From dks Sun Feb 26 20:26:23 1995

Pornography: Is it "Only Words"?

>> Chris writes:

10. What is the liberal position on art, pornography and censorship?

Liberals are opposed to government-enforced limits on free expression; this, the First Amendment of the US Constitution, is the issue on which they come closest to taking an absolutist line. This extends to the propagation of ideas; in our mass media age, an opinion or argument that is not conveyed to large numbers of people is effectively censored. Thus, not only should anti-pornography laws be removed, but the active promotion of alternative and controversial viewpoints should be encouraged and financially supported. This can give people a better idea of the arguments both for and against a given position.

Does pornography really express a "viewpoint"? One court observed recently that pornography is about "who wants what, where, when, how, how much, and how often," and that "even the most liberal construction would be strained to find an 'idea' in it." But even if we insist that pornography does, in fact, convey "ideas" and "viewpoints" and "arguments," is that really all it does? Does it not also cause real harm to real people? And if so, does the state -- does society -- not have a responsibility to ensure that its laws prevent or mitigate this harm as far as possible? It is all very well to cite the First Amendment, but there are one or two other things in the Constitution as well.

And even if we take the First Amendment in isolation, how should we interpret it? Thomas Jefferson, a well-known theoretician on the subject of human liberty, once wrote: "Were our state a pure democracy there would still be excluded from our deliberations women, who, to prevent deprivation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men." He was right: it is easier to have men decide everything than it is to bother with the "ambiguity of issues" that women might introduce. Don't believe me? Ask any man. And is this what "we" are still doing today? Are "we" still interpreting "pornography" (and the First Amendment) as if women's lives and the range of women's experience were somehow unreal or not to be taken seriously?

Obviously, much depends on what we mean by "pornography." Did Chaucer, or Sterne, or Nabokov, or Gauguin traffic in "pornography"? The man who wrote Lady Chatterley's Lover also wrote that "Pornography is the attempt to insult sex, to do dirt on it." Are we able to comprehend such distinctions? Is "pornography" that which can be identified by some precise and harmful effect it has upon society?

Instead of trying to offer a specific definition or response to these questions, I simply make reference here to the ideas of Catharine MacKinnon; in particular, to her arguments in Only Words. While some would argue that the data are sparse when it comes to "isolating" and "measuring" the "effects of pornography," I think MacKinnon's ideas are profound and deserve serious consideration.

NB: I'm not saying that I agree -- or disagree -- with Chris's statement of "the liberal position on art, pornography and censorship." What I am saying is that MacKinnon takes a different position on what should be done about pornography. In particular, Chris writes that "liberals" want to:

Help individuals take more control over their own lives. This requires (a) providing an environment that does not arbitrarily remove choice; (b) ensuring that isolated failures of judgment are not catastrophic, removing choice; (c) offering enough information so that choices can be understood and made intelligently; and (d) giving people responsibility and encouraging self-reliance within a social framework.

Chris continues:

It is important to distinguish different levels of choice; alternative kinds of toothpaste are not more important than (e.g.) career options.

Funny how that works, eh?

Annotated excerpts from Only Words

The book, originally a series of lectures, is written in three parts:

• Defamation and Discrimination
• Racial and Sexual Harassment
• Equality and Speech

MacKinnon begins by recounting the story of women's abuse at the hands of pornographers, and of their long silence, enforced by society's denial. She then imagines what it's like today for women to speak out against this abuse, only to discover the rhetorical, institutional, and cultural means by which society continues to dismiss their testimony...

Slowly, then suddenly, it dawns on you: maybe now I will be believed. You find a guarded way of bringing it up. Maybe the pictures are even evidence of rape. [Or so you might think. Instead, however, you] find that the pictures, far from making what happened undeniable, are sex, proof of your desire and your consent. [...] The pictures, surrounded by a special halo of false secrecy and false taboo -- false because they really are public and are not really against the rules -- have become the authority on what happened to you, the literature of your experience, a sign for sex, sex itself. In a very real way, they have made sex be what it is to the people who use you and the pictures of you interchangeably. In this, the pictures are not so different from the words and drawings that came before, but your [being used] for the camera gives the pictures a special credibility, a deep verisimilitude, an even stronger claim to truth, to being incontrovertibly about you, because they happened and there you are. And because you are needed for the pictures, the provider has yet another to use you over and over and over again.

Finally, somehow, you find other women. [...] The same acts that were forced on you are forced on them; the same smile you were forced to smile, they must smile. There is, you find, a whole industry in buying and selling captive smiling women to make such pictures, acting as if they like it.

When any one of them tries to tell what happened, she is told it did not happen, she imagined it, she wanted it. Her no meant yes. The pictures prove it. See, she smiles. Besides, why fixate on the pictures, the little artifact, at most a symptom? Even if something wrong was done to you, how metaphysically obtuse can you be? The pictures themselves do nothing. They are an expression of ideas, a discussion, a debate, a discourse. How repressed and repressive can you be? They are constitutionally protected speech.

Putting to one side what this progression from life to law does to one's sense of reality, personal security, and place in the community, not to mention faith in the legal system, consider what it does to one's relation to expression: to language, speech, the world of thought and communication. You learn that language does not belong to you, that you cannot use it to say what you know, that knowledge is not what you learn from your life, that information is not made out of your experience. You learn that thinking about what happened to you does not count as "thinking," but doing it apparently does. You learn that your reality subsists somewhere beneath the socially real -- totally exposed but invisible, screaming yet inaudible, thought about incessantly yet unthinkable, "expression" yet inexpressible, beyond words. You learn that speech is not what you say but what your abusers do to you.

