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40 U. Pitt. L. Rev. 567 (1978-1979)
Pornography and the Criminal Law

handle is hein.journals/upitt40 and id is 577 raw text is: PORNOGRAPHY AND THE CRIMINAL LAW Joel Feinberg* When the possession, use, or display of sexually explicit materials is prohibited by law, and violations are punished by fine or impris- onment, many thousands of persons are prevented from doing what they would otherwise freely choose to do. Such forceful interference in private affairs seems morally outrageous, unless, of course, it is supported by special justifying reasons. In the absence of appropri- ate reasons, the coercive use of governmental power, based ulti- mately on guns and clubs, is merely arbitrary and as such is always morally illegitimate. Criminal prohibitions, of course, are some- times backed by appropriate reasons, and when that is the case, they are not morally illicit uses of force but rather reasonable regula- tions of our social activities. What then are appropriate reasons for criminal prohibitions? Surely the need to prevent harm or injury to persons other than the one interfered with is one kind of legitimate reason. Some actions, however, while harmless in themselves, are great nuisances to those who are affected by them, and the law from time immemorial has provided remedies, some civil and some criminal, for actions in this category. So a second kind of legitimate reason for prohibiting con- duct is the need to protect others from certain sorts of offensive, irritating, or inconveniencing experiences. Extreme nuisances can actually reach the threshold of harm, as when noises from the house next door prevent a student from studying at all on the evening before an examination, or when an obstructed road causes a person to be late for an important appointment. But we are not very happy with nuisances even when they do not harm our interests, but only cause irritations to our senses, or inconvenient detours from our normal course. The offending conduct produces unpleasant or un- comfortable experiences-affronts to sense or sensibility, disgust, shock, shame, embarrassment, annoyance; boredom, anger, or hu- miliation-from which one cannot escape without unreasonable in- convenience or even harm. We demand protection from nuisances when we think of our- selves as trapped by them, and we think it unfair that we should pay the cost in inconvenience that is required to escape them. In * A.B., 1949, M.A., 1951, Ph.D., 1957, University of Michigan. Professor of Philosophy, The University of Arizona.

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