive interest” that arises from “concerns about human welfare and the quality of human life.”Footnote 112 Cohen offers the example of artistic expression “that displays an antipathy to existing sexual conventions, to the limited sensibilities revealed in those conventions, and the harms they impose.”Footnote 113 Similarly, David Richards argues that pornography addresses “issues central to our dual moral powers of rationality and reasonableness”Footnote 114 because it offers joyful alternatives to what he characterizes as the Victorian view of sexual morality as “analogous to excremental ideas of regularity and moderation” and the Catholic “dismissal of sexuality as an unfortunate and spiritually superficial concomitant of propagation.”Footnote 115
As in the case of conduct, however, the fact that a moral argument can be made against a particular form of expression does not mean that engaging in this expression itself involves the moral powers.Footnote 116 Speech that directly engages questions of sexual morality (including by narrative or other nonargumentative means) will involve the exercise of the moral powers, even if it is sexually explicit.Footnote 117 Thus, work that specifically seeks to show that traditional sexual morality cramps human potential will be protected. But most pornography does not meet this description; the “display of antipathy” that Cohen refers to might simply be an implicit assumption about sexual morality. Similarly, simply because, as Richards notes, pornography presents an “alternative model” or “ideal” of sex to the moral stance of the Catholic Church does not mean that pornography directly engages with this stance. If sexually explicit material only challenges conventional sexual morality in the sense of flouting it, this is no more a direct exercise of the moral powers than behavior that implicitly rejects religious rules.
A further basis for thinking that pornography engages the moral powers is the possibility that exposure to pornography might change someone's ethical views about sex or relationships. Cohen argues that, from the perspective of the audience, pornography may reflect a “deliberative interest” in doing what is “genuinely worthwhile, not simply what one now believes to be worthwhile”Footnote 118 because pornography “enable[s] audiences to understand sexual possibilities, perhaps to reconceive their own sexual commitments.”Footnote 119
In support of this claim, Cohen notes that sexually explicit expression is diverse and does not just depict female humiliation.Footnote 120 But the grounds for not regarding pornography as a basic liberty in a Rawlsian scheme do not depend on this narrow characterization of its message. Whether pornography conveys other messages will of course be relevant if the reason for restricting pornography is that it depicts women in a humiliating fashion, but this is a separate question from whether or not it is a basic liberty. Cohen also notes that different people will understand and respond to pornography in different ways,Footnote 121 and that pornography is not necessarily intended to instruct consumers or to champion particular kinds of sex but rather can be an element in fantasies on which people might not ever want to act.Footnote 122 But if pornography is simply presenting the attractions of various kinds of sex, there is no exercise of the moral powers at stake, however long the list of variations might be. Similarly, where people respond to pornography in purely sexual terms—whether they regard pornography as a how-to manual, a source of pure fantasy, or something in between—there is no connection at all to the moral powers.
It is possible, of course, that pornography will sometimes set in train a series of profound reflections on moral or ethical issues, but this is by happenstance; pornography that does not itself address these issues does not become a basic liberty just because it happens to trigger reflection on them. Suppose, to take a different form of speech, that a young Muslim woman who wears a hijab sees an advertisement on the train for shampoo featuring a woman tossing her long, flowing locks. The young woman, looking at the ad, is suddenly struck by the thought that covering her hair stifles a harmless wish to be attractive and begins to reconsider her commitment to wearing a veil. This thought process, sparked by the shampoo ad, would unquestionably involve the moral powers, but the ad itself does not involve the moral powers. Cohen's suggestion that we should protect the “circumstances favorable to finding what is worthwhile”Footnote 123 is unworkably broad—these circumstances are too varied to all give rise to protected basic liberties. Someone judgmentally observing a fast-food customer order a supersize soda may be moved to reflect on whether gluttony is a sin. But this does not mean that limits on drink sizes are an interference with a basic liberty.
Similarly, the fact that pornography may have played a role in significant political change is also insufficient to make it into an exercise of the moral powers. Koppelman describes, for example, the role of pornography in gay rights: gay people who were “persuaded” by what gay pornography presented as arousing then sought to persuade other citizens that same-sex relationships are as worthy as any others, culminating in the recognition of gay marriage.Footnote 124 But in a Rawlsian framework, the mere fact that something changes people's minds and as a result leads to important political change does not give rise to a basic liberty. Suppose, for example, that for some gay men drugs played an important role in the process of coming out by loosening the inhibitions created by a homophobic culture. As in Koppelman's example involving pornography, these men may then have successfully made the case to others that gay people ought to be treated equally by the law. This does not mean that there is a basic liberty to take recreational drugs.