Your relation to speech is like shouting at a movie. Somebody stop that man, you scream. The audience acts as though nothing has been said, keeps watching fixedly or turns slightly, embarrassed for you. The action on-screen continues as if nothing has been said. As the echo of your voice dies in your ears, you begin to doubt that you said anything. Soon your own experience is not real to you any more, like a movie you watch but cannot stop. This is women's version of life imitating art: your life as the pornographer's text. To survive, you learn shame and how to cover it with sexual bravado, inefficacy and how to make it seductive, secrecy and the habit of not telling what you know until you forget it. You learn how to leave your body and create someone else who takes over when you cannot stand it any more. You develop a self who is ingratiating and obsequious and imitative and aggressively passive and silent -- you learn, in a word, femininity.

I am asking you to imagine that women's reality is real -- something of a leap of faith in a society saturated with pornography, not to mention an academy saturated with deconstruction.(5) In the early 1980s women spoke of this reality, in Virginia Woolf's words of many years before, "against the male flood":(6) they spoke of being sexually abused. Thirty-eight percent of women are sexually molested as girls; twenty-four percent of us are raped in our marriages. Nearly half are victims of rape or attempted rape at least once in our lives, many more than once, especially women of color, many involving multiple attackers, mostly men we know. Eighty-five percent of women who work outside the home are sexually harassed at some point by employers.(7) [...]

A long time before the women's movement made this information available, in the absence of the words of sexually abused women, in the vacuum of this knowledge, in the silence of this speech, the question of pornography was framed and debated, its trenches dug, its moves choreographed, its voices rehearsed. Before the invention of the camera, which requires the direct use of real women; before the rise of a mammoth profitmaking industry of pictures and words acting as pimp; before women spoke out about sexual abuse and were heard, the question of the legal regulation of pornography was framed as a question of the freedom of expression of the pornographers and their consumers. [...]

Frozen in the classic form of prior debates over censorship of political and artistic speech, the pornography debate thus became one of governmental authority threatening to suppress genius and dissent. There was some basis in reality for this division of sides. Under the law of obscenity, governments did try to suppress art and literature because it was sexual in content. This was before the camera required live fodder and usually resulted in the books' becoming bestsellers.

Once abused women are heard and -- this is the real hitch -- become real, women's silence can no longer be the context in which pornography and speech are analyzed. Into the symbiotic dance between left and right, between the men who love to hate each other, enters the captive woman, the terms of access to whom they have been fighting over.(8) Instead of the forces of darkness seeking to suppress what the forces of light are struggling to free, her captivity itself is made central and put in issue for the first time. This changes everything, or should. Before, each woman who said she was abused looked incredible or exceptional; now, the abuse appears deadeningly commonplace. Before, what was done to her was sex; now, it is sexual abuse. Before, she was sex; now, she is a human being gendered female -- if anyone can figure out what that is.

What happens when you put the real language of sexual abuse in a Senate confirmation hearing? [...] It, and you, are treated as if you do not belong, as if you pulled down your pants and defecated in public. You are lowered by proving your injury. He is not. He allegedly said these things. If they were said, they were his words. She said them in quotation marks. But it is the woman to whom they are attributed when she speaks them. When she says them, it is believed they are true of her somehow, but not believed of him. Senator Grassley called it "an offensive story." Barbara Norville, a radio commentator, "left feeling dirty somehow." President Bush "felt unclean watching it."(55) The offensiveness, the dirt, the uncleanness stick to the woman [...]

Women know this. It explains their fear of speaking about sexual abuse in public, their sense of reviolation when doing so, their shame. It is because of how they are seen. It explains why an account like Anita Hill's developed, with a consistent perpetrator sexuality, from the telescoped expressions of unhappiness to her friends at the time to the minimal FBI sketch to the fuller details when pushed on cross-examination before the Senate committee. As she put it, she told it to her level of comfort. I felt she did not want his words in her mouth. Women do not want to be pornography. When words of sexual abuse are in our mouths, that is pornography, and we become pornography because that is what pornography is.

Once you are used for sex, you are sexualized. You lose your human status. You are sex, therefore unworthy of belief and impossible to violate. Your testimony that you were sexually abused proves your abuse, which defines you as sex, which makes it incredible and impossible that you were sexually abused. In a world made by pornography, testimony about sexual harassment is live oral pornography starring the victim. Because the account becomes a form of sex, the abuse is rendered consensual in the mind of the viewer.

There is nothing else like this: because she says she was hurt, it is believed she had a wonderful time. Because she says what happened, it is believed that it could not have happened to her. Only words; but because they are sex, the speaker as well as the spoken-about is transformed into sex. This is a dynamic common to sexual harassment and pornography. When talking sex is having sex, as talking pornography was sexual harassment in this case, exposing the reality of sexual harassment can become a kind of pornography, and exposing the reality of pornography, as lived, can become a kind of harassment.

But so what?

What does women's testimony have to do with the protection of free speech that is contained in the First Amendment? What does the First Amendment have to do with women's lives? What does it have to do with pornography and women's lives?

In this new context [in which women have begun to recount their abuse], the expressive issues raised by pornography also change -- or should. Protecting pornography means protecting sexual abuse as speech, at the same time that both pornography and its protection have deprived women of speech, especially speech against sexual abuse. There is a connection between the silence enforced on women, in which we are seen to love and choose our chains because they have been sexualized, and the noise of pornography that surrounds us, passing for discourse (ours, even) and parading under constitutional protection. [...]

In the United States, pornography is protected by the state.(9) Conceptually, this protection relies centrally on putting it back into the context of the silence of violated women: from real abuse back to an "idea," or "viewpoint" on women and sex. In this de-realization of the subordination of women, this erasure of sexual abuse through which a technologically sophisticated traffic in women becomes a consumer choice of expressive content, abused women become a pornographer's "thought" or "emotion." This posture unites pornography's apologists from libertarian economist and judge Frank Easterbrook(10) to liberal philosopher-king Ronald Dworkin,(11) from conservative scholar and judge Richard Posner(12) to pornographers' lawyer Edward DeGrazia.(13) In their approach, taken together, pornography falls presumptively into the legal category "speech" at the outset through being rendered in terms of "content," "message," "emotion," what it "says," its "viewpoint," its "ideas." Once the women abused in it and through it are elided this way, its artifact status as pictures and words gets it legal protection through a seemingly indelible categorical formalism that then must be negated for anything to be done.

