Legal scholar Catharine MacKinnon and author Andrea Dworkin, both professors, collaborated in 1983 to forge a radical feminist attack on pornography. Both scholars are actively involved with women's issues and write and speak on topics including sexual harassment, sexuality, rape, and feminist jurisprudence. They co-authored a model antipornography ordinance which marked the first attempt to classify pornography as sex discrimination. This innovative and highly controversial legislation was adopted by the Minneapolis and Indianapolis city councils and sparked many nationwide debates, legal critiques, and court challenges. Although the law was ultimately defeated in both cities, the Supreme Court of Canada recently adopted the ordinance,1 the state of Massachusetts created similar legislation, and the U.S. Senate is currently debating a proposed Pornography Victims Compensation Act.2
MacKinnon and Dworkin claim that pornography depicts women as inferior to men and thus devalues their speech and deprives them of their right to equal participation in the political marketplace. Pornography eroticizes male dominance, creating a climate of male supremacy which reinforces and perpetuates sexual inequality. MacKinnon and Dworkin hold that most men consider the woman, rather than sex itself, to be impure and dirty, and that men keep their sexual conquest of her private to insure against a backlash from outraged women. These men feel it is their natural right to enjoy pornography, the trafficking in women's flesh.
While MacKinnon and Dworkin claim that banning pornography would restore dignity to the female voice, a critical analysis of their efforts reveals that they substitute one form of oppression with another, replacing male supremacist representations of women as inferior with equally misogynous views of women as helpless, deluded victims. Their censorship scheme attacks materials which have not been proven to pose a significant threat to women's rights and well-being. MacKinnon and Dworkin deny women as well as men their rights to view and produce pornography, without showing that the government's interest in protecting women is sufficiently compelling to override the freedom of speech guaranteed by the First Amendment. This restriction of free expression would harm rather than help women by closing off avenues of debate that could lead to improved gender relations and understanding.
The Terms of Debate
MacKinnon and Dworkin's arguments hinge on their interpretations of key
terms used in the debate over sexually explicit materials.
"Pornography" is a word that eludes definition, both in legal and
popular terms. Some may place all sexually explicit materials in this
category, others may limit it to graphic depictions of sexual activity,
and still others may consider pornography to be descriptive of
dominant-submissive relationships. The lack of consensus over the
inclusiveness of the category "pornography" is a major obstacle toward
productive legal guidelines in this area.
In both legal and popular discussion, many people generally describe specific sexually explicit materials as either erotic, obscene, or pornographic. These categories overlap and can also be used to describe non-explicit or even non-sexual materials. Because of the inherent subjectivity of these terms, debating parties gain leverage by choosing the definitions which present the best case for restricting or allowing access to the material in question. Feminists such as MacKinnon and Dworkin may criticize conservative lawmakers for restricting only what they designate as obscene and thus morally offensive to people who share their mindset. However, MacKinnon and Dworkin also make moral judgments in defining what is pornographic and thus offensive to people like themselves.
Dworkin is inconsistent in her definitions of terms relating to pornography; she interprets some words according to their contemporary usages, but for others she relies on etymology if it better suits her intentions. The word erotic is derived from the Greek eros, meaning "of love".3 Many feminists tend to classify erotic material as descriptive of a mutually satisfying, amatory relationship. However, Dworkin notes that in our male-supremacist society, "erotica is simply high-class pornography,"4 and she finds that pornography depicts unequal power relationships in which mutual sexual satisfaction is impossible.
The word obscene probably is derived from the Latin caenum, meaning dirt or filth.5 Here Dworkin relies on the etymology of the term for its definition; therefore, for Dworkin "obscenity" is synonymous with "filthy."6 However, the origin of a word does not necessarily convey its modern usage. While in defining "erotica" Dworkin chooses to illustrate the contemporary use of the word rather than its etymology, for "obscene" she chooses the opposite - in each case, to support her position that most sexually explicit materials show women as inferior (as in pornography, which she claims subsumes erotica) and filthy (as in obscenity).