If pornography does not involve the intrinsic exercise of the moral powers, does this also mean that there is no protection for erotic literature and art in a Rawlsian account of the basic liberties? In order to answer this question, we have to first consider the place of art more generally in a Rawlsian scheme. It is easy to see how the moral powers are engaged by works of art that address political, ethical, or religious questions, even if they do so indirectly. What about works that do not address such questions, though, like landscape painting or most portraiture? Whether these works are protected under a Rawlsian account of liberty is not a meaningless question: while it is admittedly difficult to imagine any rational reason for banning paintings of country scenes, there might be reasons for banning disturbing or gory images, for example, that would meet the undemanding standard of rationality that applies if no basic liberty is at stake.
It is not obvious how artistic works that do not address ethical or political questions will be protected basic liberties in a Rawlsian scheme. The best case for this protection, however, seems to be that artistic claims on our attention provoke a kind of reflection about value that is sufficiently close to an exercise of the moral powers for art to come within the purview of the basic liberties.Footnote 125 Even if a work of art itself does not involve the moral powers, its appeal to our attention makes a claim about the good. It is plausible to think of aesthetic values, in contrast, say, to people's ideas of a mere good time, as akin to religious or ethical commitments; it makes sense to speak of aesthetic value, but not of recreational value. Using this idea of an appeal to aesthetic value, erotic art would be protected as a basic liberty, but ordinary pornography, which does not make this kind of claim of value, would not.
It's important to note that this difference between pornography and art does not correspond to the difference between reason and emotion. Koppelman argues that simply because pornography principally appeals to emotion does not mean that it does not have “cognitive content” that engages the viewer's reason.Footnote 126 While this is no doubt true in its own terms, in a Rawlsian scheme the distinction between reason and emotion does not matter. It does not matter, for instance, whether we think of an avid golfer as thinking golf is great or as merely loving golf: golf does not involve the moral powers in either case. Engaging the moral powers means reasoning about certain questions, not reason per se. Indeed, engaging the moral powers need not involve the exercise of reason at all, as long as the emotions experienced are rooted in a conception of value. As Koppelman notes, someone viewing a work of art may be swept away by emotion, so that there is no rational element in their response.Footnote 127 But this emotional response is connected to a conception of aesthetic value in the same way that a purely emotional experience of religious ecstasy is connected to underlying deliberation about religious truth and thus also engages the moral powers.
A further important point to note about the treatment of art in a Rawlsian account of the basic liberties is that what matters is whether artistic speech seeks to engage the moral powers—the focus is on artistic ambition rather than objective artistic merit. Certain artistic movements do, admittedly, pose more of a challenge than others to this focus on artistic ambition. Amy Adler argues that postmodernist art, which seeks “to ridicule the notion that we can distinguish between works of ‘serious value’ and bad art,” makes it impossible to determine whether art purports to have value.Footnote 128 But second-order claims about artistic value engage the moral powers by seeking to further our understanding of artistic value, just as moral skepticism counts as a form of reasoning about the good. It is of course possible that an artist's postmodernism is so thoroughgoing that they cannot or will not offer a coherent account even of how their work seeks to undermine traditional conceptions of artistic value, thus making direct inquiry into their intentions futile.Footnote 129 But in these cases the courts can rely on other evidence of the artist's intentions, such as evidence as to the artist's efforts to direct their work at a serious audience or testimony from art historians, critics, or curators about the objective merits of the work as a proxy for its ambition. Adler argues that no one of these tests can protect all works of art.Footnote 130 But there is no reason for courts to be limited to a single test; courts have taken multiple factors into account in other contexts in which a speaker's intention is relevant to whether speech is protected.Footnote 131 It thus seems possible to protect artistic speech without having to recognize pornography as a direct basic liberty.
2. Pornography as a Supporting Basic Liberty
Even speech that does not itself involve the moral powers might have some special role in facilitating the exercise of these powers as a supporting basic liberty. Could pornography be a basic liberty on this basis?
i. Pornography as a specific supporting liberty
Might a right to pornography be necessary to the meaningful exercise of a specific basic liberty, just as freedom of information about public officials is necessary to the basic liberties of freedom of political speech and the right to vote? There are two plausible candidates for such specific liberties in relation to pornography: the basic liberty to form intimate relationships and the basic liberty at stake in literary and artistic works.