In this approach, the approach of current law, pornography is essentially treated as defamation rather than as discrimination.(14) That is, it is conceived in terms of what it says, which is imagined more or less effective or harmful as someone then acts on it, rather than in terms of what it does. Fundamentally, in this view, a form of communication cannot, as such, do anything bad except offend. Offense is all in the head. Because the purveyor is protected in sending, and the consumer in receiving, the thought or feeling, the fact that an unintended bystander might have offended thoughts or unpleasant feelings is a mere externality, a cost we must pay for freedom. That the First Amendment protects this process of interchange -- thought to thought, feeling to feeling -- there is no doubt.

Within the confines of this approach, to say that pornography is an act against women is seen as metaphorical or magical, rhetorical or unreal, a literary hyperbole or propaganda device. On the assumption that words have only a referential relation to reality, pornography is defended as only words -- even when it is pictures women had to be directly used to make, even when the means of writing are women's bodies, even when a woman is destroyed in order to say it or show it or because it was said or shown.

And yet, some forms of "expression" are treated as action, the First Amendment notwithstanding. What are these forms, and why is pornography not among them? Why do we recognize the danger or harm inherent in some forms of expression but not in others? Is there a rationale for the distinctions we have chosen to make?

A theory of protected speech begins here: words express, hence are presumed "speech" in the protected sense. Pictures partake of the same level of expressive protection. But social life is full of words that are legally treated as the acts they constitute without so much as a whimper from the First Amendment. What becomes interesting is when the First Amendment frame is invoked and when it is not. Saying "kill" to a trained attack dog is only words. Yet it is not seen as expressing the viewpoint "I want you dead" -- which it usually does, in fact, express. It is seen as performing an act tantamount to someone's destruction, like saying "ready, aim, fire" to a firing squad. Under bribery statutes, saying the word "aye" in a legislative vote triggers a crime that can consist entirely of what people say. So does price-fixing under the antitrust laws. "Raise your goddamn fares twenty percent, I'll raise mine the next morning" is not protected speech; it is attempted joint monopolization, a "highly verbal crime." In this case, conviction nicely disproved the defendant's view, expressed in the same conversation, that "we can talk about any goddamn thing we want to talk about."(15)

Along with other mere words like "not guilty" and "I do," such words are uniformly treated as the institutions and practices they constitute, rather than as expressions of the ideas they embody or further. They are not seen as saying anything (although they do) but as doing something. No one confuses discussing them with doing them, for instance discussing a verdict of "guilty" with a jury's passing a verdict of "guilty." Nobody takes an appeal of a guilty verdict as censorship of the jury. Such words are not considered "speech" at all. [...]

[Other words] treated as acts in the inequality context include "you're fired," "help wanted -- male," "sleep with me and I'll give you an A," "fuck me or you're fired," "walk more femininely, talk more femininely, dress more femininely, wear makeup, have your hair styled, and wear jewelry," and "it was essential that the understudy to my Administrative Assistant be a man."(18) These statements are discriminatory acts and are legally seen as such. Statements like them can also evidence discrimination or show that patterns of inequality are motivated by discriminatory animus. They can constitute actionable discriminatory acts in themselves or legally transform otherwise nonsuspect acts into bias-motivated ones. Whatever damage is done through such words is done not only through their context but through their content [...]

At one level, we could say that pornography is protected because the courts have been convinced to treat it as a vehicle for the expression of "ideas." Viewed as such, it is protected by the First Amendment. But does pornography really express "ideas"? And if so, is that really all it does? Does it not also cause real harm to real people? And if so, does the state -- does society -- not have a responsibility to ensure that its laws prevent or mitigate this harm as far as possible?

The ideas pornography conveys, construed as "ideas" in the First Amendment sense, are the same as those in mainstream misogyny: male authority in a naturalized gender hierarchy, male possession of an objectified other. In this form, they do not make men hard. The erections and ejaculations come from providing a physical reality for sexual use, which is what pornography does. [...]

Pornography does not simply express or interpret experience; it substitutes for it. Beyond bringing a message from reality, it stands in for reality; it is existentially being there. This does not mean that there is no spin on the experience -- far from it. To make visual pornography, and to live up to its imperatives, the world, namely women, must do what the pornographers want to "say." Pornography brings its conditions of production to the consumer: sexual dominance. [...] Pornography makes the world a pornographic place through its making and use, establishing what women are said to exist as, are seen as, are treated as, constructing the social reality of what a woman is and can be [in terms of what can be done to her], and what a man is [in terms of doing it to her].

As society becomes saturated with pornography, what makes for sexual arousal, and the nature of sex itself [ -- and the place of speech in sex -- ] change. What was words and pictures becomes, through masturbation, sex itself. As the industry expands, this becomes more and more the generic experience of sex, the woman in pornography becoming more and more the lived archetype for women's sexuality in men's, hence women's, experience. In other words, as the human becomes thing and the mutual becomes one-sided and the given becomes stolen and sold, objectification comes to define femininity, and one-sidedness comes to define mutuality, and force comes to define consent as pictures and words become the forms of possession and use through which women are actually possessed and used. [...]

There are many ways to say what pornography says [...] But nothing else does what pornography does. The question becomes, do the pornographers -- saying they are only saying what it says -- have a speech right to do what only it does?

What pornography does, it does in the real world, not only in the mind. [It] is the pornography industry, not the ideas in the materials, that forces, threatens, blackmails, pressures, tricks, and cajoles women into sex for pictures. In pornography, women are gang-raped so they can be filmed. They are not gang-raped by the idea of a gang-rape. It is for pornography, and not by the ideas in it, that women are hurt and penetrated, tied and gagged, undressed and genitally spread and sprayed with lacquer and water so sex pictures can be made. Only for pornography are women killed to make a sex movie, and it is not the idea of a sex killing that kills them. It is unnecessary to do any of these things to express, as ideas, the ideas pornography expresses. It is essential to do them to make pornography.