Of course, defining "obscene" as "offensive to modesty or decency" rather than "filthy" would also support Dworkin's assertion that men see women as inferior, but only if one accepted the view that obscene material depicts as offensive women in particular and not the sexual act in general. Dworkin and MacKinnon's primary argument with obscenity law is that it makes a value judgment based on male-centered morality. MacKinnon claims that obscenity is defined by the men in power as what is threatening to male sexuality.7 According to Dworkin, men have the power of sex but avoid responsibility for their acts by claiming that women manipulate men's sexual behavior.8 Women are therefore a constant threat to men's sexual control.
This image of woman as temptress is a part of a conservative religious ideology but does not explain contemporary obscenity doctrine to the extent assumed by Dworkin and MacKinnon. This moral condemnation of "indecent" material applies to sexually explicit depictions in general, emphasizing the harm such material causes both genders. For fundamentalist Christians and orthodox Jews, among others who tend toward conservatism in both politics and lifestyle, sexual activity outside of marriage is condemned, and this activity is meant primarily for procreation, not recreation - therefore, non-coital sexual activities such as oral sex or masturbation are discouraged, if not forbidden. Even from a non-religious standpoint, conservatism emphasizes the virtues of long-term commitment and self-control in sexual relationships. These sexual activities are of a private nature and are degraded when made public.9 Few marketable pornographic materials would espouse such ideals; therefore, members of these conservative traditions condemn most pornography as "obscene."
For religious conservatives, pornography is especially threatening, not only to male sexuality but to the Judeo-Christian family structure. Dworkin would argue that this structure itself is sexist; she claims that "Marriage as an institution developed from rape as a practice."10 However, Dworkin's arguments go beyond criticism of the traditional family to outright condemnation of male sexuality and heterosexual activity, and this extreme position calls her objectivity into question. While it is true that women have a lower status among many conservatives, the religious argument against obscenity is not designed solely to keep women inferior to men; rules against sexual misconduct apply (in theory, at least) equally to both genders.
Dworkin returns to Greek roots for support for her definition of pornography: "the graphic depiction of whores."11 This etymology is correct; however, she goes on to emphasize that in ancient Greece the porne were the lowest class of whores, a class even lower than female slaves.12 One wonders how many people who view or participate in pornography know this history and act with it in mind. Dworkin here fails to admit that a word may evolve until its original meaning is no longer commonly accepted. She acknowledges this evolution in her definition of "erotic," but with the word "pornography" it is more useful to her argument to supply the original, more dramatic and disturbing meaning.13
Dworkin's definition of pornography is central to her argument that, in the male view, all women are whores by nature. In fact, one of the defining characteristics of pornography in her model antipornography ordinance is "women are presented as whores by nature."14 Dworkin and MacKinnon both assert that pornography mirrors reality; the degradation of women as whores occurs both in front of the camera and in everyday life. Dworkin claims that "The metaphysics of male sexual domination is that women are whores. This basic truth transcends all lesser truths in the male system."15 In Dworkin's male system, a woman's sole purpose is to be used by men; this function is her natural duty and one that a normal woman sincerely desires to fulfill.
The determination that a given photograph, video, or book depicts women in this manner must necessarily be subjective, and requiring public officials to make such a sensitive decision (as the MacKinnon/Dworkin ordinance stipulates) may work against Dworkin's objectives. If sexism in society is as pervasive as she and MacKinnon suggest, few citizens, particularly the primarily male elected officials and judges, would be sensitive enough to women's concerns to recognize depictions of whorish behavior.
The Pornography Industry
MacKinnon and Dworkin claim that pornography is a national menace,
infiltrating and dominating every aspect of women's lives. An brief
overview of the pornography industry over the last two decades reveals
that a greater variety of materials appears to be available now than
ever before, and many of these materials are becoming increasingly
sexually explicit. However, pornography sales did not increase
noticeably during that time period; some genres even went into
Sexually explicit materials are available in several formats, including films, magazines, and books. Consumers purchase and rent these materials at adult and conventional bookstores, newsstands, and video outlets. This report will focus on film rentals and magazines because these are the most widely recognized media and they provide more reliable statistics than other formats.