Although he does not use the same terminology, David Richards suggests that a right to pornography might be a specific supporting liberty for forming intimate relationships. He argues that pornography may be “a just vehicle for the liberation of starved and shriveled capacities of sexual imagination and experience in the service of moral powers engaged in the construction of more fulfilling and humane personal relationships.”Footnote 132 But there is an important difference between speech that is indispensable to the exercise (or meaningful exercise) of the moral powers and speech that merely happens to influence someone's exercise of these powers. Many artists and writers have found creative inspiration in drugs,Footnote 133 but this does not mean that there is a specific supporting liberty to use drugs.
As regards the possibility that access to pornography is a specific supporting liberty for freedom of artistic expression, it will be clear from the discussion above that it may be difficult to distinguish between “mere” pornography and erotic art. Because of this difficulty, any restrictions on pornography would have to err on the side of protecting speech with artistic worth (or pretensions). Of course, even if restrictions on pornography are appropriately narrow and do not in fact apply to protected artistic expression, some people may be deterred from genuine artistic expression because they wrongly think they fall within the terms of the restrictions or fear that the law will be misapplied in their case. It is clear, however, that Rawls does not take the view that every case in which there is some vagueness as to whether a law might restrict the exercise of the moral powers gives rise to a basic liberty; he says that at least certain “fighting words” are not protected under freedom of expression, for example, even though they are not identifiable by a bright-line test and the prospect of being charged with the crime of inciting a breach of the peace might chill certain kinds of political expression.Footnote 134 Restrictions on pornography do not seem any more likely than this to chill artistic speech.
ii. Pornography as a general supporting liberty
Finally, we must ask whether access to pornography is necessary for people to have sufficient control over their own lives, or sufficient self-respect, to exercise the moral powers generally. As in the case of sexual autonomy, it does not appear that access to pornography is a general supporting liberty of control. There must be a preponderance of liberty in relation to speech, just as I have argued there must be in relation to conduct generally.Footnote 135 This does not mean, however, that every single kind of speech that might contribute to this preponderance of freedom merits the status of a basic liberty.
The question of whether access to pornography is a supporting liberty of respect requires closer examination. Many advocates of regulating pornography point to the risk that it will persuade people of a degrading view of womenFootnote 136 or of a damaging view of sex.Footnote 137 These critics of pornography may well be mistaken,Footnote 138 but what is important for purposes of our inquiry into whether pornography involves a supporting liberty of respect is that even these critics grant that pornography is persuasive speech. This concession raises the question of whether regulating pornography on the basis that it will influence people's attitudes is incompatible with the self-respect that is necessary for people to exercise the moral powers.
Tim Scanlon's view that “[t]he harm of having false beliefs is not one that the autonomous man could allow the state to protect him against through restrictions on expression”Footnote 139 might seem to suggest that this question should be answered in the affirmative. Scanlon's argument relies on a much broader view of autonomy than one based on the moral powers, however. Rawls's own discussion of advertising makes clear that he has no objection to laws that seek to prevent people from being persuaded by speech. He proposes that the state can limit “socially wasteful” advertising that seeks to persuade consumers of the relative merits of products that are distinguishable only by reference to “superficial and unimportant properties.”Footnote 140 But the wastefulness of the advertising lies precisely in the fact that it tries to persuade consumers to associate consumer goods with larger values or aspirations. Rawls thus seems to take the view that the capacity to exercise the moral powers is not so fragile that it will be damaged by any expression of doubt in people's ability to assess speech for themselves.
A Rawlsian approach to free speech thus rejects the common liberal view that the state must not judge individual choices about what materials to consume. As Andrew Koppelman puts this view, “If I have a right to control my own thoughts, then I have a right to entertain myself with worthless junk.”Footnote 141 A Rawlsian basic liberty to free speech, by contrast, is narrower than a right to control one's own thoughts, however trivial or junky they might be. Rawls requires strict neutrality between different conceptions of the good, but his focus on the moral powers means one does have to be using one's mind in a certain way in order to enjoy the protections of a basic liberty. There is thus no basis for regarding pornography as a general supporting liberty.
CONCLUSION
In this paper I have sought to develop Rawls's bare-bones outline of liberty into a more complete account that can be applied as precisely as possible to specific cases. I have argued that the range of liberties protected under this account is surprisingly narrow and that it does not extend either to sexual autonomy or to a right to create or have access to pornography. Moreover, this narrow scope is the result of a theory that grounds the basic liberties in the value of conscience, while also seeking both to accord strict priority to the basic liberties over all other political goals and to protect the difference principle. The limits of the Rawlsian basic liberties are thus integrally connected to the structure of justice as fairness; it is hard to see how to protect a broader range of liberties without significant changes to Rawls's fundamental commitments.