This does not presume that all pornography is made through abuse or rely on the fact that some pornography is made through coercion as a legal basis for restricting all of it.(29) Empirically, all pornography is made under conditions of inequality based on sex, overwhelmingly by poor, desperate, homeless, pimped women who were sexually abused as children. The industry's profits exploit, and are an incentive to maintain, these conditions. These conditions constrain choice rather than offering freedom. They are what it takes to make women do what is in even the pornography that shows no overt violence.

Similarly, on the consumption end, it is not the ideas in pornography that assault women: men do, men who are made, changed, and impelled by it. Pornography does not leap off the shelf and assault women. Women could, in theory, walk safely past whole warehouses full of it, quietly resting in its jackets. It is what it takes to make it and what happens through its use that are the problem. [...]

Sooner or later, in one way or another, the consumers want to live out the pornography further in three dimensions. Sooner or later, in one way or another, they do. It makes them want to; when they believe they can, when they feel they can get away with it, they do. [...] As pornography consumers, teachers may become epistemically incapable of seeing their women students as their potential equals and unconsciously teach about rape from the viewpoint of the accused. Doctors may molest anesthetized women, enjoy watching and inflicting pain during childbirth, and use pornography to teach sex education in medical school. Some consumers write on bathroom walls. Some undoubtedly write judicial opinions.(27)

Some pornography consumers presumably serve on juries, sit on the Senate Judiciary Committee, answer police calls reporting domestic violence, edit media accounts of child sexual abuse, and produce mainstream films. Some make wives and daughters and clients and students and prostitutes look at it and do what is in it. Some sexually harass their employees and clients, molest their daughters, batter their wives, and use prostitutes -- with pornography present and integral to the acts. Some gang-rape women in fraternities and at rest stops on highways, holding up the pornography and reading it aloud and mimicking it. Some become serial rapists and sex murderers -- using and making pornography is inextricable to these acts -- either freelancing or in sex packs known variously as sex rings, organized crime, religious cults, or white supremacist organizations. Some make pornography for their own use and as a sex act in itself, or in order to make money and support the group's habit.(28)

When you hear the woman next door screaming as she is bounced off the walls by a man she lives with, are you "offended"? Hate speech and pornography do the same thing: enact the abuse. Women's reactions to the presentation of other women being sexually abused in pornography, and the reactions of Jews living in Skokie to having Nazis march through their town, are routinely trivialized in the United States as "being offended." The position of those with less power is equated with the position of those with more power, as if sexual epithets against straight white men were equivalent to sexual epithets against women, as if breaking the window of a Jewish-owned business in the world after Kristallnacht were just so much breaking glass.

Why, then, is pornography sanctioned, even by "liberal" jurists? Is it because the "harm" that it does is not recognized by the law?

Should it matter: the evidence of the harm of such materials -- from testimony of victims (called evidence, not anecdote, in court) to laboratory studies in which variables and predisposed men are controlled for, to social studies in which social reality is captured in all its messiness -- shows that these materials change attitudes and impel behaviors in ways that are unique in their extent and devastating in their consequences. [...]

[And] not even courts equivocate over its carnage anymore.(65) The new insult is that the potency of pornography as idea is said to be proven by the harm it does, so it must be protected as speech.(66) Having made real harm into the idea of harm, discrimination into defamation, courts tell us in essence that to the extent materials are defamatory, meaning they contain defamatory ideas, they are protected, even as they discriminate against women from objectification to murder.

So, where does it come from, this idea that (even) harmful expression must be tolerated? For one thing, it isn't true. As we have already seen, there are numerous instances in which the courts have allowed the government to restrict "speech" if harm can be shown. But never mind that for now -- if we can trace the source and development of the basic idea, perhaps we can see whether it should be applied to the protection of pornography...

"Every idea is an incitement," said Justice Holmes in a famous dissent in an early case on freedom of speech.(67) Whether or not this is true to the same degree for every idea, it has come to mean that every incitement to action that has an idea behind it -- especially a big idea, and misogyny is a very big idea -- is to that degree First Amendment protected territory. This doctrine was originally created to protect from suppression the speech of communists, thought by some to threaten the security of the U.S. government. This experience is the crucible of the "speech" doctrine, its formative trauma [...] This is where we got the idea that we must protect ideas regardless of the mischief they do in the world, where the First Amendment got its operative idea of what an "idea" is.

The official history of speech in the United States is not a history of inequality -- unlike in Europe, where the role of hate propaganda in the Holocaust has not been forgotten. In America, the examples that provide the life resonance of the expressive freedom, the backdrop of atrocities for the ringing declarations, derive mostly from attempts to restrict the political speech of communists during the McCarthy era. Through this trauma, the country relearned its founding lesson: not to stifle political dissent. Horrible consequences to careers, families, privacy, and security resulted from attempts that now look paranoid to shut up what mostly good and creative people could think and say, from academic theory to street advocacy, about the form of government and economic system we should have. The story of the First Amendment is an epic story of overcoming that, of progress, of making sure it never happens again.