Porn films are a popular form of adult entertainment. In 1970, 524 "exploitation theaters" exhibited sexually explicit videos, and an additional 356 theaters showed such films on an irregular basis.17 By 1985, 1700 new sexually explicit videos were released,18 and full-length sex films were distributed to nearly 700 "adults only" porn theaters.19
The introduction of videocassette recorders to the American public in 1975 expanded the pornography industry's potential market and possibilities.20 Porn film releases escalated sharply in the early 1980's but declined somewhat in the latter part of the decade (see Figures I and II).21 In 1985, an estimated 12,000 out of 20,000 video retail outlets distributed sexually explicit videotapes.22 Thirteen percent of the videotape market that year consisted of adult films.23 By 1990, adult video constituted 20% of videocassette sales.24
Sexually explicit magazines form another popular and highly visible pornography medium. One report estimates that 50,000 to 60,000 different sexually explicit magazines were available in the United States in 1985.25 Several hundred titles are listed in this report, but many of the separate listings are simply different issues of the same magazines, so the numbers are somewhat inflated.26 While the total number of pornographic publications may seem large, the circulation of the most popular porn magazines appears to be decreasing. According to the Audit Bureau of Circulation,27 the combined circulation of the two top-selling sexually explicit magazines, Playboy and Penthouse, peaked in 1980 and declined steadily thereafter (see Figure III).28
More recent technological developments introduced a wider variety of sexually explicit materials into the market, and this increase in available formats may lead critics to point to an "explosion" in pornography which may not actually exist. Sex-oriented cable and satellite television programming, telephone dial-a-porn services, and computer services helped make pornography more visible, because it can be brought into the home more easily and cheaply through these media. However, no available empirically sound data demonstrates a significant increase in the total volume of sexually explicit materials over the last two decades.
While the volume of trade in pornography may not have changed significantly, evidence indicates that the content of widely distributed pornographic materials has become more explicit. Most widely distributed adult magazines from the 1960's depicted little actual sexual activity,29 and photographic reproductions of vaginal and/or oral penetration were sold almost universally under the counter.30 In contrast, magazines containing graphic depictions of intercourse have been publicly displayed in adult bookstores since the 1980's. Such graphic depictions do not typify a majority of magazines sold; simulated sexual interaction is more common. One content analysis of sexually explicit magazines sold in an adult bookstore classified 25.3% of the 430 magazines as containing predominantly heterosexual activity, of which 8.4% included "actual genital and body-part interaction."31
Sexual explicitness may indeed be increasing, but antipornography activists such as MacKinnon and Dworkin are less interested in graphic portrayals per se and more concerned with the images of violence in pornography, for they both share Dworkin's view that "there is no male conception of sex without force as the central dynamic."32 A longitudinal content analysis of sexual violence in Playboy revealed that violent depictions did not show a steady rise from the years 1954 to 1983, and the number of violent depictions, which was extremely small over the entire 30 year period, actually decreased after 1977.33 Another longitudinal study of Playboy and Penthouse did demonstrate an increase in the number of violent depictions in the two magazines from 1973 to 1977, but this increase was mostly the result of Penthouse, and only a small percentage of the depictions were sexually violent.34
While these studies indicate that the best-selling porn magazines do not devote a significant number of their pages to violence, the possibility remains that other erotic publications may contain greater proportions of violent depictions. Nevertheless, little available evidence supports claims of an increase in sexually violent pictorials, and MacKinnon and Dworkin rely more on intuition rather than numbers when making such claims. Since they view most male-initiated sexual activity as based on force, it is likely that they label many more pictorials as violent than the general public would.
Pornography and the First Amendment
Whether violent or nonviolent, most pornography available today is
legally protected speech under the First Amendment. Current federal
law denies constitutional protection to certain limited categories of
speech: libel, "fighting words," obscenity, and child pornography.
Some of these restrictions purport to safeguard individuals from
imminent physical danger ("fighting words" and child pornography) or
false defamation (libel). However, the law of obscenity, designed to
insure that the "marketplace of ideas" is not cluttered with extraneous
information, derives from value judgments about the appropriateness of
explicit public discussions and representations of human sexuality.
While MacKinnon and Dworkin also make value judgments in their antipornography legislation, they correctly surmise that current obscenity law is unable to address their concerns. Both kinds of legislation attack material that is offensive to moral sensibilities. Under obscenity law, explicit, arousing material is offensive, whereas under feminist antipornography law, material portraying women as subservient to men is offensive. These two approaches reflect very different concerns.
Current obscenity law is based on the 1973 Supreme Court decision in Miller v. California.35 In this case, the Court established a test for determining whether or not material is obscene. This test determines: 1) whether the average person, applying contemporary standards of the state or local community, would find that the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (the "SLAPS" test).36
The Supreme Court did not specifically define what an "average person" might be, but used this term to distinguish Miller from an earlier obscenity law in which the sensitivities of the "most susceptible person" were paramount.37 The Court also failed to provide a specific definition of the term "patently offensive" but did provide examples of acts which might be deemed as such by the local communities: "ultimate sexual acts, normal or perverted, actual or simulated," and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."38 Without SLAPS test value, such depictions could be banned if they were both sexually arousing and patently offensive. This decision mandates a value judgment which places the moral sensibilities of those who dislike graphic sexual portrayals above the desires of those who wish to view such materials.
This doctrine is implicitly defended by the idea that the drafters of the Constitution intended the First Amendment to protect only that communication that contributed to the "marketplace of ideas." The Supreme Court established a dichotomy between "worthwhile" and "worthless" speech in the 1942 case Chaplinsky v. New Hampshire,39 which separated expression that had social value as a step to truth from expression that had little, if any, such value.40 Legal scholars such as Alexander Meiklejohn have theorized that the drafters of the Constitution intended political speech, the only speech which contributes meaningfully to this quest for truth, to have absolute protection, whereas private speech could be abridged.41 Under this theory, the kind of speech covered by obscenity law is considered "worthless" because it has no meaningful purpose, other than to arouse one sexually.
MacKinnon's feminist jurisprudence attacks this idealistic vision of an open political marketplace. As long as women are excluded from political debate, whether or not pornography is at fault, the concept of the marketplace of ideas has no relevance. The SLAPS test is also irrelevant in her antipornography legislation because the harm she claims the material does to women negates any possible redeeming value. Most importantly, MacKinnon recognizes that obscenity, like all speech, represents an idea: she claims it is defined by male power as what is threatening to male sexuality.42 Thus, "obscene" materials are not merely throwaway aphrodisiacs with no meaningful significance; they represent particular viewpoints about an important aspect of human experience.
Despite these astute observations, MacKinnon errs when she claims that obscenity law is about morality whereas feminism is about political power, for both traditional and feminist jurisprudence involve moral judgments. The values of MacKinnon and Dworkin dictate that pornography degrades women, whereas the values of obscenity law supporters say that obscenity degrades humanity. MacKinnon tries to separate obscenity from pornography by claiming that obscenity is an idea, whereas pornography is an act, but these two categories cannot be separated so readily. Both actions and ideas are involved in the production of all sexually explicit materials, whether they are considered obscene, pornographic, erotic, or some combination of the three. Even pure "appeal to prurient interest" with no other intent is an idea. And as distasteful and untruthful as it may be, the view that women are inferior is also an idea. When MacKinnon and Dworkin attack pornography, they are first attacking the statement it makes about women; it is this idea that causes the alleged harm.
The Supreme Court comes closer to prohibiting actions rather than censoring speech in its approach to child pornography. In the 1982 decision New York v. Ferber,43 the Court banned all use of minors in sexual performances, whether or not the resulting material had serious social value. This flat prohibition was deemed necessary to safeguard the physical and psychological well-being of minors, a concern which outweighed the freedom of expression in this case. Outlawing the advertising and selling of child pornography removed economic incentives to produce this type of material, and thus helped to combat child abuse.44
Parts of the MacKinnon/Dworkin antipornography statute are similar to the Ferber approach; both emphasize the harms to the performers involved. However, MacKinnon's legislation concerns consenting adults rather than minors, although she and Dworkin seem to believe that the majority of pornographic models are coerced into performing because no woman could truly derive satisfaction from such an activity. Their legislation also differs from Ferber because it deals mainly with the effects of pornography on all women, rather than just the performers.
The MacKinnon/Dworkin Antipornography Ordinance
The MacKinnon/Dworkin model antipornography law differs from obscenity
law most significantly by defining pornography as sex discrimination.