The litany predicated on this experience goes like this. The evil to be avoided is government restricting ideas because it disagrees with the content of their political point of view. The terrain of struggle is the mind; the dynamic at work is intellectual persuasion; the risk is that marginal, powerless, and relatively voiceless dissenters, with ideas we will never hear, will be crushed by government power. This has become the "speech you hate" test: the more you disagree with content, the more important it becomes to protect it. You can tell you are being principled by the degree to which you abhor what you allow. The worse the speech protected, the more principled the result. There is a faith that truth will prevail if left alone, often expressed in an openly competitive laissez-faire model taken from bourgeois economics and applied to the expressive marketplace: the "marketplace of ideas" metaphor.(8) The marketplace becomes the battlefield when we are assured that truth will prevail while grappling in open encounter with falsehood, to paraphrase Milton, as he so often is.(9)

In this faith, restricting some speech can only eventuate in restricting more or all speech: the "slippery slope" hazard.(10) Restricting speech is seen to be tempting, to have a seductive power that draws governments to its totalitarian -- also regarded as principled -- logic: if we restrict this bad thing now, we will not be able to stop ourselves from restricting this good thing later. One corollary is that everyone has an interest in everyone else's speech being free, because restriction will get around to you eventually; the less power you have, the sooner it will get around to you. Crucial is that speech cannot be restricted because you fear its consequences: the "bad tendency" or "witch-hunt" doctrine. If some speech is conceded to be risky, more speech to the contrary will eliminate that risk. Most of all, government can make no judgment as to content.(11) For constitutional purposes, there is no such thing as a false idea,(12) there are only more or less "offensive" ones,(13) to remedy which, love of liberty recommends averting the eyes(14) or growing a thicker skin.

Americans are taught this view by about the fourth grade(15) and continue to absorb it through osmosis from everything around them for the rest of their lives, including law school, to the point that those who embrace it think it is their own personal faith, their own original view, and trot it out like something learned from their own personal lives every time a problem is denominated one of "speech," whether it really fits or not. Any issue that strikes this chord, however faintly, gets played this tune, even if the consequences are more like a replay of McCarthyism than resistance to it. [...] At least as ironic is the fact that the substance of the left's forbidden theories, which were a kind of argument for class equality, made no impression on the law of speech at all.

Pornography contains ideas, like any other social practice. But the way it works is not as a thought or through its ideas as such, at least not in the way thoughts and ideas are protected as speech. Its place in abuse requires understanding it more in active than in passive terms, as constructing and performative (31) rather than as merely referential or connotative. [...]

Applying [the] paradigm for political speech to pornography requires placing, by analogy, sexually abused women relative to their abusers, in a position of power comparable to that of the U.S. government relative to those who advocated its overthrow. This is bizarre, given that risk of harm is the issue. Women are far more likely to be harmed through pornography than the U.S. government is to be overthrown by communists. Putting the pornographers in the posture of the excluded underdog, like communists, plays on the deep free speech tradition against laws that restrict criticizing the government. Need it be said, women are not the government? Pornography has to be done to women to be made; no government has to be overthrown to make communist speech. It is also interesting that whether or not forced sex is a good idea -- pornography's so-called viewpoint on the subordination of women -- is not supposed to be debatable to the same degree as is the organization of the economy. In theory, we have criminal laws against sexual abuse. We even have laws mandating sex equality.

Yet the First Amendment orthodoxy that came out of the communist cases is reflexively applied to pornography: if it is words and pictures, it expresses ideas. It does nothing. The only power to be feared as real is that of the government in restricting it. [But this] analogy to communism has the realities reversed. Not only is pornography more than mere words, while the words of communism are only words. The power of pornography is more like the power of the state.(68) It is backed by power at least as great, at least as unchecked, and at least as legitimated. At this point, indeed, its power is the power of the state. State power protects it, silencing those who are hurt by it and making sure they can do nothing about it.

But even if we ignore such distinctions, and insist that pornography is "protected speech" simply because it has some sort of "expressive content," that does not end the debate -- MacKinnon wonders what else we must accept on the same grounds. If "communists" were throwing bombs at us and telling us their reasons at literally the same time, would the latter "speech" prevent us from restricting the former "action"? If "expression" occurs not alone but integrally with (harmful) action, isn't it really a sort of (harmful) "speech-act" taken as a whole? If so, should it necessarily be protected by the First Amendment? To make the point -- or, at least, the question -- clear, the author asks if any act can gain constitutional protection as soon as its "expressive content" is made explicit...

The legal treatment of crossburning in another recent Supreme Court opinion provides yet another example of the incoherence of distinguishing speech from conduct in the inequality context. Crossburning is nothing but an act, yet it is pure expression, doing the harm it does solely through the message it conveys. Nobody weeps for the charred wood. By symbolically invoking the entire violent history of the Ku Klux Klan, it says, "Blacks get out," thus engaging in terrorism and effectuating segregation. It carries the message of historic white indifference both to this message and to the imminent death for which it stands. [...]

Like pornography, crossburning is seen by the Supreme Court to raise crucial expressive issues. Its function as an enforcer of segregation, instigator of lynch mobs, instiller of terror, and emblem of official impunity is transmuted into a discussion of specific "disfavored subjects."(49) The burning cross is the discussion. The "subject" is race -- discriminating on the basis of it, that is. The [court's] bland indifference to reality is underlined by the lack of a single mention of the Ku Klux Klan [in its opinion. But, recognizing] the content communicated, Justice Stevens nonetheless characterized the crossburning as "nothing more than a crude form of physical intimidation."(50)

In this country, nothing has at once expressed racial hatred and effectuated racial subordination more effectively than the murder and hanging of a mutilated body, usually of a Black man. I guess this makes Black male bodies the subject of the discussion. Lynching expresses a clear point of view.(51) Photographs were sometimes taken of the body and sold, to extend its message and the pleasure of viewing it.(52) More discussion. Are these acts inexpressive and contentless? Are the pictures protected expression? Is a Black man's death made unreal by being photographed the way women's subordination is?(53) Suppose lynchings were done to make pictures of lynchings. Should their racist content protect them as political speech, since they do their harm through conveying a political ideology? Is bigoted incitement to murder closer to protected speech than plain old incitement to murder?(54) Does the lynching itself raise speech issues, since it is animated by a racist ideology? If the lynching includes rape, is it, too, potentially speech? A categorical no will not do here. Why, consistent with existing speech theory, are these activities not expressive? If expressive, why not protected?