The ordinance states that "pornography is a systematic practice of
exploitation and subordination based on sex that differentially harms
women."45 MacKinnon and
Dworkin more specifically define pornography as: "the graphic sexually
explicit subordination of women through pictures and/or words that also
includes one or more of the following:
Despite this apparent attempt to provide a detailed, specific definition of pornography, many of the terms are vague. Sections (i), (v), (vi), and (vii) are particularly troublesome, for they require highly subjective determinations. No specific guidelines indicate how to assess whether a woman is being presented as an "object, thing, or commodity," as "reduced to" certain body parts, or "in postures or positions of sexual submission, servility, or display." Any photograph or piece of writing can be viewed from many different perspectives, and it is unrealistic to expect that there is or should be a consensus on what constitutes objectification or subjugation.
Section (vii) highlights Dworkin's influence in this legislation, since her feminist argument is premised on the definition of pornography as "the graphic depiction of whores." Under this interpretation, all pornography would seem to present women as "whores by nature," regardless of whether any of the other characteristics listed were present. However, determining whether a woman is portrayed as a "whore by nature" is an entirely subjective call. Even defining the term "whore" further may not help to clarify this section, because the fact that a woman may appear whorish - perhaps defined as "wanting to be used," in Dworkin's terms - in one particular portrayal does not imply that she or any other woman or all women are whores by nature.
Through the ordinance's definition of pornography, Dworkin also imposes her views of what constitutes permissible sexual behavior. Since heterosexual intercourse itself is anathema to Dworkin, scenarios involving penetration, in this case "by objects or animals," are outlawed. Dworkin sees almost any object used in a pornographic picture as phallic; in absence of an actual object, she surmises that the camera substitutes for the penis by invading the woman's personal space. By declaring that women should not desire penetration, even by objects or animals, she is closing off a legitimate avenue of sexual expression to women as well as to men. Whether such a desire is "normal" or "healthy" should not be a matter of legal debate, unless of course the woman is forced or harm to the animal is involved. Note, however, that Dworkin does not stipulate that the act must be forceful, or even that someone other than the woman herself must perform the penetration; it is the act itself that she finds distasteful.
The model ordinance lists the following as "unlawful practices": coercion into performing for pornography, trafficking in pornography, forcing pornography on a person, and assault or physical attack directly caused by specific pornography.49 The first of these violations, coercion, is probably the most useful and defensible section of the ordinance, for it addresses a specific harm to a specific party. Anyone who is forced to perform for pornography against her will should have the right to sue "to eliminate the product(s) of the performance(s) from the public view."50
Proof of coercion may be difficult, however, so the ordinance lists a number of conditions which would not negate a finding of coercion. Most of the conditions listed are reasonable, with one notable exception: condition (xi), "that the person signed a contract, or made statements affirming a willingness to cooperate in the production of pornography."51 There is legal precedent for not enforcing an unconscionable contract,52 but it is not clear that such a negation would be automatically appropriate under these circumstances. Refusing to honor a contract signed by a consenting adult denies adult women their free will.
The remaining unlawful practices listed are more problematic than the coercion provision. The trafficking provision requires a determination that all production, sale, exhibition, and distribution of pornography must be banned in order to protect women. The practice of "forcing pornography on a person" is not well-defined; it is not clear if this means "force to read," "prominently display," or some other practice. The final unlawful practice, assault caused directly by specific pornography, is extremely difficult to prove, and requires the assumption that pornographic materials can directly provoke physical violence.
The cities of Minneapolis and Indianapolis each used different adaptations of the model ordinance. The original version of the Minneapolis ordinance mirrored the model ordinance in its major provisions. The law was designed to amend Title 7, Chapters 139 and 141 of the Minneapolis Code of Ordinances Relating to Civil Rights.53 A complainant alleging a violation of the ordinance could bring a civil action directly in court.54
This original version was passed by the Minneapolis City Council in December, 1983, but vetoed by the mayor a week later.55 MacKinnon and Dworkin then revised the ordinance, changing the trafficking provision to exempt "isolated passages" from trafficking violations and emphasizing violent depictions within their definition of pornography (though not limiting the definition to such depictions).56 The city council passed this modified version in July, 1984, but the mayor again vetoed the ordinance, and the council failed to override the veto.57
The Indianapolis version further modified the model ordinance. This ordinance amended Chapter 16 of the Code of Indianapolis and Marion County, Indiana, which concerned human relations and equal opportunity. The Indianapolis legislation eliminated many of the more vague terms in the model ordinance, including the presentations of women as "reduced to" body parts and as "whores by nature." Individuals alleging violations could file complaints with the Office of Equal Opportunity.58
The Indianapolis city-county council passed the ordinance, with minor amendments, in April, 1984, and it was signed by the mayor in May. A group headed by the American Booksellers Association and the Indiana Civil Liberties Union immediately filed a lawsuit challenging the ordinance in the U.S. District Court for the Southern District of Indiana.59 Despite last-minute modifications, including the elimination of isolated passages from trafficking actions,60 the District Court struck down the ordinance in July, 1984.61 The city appealed to the U.S. Court of Appeals for the Seventh Circuit, which affirmed the lower court's decision in August, 1985.62 The Supreme Court refused to hear the case, in effect affirming the appellate decision.63
The Constitutionality of the Ordinance
The rejection of the MacKinnon/Dworkin ordinance in the federal courts
can be explained through an examination of the failure of the ordinance
to conform to First Amendment standards. This analysis will reveal
that the ordinance does not fit under any of the currently unprotected
areas of speech: fighting words, obscenity, libel, or child
pornography. However, MacKinnon and Dworkin argue that their
legislation goes beyond the scope of the First Amendment because it
addresses action rather than speech.
The distinction between speech and action for legal purposes has engendered much debate. The courts have generally separated verbal expression, or "pure speech," from verbal expression plus conduct, sometimes known as "speech plus." The "plus" could involve such actions as picketing or demonstrating.64 Nonverbal communication, including symbolic expression such as burning a draft card, does not receive the same degree of First Amendment protection as verbal expression. As one freedom of speech scholar puts it, "the more 'plus' to the symbolic expression, the less protection the Constitution provides."65
MacKinnon and Dworkin emphasize that their proposed law abridges action, not speech. They consider pornography to be nothing more than the action of trafficking in women's flesh. However, pornography is not a single act, but a series of processes, each of which may be more "speech"-related or "action"-related. This series includes production, distribution, sales, and consumption. Although MacKinnon and Dworkin prohibit all of these processes in their antipornography ordinance, their greatest concern seems to be with the final step: consumption. Contrary to their stated position, the viewing of pornography is more related to "speech" than "action," because merely looking at photographs or words is a passive activity. Focusing on the production of pornography would more logically address pornography as an action.
MacKinnon and Dworkin focus on the consumption of pornography because they believe that is where the "action" is focused: men read pornography and then become violent, abusive, or merely insensitive to women. Insensitivity might be classified as "action" because some allege that it is manifested in the active denial of political speech to women. However, classifying all speech that produces results, negative or otherwise, as "action" erodes the special protection given to verbal expression.
Whereas insensitivity to women in itself does not appear to be "speech plus," violence and abusive behavior toward women are undeniably actions. Nevertheless, in order to deny constitutional protection to pornography on this account, one must prove a valid connection between pornography and aggression. More generally, one must first determine whether these words and pictures themselves can provoke abusive responses.
Supreme Court precedent has established that one category of speech, "fighting words," can provoke anger. In Chaplinsky v. New Hampshire,66 the Court declared that "fighting" words "by their very utterance (1) inflict injury or (2) tend to incite an immediate breach of the peace... such utterances are no essential part of any exposition of ideas," and may therefore be abridged. The first part of this definition was eventually discarded by the Court.67
The concept of words inciting violence by their very utterance is dubious because it fails to take the audience into account. This doctrine assumes that certain expressions delivered in certain ways (such as profanity directed at a police officer, in Chaplinsky) are directly responsible for provoking a violent reaction, regardless of whether the particular audience is predisposed to such a reaction or not.
Even if pornography could provoke violence, this material could not be classified as "fighting words" because it does not "tend to incite an immediate breach of the peace [my italics]." "Fighting words" allegedly cause the hearer to lash out instantly, whereas readers of pornography more likely digest the material over an extended period of time before attempting to act out their violent fantasies. Also, hearers of fighting words lash out at the speaker of these words, whereas readers of pornography do not, and cannot, directly attack the writers of or performers in that material. Therefore, pornography cannot be abridged through the "fighting words" exception to constitutionally protected speech.