In general, racial and sexual harassment have been the discriminatory acts in court that they are in life until recently, when two contested areas escalated and converged. Women complained that pornography at work constituted sexual harassment in employment, and universities prohibited racial harassment on campus on the model of existing sexual harassment prohibitions. Suddenly, harassment became an issue of speech. Practices of bigotry and inequality were transformed into discussions and debates. Threats became statements of political ideology. What had been judicially understood as acts of discrimination became a dialogue about ideas.

In a case involving pornography as sexual harassment, the employer argued that pornography at work was protected expression, something the workers at Jacksonville Shipyards wanted to say to first-class welder Lois Robinson, their opinions about women and sex. Their "views" included naked women supposedly having sex with each other; a woman masturbating [...] with a towel; a nude woman on a heater control box with fluid coming from her vaginal area; a woman with long blonde hair (like Lois) wearing only high heels and holding a whip (one welding tool is called a "whip"); and countless women in full labial display. When Lois Robinson protested, the men engaged in more of what the ACLU brief against her termed "speech" by posting a sign stating "Men Only."(31) Suddenly, because Lois Robinson's sexual harassment complaint centered on pornography, her sexual harassment claim invoked the First Amendment, at least so far as relief was concerned.

Or so you might think.

The law of equality and the law of freedom of speech are on a collision course in this country. Until this moment, the constitutional doctrine of free speech has developed without taking equality seriously -- either the problem of social inequality or the mandate of substantive legal equality. [... The] modern doctrine of speech dates from considerably after the entrenchment of equality in the Fourteenth Amendment,(1) and still the First Amendment has been interpreted, with a few exceptions, as if it were not there.

More precisely, the First Amendment has grown as if a commitment to speech were no part of a commitment to equality and as if a commitment to equality had no implications for the law of speech -- as if the upheaval that produced the Reconstruction Amendments did not move the ground under the expressive freedom, setting new limits and mandating new extensions, perhaps even demanding reconstruction of the speech right itself.

Both bodies of law [fail to acknowledge] the damage done to social equality by expressive means and [show] a substantial lack of recognition that some people get a lot more speech than others.(3) [... Moreover, it is not understood that] there is a relationship between these two issues -- the less speech you have, the more the speech of those who have it keep you unequal; the more the speech of the dominant is protected, the more dominant they become and the less the subordinated are heard from [...] Issues at the equality-speech interface are not framed as problems of balance between two cherished constitutional goals, or as problems of meaningful access to either right in the absence of the other, but as whether the right to free speech is infringed acceptably or unacceptably. Equality-promoting provisions on hate crimes, campus harassment, and pornography,(4) for example, tend to be attacked and defended solely in terms of the damage they do, or do not do, to speech. At the same time, issues such as racial segregation in education, with its accompanying illiteracy and silence, are framed solely in equality terms, rather than also as official barriers to speech and therefore as violations of the First Amendment.(5) [...]

This mutual one-sidedness in the law has made it virtually impossible to create a community of comprehension that there is a relation, for example, between the use of the epithet "nigger" and the fact that a disproportionate number of children who go to bed hungry every night in this country are African-American; or the use of the word "cunt" and the fact that most prostitutes are women. It creates no room to see that slave codes that made it a crime to teach a slave to read, or schools in which Black children cannot learn to write, deny them freedom of speech; or that [for judges to eliminate] grievance procedures that recognize racist or homophobic vilification as barriers to education officially denies students equality in education.(7) The tensions and intersections between the deeper principles and wider orbits of equality and speech remain unmapped, equality unspeaking and speech unequal.

Constitutional equality has never been the interest that hate speech prohibitions are seen to promote.(24) No one to my knowledge has proposed that Congress prohibit hate propaganda to effectuate the Fourteenth Amendment. Instead, when hate speech regulations are assessed, the question has been: does a given law trench too far, or not too far, on the right of free speech? The political speech litany is invoked: nasty ideas that may or may not cause harm, depending on whether they are acted upon (we are supposed to wait); truth outing; more speech solving the problem; swallowing your gorge and adjusting your dignitary standards if you want to be part of the big bad real world. This, under a document that accepts balancing among constitutional interests as method.

So there never has been a fair fight in the United States between equality and speech as two constitutional values, equality supporting a statute or practice, speech challenging it. Courts have balanced statutory equality interests against the constitutional speech protection. Equality always won these fights until pornography, statutorily framed as sex inequality, lost to the First Amendment, and now equality is losing to speech-based attacks on hate provisions as well.(29) In other words, pornography ordinances and hate crime provisions fail constitutional scrutiny that they might, with constitutional equality support, survive.

[Equality is generally not] recognized as legally relevant to the problem of pornography, which is addressed instead under the First Amendment doctrine of obscenity. Obscenity law started with the "deprave and corrupt the morals of consumers" test (they're being hurt); moved through the censorship of literature from Joyce through Radclyffe Hall to Henry Miller, making them all bestsellers (they're being hurt); winding up with the Supreme Court devising its own obscenity test,(36) which is so effective that, under it, the pornography industry has quadrupled in size (they're being hurt?). [...] Adding to the unworkability of the obscenity test is the requirement that the state prove "prurient interest": is the average person turned on? The more violent pornography is, the less willing juries and police are to say it is arousing, [and yet] more and more pornography is more and more violent, and arousing.

Equally difficult in practice has been the requirement in the obscenity test that community standards be proven violated. The more pornography there is, the more it sets de facto community standards, conforming views of what is acceptable to what is arousing, even as the stimulus to arousal must be more and more violating to work. In other words, inequality is allowed to set community standards for the treatment of women. What is wrong with pornography is that it hurts women and their equality. What is wrong with obscenity law is that this reality has no role in it. This irrelevant and unworkable tool is then placed in the hands of the state, most of whose actors have little interest in stopping this abuse but a substantial interest in avoiding prosecutions they cannot win. The American law of obscenity, as a result, is only words.