Obscenity is another unprotected category of speech. However, MacKinnon and Dworkin claim that their needs cannot be addressed under existing obscenity law, and they are correct. Their antipornography ordinance does not pass the three-step Miller test for determining obscenity. The first step, appeal to the prurient interest, is easily met. However, the second requirement, depiction or description of sexual conduct in a patently offensive way, may or may not be met depending on what one considers "patently offensive," for under the MacKinnon/Dworkin ordinance much erotic material that would be nonoffensive by contemporary community standards may nevertheless fall under the ordinance because it shows women in positions of submission. The third requirement, the SLAPS test of serious social value, is entirely absent from the ordinance. Therefore, the antipornography ordinance cannot be legally justified on the basis of existing obscenity law.
A third category of unprotected speech is libel. Because the MacKinnon/Dworkin antipornography ordinance focuses on the character defamation of an entire gender, it resembles a group libel action. Group libel statutes punish derogatory speech about groups that share common characteristics such as ethnicity or religion. However, the constitutionality of such statutes is uncertain.
In the 1952 Supreme Court decision Beauharnais v. Illinois,68 the Court upheld an Illinois law which prohibited defamation "of a class of citizens, of any race, color, creed or religion."69 This statute did not name gender as a class. Beauharnais is the only Supreme Court case concerning a group libel statute, and its constitutionality is now doubtful because the Court gave certain types of defamation constitutional protection in the 1964 case New York Times v. Sullivan.70 While Beauharnais has never been explicitly overruled, many legal scholars do not consider it to be valid law.71
Even if group libel statutes were unquestionably constitutional, the MacKinnon/Dworkin ordinance would not qualify as such a statute because it fails to define a class. While the ordinance claims that pornography "differentially harms women," it allows any person, regardless of gender, to bring civil action, stating that "Any man, child, or transsexual who alleges injury by pornography in the way women are injured by it also has a claim." The use of men, children, or transsexuals "in the place of women" also constitutes pornography under this ordinance.72
Dworkin would defend these provisions by claiming that male performers shown in postures of sexual submission are just substitutes for women; harm is still done because it is implied that the man has a female nature and should be treated accordingly. In her book Pornography: Men Possessing Women, Dworkin describes and analyzes male homosexual pornographic literature, showing that the "feminine" men in these stories are abused much in the same way as women are in heterosexual literature. In this way, pornography defames those men who act or appear more "feminine" than the norm.
Nevertheless, including men in the ordinance in this way excludes it from the category of group libel statutes. A "class of citizens" cannot include the entire human race, and forming a "class" consisting of women and "feminine" men would be unreasonable - unless, perhaps, these men were identified as exclusively homosexuals. Dworkin would not likely take this option, however, for in her view pornography does not harm all homosexual men, and could also harm men who were merely feminine but not homosexual. It is surprising that there is any concession to men in an ordinance premised on differential harm to women, but this concession, rather than making acceptance of the ordinance more probable, actually damages its legal foundation.
As stated previously, the ordinance is also untenable under the final category of unprotected speech, child pornography. The District Court decision that invalidated the Indianapolis ordinance states that "adult women as a group do not, as a matter of public policy or applicable law, stand in need of the same type of protection which has long been afforded children."73 The antipornography ordinance cannot be supported on First Amendment grounds without carving out an entirely new exception to protected speech.