One way to think about issues of expressive freedom here is to ask whether something works through thought or not through thought. An argument that some races or genders or sexual persuasions are inferior to others is an argument -- an antiegalitarian argument, a false argument, a pernicious argument, an argument for hate and for hierarchy, but an argument nonetheless. It is an act of inequality of a particular kind, whose consequences for social inequality need to be confronted on constitutional terrain where equality and speech converge, in a context as sensitive to the need for equality guarantees in the law of speech as for speech guarantees in the law of equality. [But] so-called speech that works as a sex act is not an argument. An orgasm is not an argument and cannot be argued with. Compared with a thought, it raises far less difficult speech issues, if it raises any at all.

On the basis of its reality, Andrea Dworkin and I have proposed a law against pornography that defines it as graphic sexually explicit materials that subordinate women through pictures or words.(32) This definition describes what is there, that is, what must be there for the materials to work as sex and to promote sexual abuse across a broad spectrum of consumers. This definition includes the harm of what pornography says -- its function as defamation or hate speech -- but defines it and it alone in terms of what it does -- its role as subordination, as sex discrimination, including what it does through what it says. This definition is coterminous with the industry, from Playboy, in which women are objectified and presented dehumanized as sexual objects or things for use; through the torture of women and the sexualization of racism and the fetishization of women's body parts; to snuff films, in which actual murder is the ultimate sexual act, the reduction to the thing form of a human being and the silence of women literal and complete. Such material combines the graphic sexually explicit -- graphically showing explicit sex -- with activities like hurting, degrading, violating, and humiliating, that is, actively subordinating, treating unequally, as less than human, on the basis of sex. Pornography is not restricted here because of what it says. It is restricted through what it does. Neither is it protected because it says something, given what it does.

[It defined] the documented harms pornography does as violations of equality rights and [made] them actionable as practices of discrimination, of second-class citizenship. This ordinance [allowed] anyone hurt through pornography to prove its role in their abuse, to recover for the deprivation of their civil rights, and to stop it from continuing. Judicially, this was rendered as censorship of ideas.

In American Booksellers v. Hudnut, the Court of Appeals for the Seventh Circuit found that this law violated the First Amendment. It began by recognizing that the harm pornography does is real, conceding that the legislative finding of a causal link was judicially adequate: "... we accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. In the language of the legislature, '[p]ornography is central in creating and maintaining sex as a basis of discrimination.'"(42)

Writing for the panel, Judge Easterbrook [seemed to understand] that "subordination" is something pornography does, not something it just says, and that [the proposed law required that] its active role had to be proven in each case [...] But he kept losing his mental bearing and referring to pornography as an "idea,"(43) finally concluding that the harm it does "demonstrates the power of pornography as speech."(44) This is like saying that the more a libel destroys a reputation, the greater is its power as speech. To say that the more harm speech does, the more protected it is, is legally wrong, even in this country.

Implicitly applying the political speech model, Judge Easterbrook said that the law restricted the marketplace of ideas, the speech of outcast dissenters -- referring presumably to those poor heads of organized crime families making ten billion dollars a year trafficking women. He said the law discriminated on the basis of point of view, establishing an approved view of what could be said and thought about women and sex. He failed to note at this point that the invalidated causes of action included coercion, force, and assault, rather a far cry from saying and thinking. He reminded us of Sullivan, whose most famous dictum is that to flourish, debate must be "uninhibited, robust, and wide-open."(45) Behind his First Amendment facade, women were being transformed into ideas, sexual traffic in whom was protected as if it were a discussion, the men uninhibited and robust, the women wide-open.

Judge Easterbrook did not [deny that this law was] a sex discrimination law, but he gave the state interest it therefore served -- opposition to sex inequality -- no constitutional weight. He did this by treating it as if it were a group defamation law, holding that no amount of harm of discrimination can outweigh the speech interests of bigots, so long as they say something while doing it. Besides, if we restrict this, who knows where it will end. He is sure it will end with "Leda and the Swan." He did not suggest that bestiality statutes also had to go, along with obscenity's restrictions on depictions of sex between humans and animals. [After all, both of these] restrict a disapproved sexuality that, no doubt, contains an element of "mental intermediation."(46) [Nor did he explain] why, if pornography is protected speech based on its mental elements, rape and sexual murder, which have mental elements are not as well.

MacKinnon notes one final irony in the court's decision...

Perhaps it is the nature of legal inequality that was missed by the Seventh Circuit [...] Discrimination has always been illegal because it is based on a prohibited motive [...In fact, a] showing of discriminatory intent is required under the Fourteenth Amendment. [But now] we are told that this same motive, this same participation in a context of meaning, this same hatred and bigotry, these same purposes and thoughts, presumably this same intent, protect this same activity under the First Amendment. The courts cannot have it both ways, protecting discriminatory activity under the First Amendment on the same ground they make a requirement for its illegality under the Fourteenth.

Like Yossarian in Joseph Heller's novel, I, too, am moved very deeply by the absolute simplicity of this device. And I, too, must let out a respectful whistle. "That's some catch, that Catch-22." ("It's the best there is," Doc Daneeka agreed.)

So, a final overview of MacKinnon's position...

Social inequality is substantially created and enforced -- that is, done -- through words and images. Social hierarchy cannot and does not exist without being embodied in meanings and expressed in communications. A sign saying "White Only"(16) is only words, but it is not legally seen as expressing the viewpoint "we do not want Black people in this store," or as dissenting from the policy view that both blacks and whites must be served, or even as hate speech, the restriction of which would need to be debated in First Amendment terms. It is seen as the act of segregation that it is, like "Juden nicht erwünscht!"(17) Segregation cannot happen without someone saying "get out" or "you don't belong here" at some point. Elevation and denigration are all accomplished through meaningful symbols and communicative acts in which saying it is doing it.

I am not saying that pornography is conduct and therefore not speech, or that it does things and therefore says nothing and is without meaning, or that all its harms are noncontent harms. In society, nothing is without meaning. Nothing has no content. Society is made of words, whose meanings the powerful control, or try to. At a certain point, when those who are hurt by them become real, some words are recognized as the acts that they are. [And on the action side,] nothing that happens in society lacks ideas or says nothing, including rape and torture and sexual murder. This presumably does not make rape and murder protected expression, but, other than by simplistic categorization, speech theory never says why not. [...]

Because society is made of language, distinguishing talk about inferiority from verbal imposition of inferiority may be complicated at the edges, but it is clear enough at the center with sexual and racial harassment, pornography, and hate propaganda. At the very least, when equality is taken seriously in expressive settings, such practices are not constitutionally insulated from regulation on the [spurious] ground that the ideas they express cannot be [judged by the state]. Attempts to address them would not be prohibited -- as they were in rejecting the Indianapolis pornography ordinance, for example -- on the [spurious] ground that, in taking a position in favor of equality, such attempts assume that the idea of human equality is true. The legal equality guarantee has already decided that. [...] In other words, expressive means of practicing inequality can be prohibited.

Is MacKinnon right? Is the Fourteenth Amendment to be taken as seriously as her argument requires? Is "equal protection" an affirmative responsibility of the state? Do we owe each other an equal right to fulfill our potential as human beings? Perhaps, but, as MacKinnon herself points out, the history of the United States is not uniformly a history of equality taken seriously. Our "ringing declarations" notwithstanding, we have allowed inequality to injure, and fester, and be exploited. And when the resulting laissez-faire injustice collides with our myths, as eventually it always does -- what then?

Forty years ago, the Supreme Court confronted the political history of the Fourteenth Amendment:

  |
  |  The most avid proponents of the post-War Amendments
  |  undoubtedly intended them to remove all legal
  |  distinctions among "all persons born or naturalized
  |  in the United States."  Their opponents, just as
  |  certainly, were antagonistic to both the letter and
  |  the spirit of the Amendments and wished them to
  |  have the most limited effect.  What others in
  |  Congress and the state legislatures had in mind
  |  cannot be determined with any degree of certainty.
  |
  |  -- Brown et al. v. Board of Education of Topeka et al.,
  |     347 U.S. 483 (1954); 74 S. Ct. 686
  |

Cheers,
dks

So there was a madness about wide-open beavers. There was also a madness about a soft, weak metal, an element, which had somehow been declared the most desirable of all elements, which was gold. And the madness about wide-open beavers was extended to underpants when Dwayne and Trout and I were boys. Girls concealed their underpants at all costs, and boys tried to see their underpants at all costs.

-- Kurt Vonnegut, Jr., in Breakfast of Champions

Selected Footnotes

Diana E. H. Russell, The Secret Trauma (1986) and Rape in Marriage (1990); United States Merit Protection Board, Sexual Harassment of Federal Workers: Is It a Problem? (1981); Sexual Harassment of Federal Workers: An Update (1988); Majority Staff of U.S. Senate Judiciary Committee, Violence against Women: A Week in the Life of America (1992).

Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 379 (1973) ("help wanted -- male"); Alexander v. Yale Univ., 459 F. Supp. l, 3-4 (D. Conn. 1977), aff'd, 631 F.2d 178 (2d Cir. 1984) (offer of "A" grade for sexual compliance); Stockett v. Tolin, 791 F. Supp. 1536, 1543 (S.D. Fla. 1992) ("F--- me or you're fired"); Hopkins v. Price Waterhouse, 825 F.2d 458, 463 (D.C. Cir. 1987) ("walk more femininely ..."); Davis v. Passman, 442 U.S. 228, 230 (1979) ("... be a man").

Documentation of the harm of pornography in real life is contained in Public Hearings on Ordinances to Add Pornography as Discrimination against Women, Minneapolis City Council, Government Operations Committee (Dec. 12 and 13, 1983); M. McManus, ed., Final Report of the Attorney General's Commission on Pornography (1986); Pornography and Prostitution in Canada:. Report of the Special Committees on Pornography and Prostitution (1985). See also Diana E. H. Russell, "Pornography and Rape: A Causal Model," 9 Political Psychology 41 (1988); Gloria Cowan et al., "Dominance and Inequality in X-Rated Videocassettes," 12 Psychology of Women Quarterly 299, 306-307 (1988); Park E. Dietz and Alan E. Sears, "Pornography and Obscenity Sold in Adult Bookstores: A Survey of 5,132 Books, Magazines, and Films in Four American Cities," 21 University of Michigan Journal of Law Reform 7, 38-43 (1987-88) (documenting violence, bondage, sadomasochism, and gender differences in pornography); Neil M. Malamuth and Barry Spinner, "A Longitudinal Content Analysis of Sexual Violence in the Best-Selling Erotic Magazines," 16 Journal of Sexual Research 226-227 (1980) (documenting increases in violent sex in pornography).

For discussion, see Andrea Dworkin and Catharine A. MacKinnon, Pornography and Civil Rights: A New Day for Women's Equality (1988). The Model Ordinance, making pornography actionable as a civil rights violation, defines "pornography" as "the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following: (a) women are presented dehumanized as sexual objects, things, or commodities; or (b) women are presented as sexual objects who enjoy humiliation or pain; or (c) women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assault; or (d) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (e) women are presented in postures or positions of sexual submission, servility, or display; or (f) women's body parts -- including but not limited to vaginas, breasts, or buttocks -- are exhibited such that women are reduced to those parts; or (g) women are presented being penetrated by objects or animals; or (h) women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual." In this definition, the use of "men, children, or transsexuals in the place of women" is also pornography.

Excerpts from the Constitution of the United States

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Passed by Congress September 25, 1789.
Ratified December 15, 1791.

The Fourteenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws. ...

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Passed by Congress June 13, 1866.
Ratified July 9, 1868