The ordinance also fails to conform to Fifth Amendment due process requirements. Many words and phrases in the ordinance, even in the revised Indianapolis version, are unconstitutionally vague. The District Court decision states that central terms such as "the subordination of women" are not sufficiently defined to give persons "of ordinary intelligence a reasonable opportunity to know what is prohibited, so that (they may act accordingly)."74 The terms in the ordinance therefore violate the Due Process Clause of the Fifth Amendment.75
Certain provisions of the ordinance also violate due process requirements by failing to provide adequate procedural safeguards to protect against the censorship of protected expression. These provisions allow prior restraint of materials, which is a practice forbidden upon by the Supreme Court except under narrowly defined circumstances. Procedural safeguards for a system of prior restraint mandate (1) that the burden of initiating judicial proceedings proving the material is unprotected is on the censor; (2) that the prior restraint must be for a specified brief period of time; and (3) that prompt final judicial determination must be insured.76
The provisions for coercion and for forcing pornography on a person do not meet these requirements. The ordinance places the burden on the respondent to initiate judicial proceedings if the material is found unprotected. The prior restraint extends until the commencement of judicial review, not just for a specified brief period. Finally, there are no provisions for "prompt" judicial determination of the censorship board's decision.77 According to one legal scholar, "The net effect of the administrative procedures required by the Indianapolis ordinance is to delay the consideration of challenged material until it is no longer current or saleable."78 Because these provisions violate due process requirements, the entire ordinance is unconstitutional.
The Necessity of Protecting Women
Since the MacKinnon/Dworkin antipornography ordinance is
unconstitutional under existing law, the only option for saving the
legislation is to show a state interest of sufficient urgency to merit
carving out a new exception to protected speech. To determine the
necessity for such a declaration, one must assess the impact of
pornography on women in American society. A cornerstone of MacKinnon's
argument is that women cannot realize the extent of this impact because
they are deluded by false consciousness.
MacKinnon claims that women are imprisoned by a false consciousness which causes them to unwittingly act against their own self-interests. Men provide the opiate of false consciousness to insure that women do not challenge their inferior status. Men convince women that their inferiority is their natural or biological destiny79 and enforce this viewpoint through male-centered epistemology so that women are unaware that there is any alternative way of thinking about gender in society.
According to MacKinnon, epistemology is a key point of separation between traditional and feminist jurisprudence. The male-centered scientific view of reality devalues viewpoints from within a movement as biased and unreliable.80 One must stand outside of a problem or issue to objectively evaluate it; a sociologist's study of urban poverty is more intellectually respected than a spontaneous soapbox oration of a participant in a demonstration against poor living conditions in the ghetto.
In contrast, feminist consciousness-raising activities value the voice from the ghetto over the pen of the academician, holding the experiences of the former to constitute true reality. "Women need not stand outside experience to validly comprehend it," MacKinnon states.81 "Mind and world, as a matter of social reality, are taken as interpenetrated"; knowledge is a response to the direct experience of living in reality.82 Objective statistics alone are not enough to convince women that they are oppressed; this information only shows that the oppression exists and should be accepted as truth. Male-centered ideology distorts the female perception of self to the point that she may feel that women are not "real people" and thus have no claim to equality.83 Women must have a legitimizing ideology, inherent in MacKinnon's experiential epistemology, to realize and overcome obstacles to gender equality.84
This ideology entails a group-based approach to reality; the experience of women as a whole, rather than as individuals, is definitive. MacKinnon claims that "since a woman's problems are not hers individually but those of women as a whole, they cannot be addressed except as a whole."85 No woman is free from male superiority, no matter what she thinks her status may be.
This assertion that an individual woman's problems are automatically representative of the entire group of women is dangerous, for it denies female autonomy and individuality by claiming that a woman's unique situation can only be approached by recourse to standard condemnation of male brutality. Every incident, no matter how insignificant in the mind of the victim, is treated as further proof of the total subordination of women.
This approach also helps to explain why MacKinnon seeks to eliminate pornography; if some women dislike it, all women must dislike it, since each woman's problem is every woman's problem. Besides, MacKinnon states, "cognitive judgments need not be universally agreed on to be true...[feminist jurisprudence] redefines validity as nonuniversal but nevertheless correct."86 Therefore, the dissenters' voices are unimportant in this debate. The true irony of this approach is that MacKinnon is closing herself off to dissenting viewpoints within the feminist movement, favoring her own academic analysis over the undisciplined voices of experience that she claims to represent. The umbrella theory of "false consciousness" neatly dismisses their complaints as ignorant and unrepresentative of true reality.
Many women, including some feminists, object to MacKinnon and Dworkin's portrayal of women as powerless victims of male cruelty. Through this depiction, the dissenters argue, MacKinnon and Dworkin objectify women as much as they claim the pornographers do. Some feminist objectors formed the Feminist Anti-Censorship Task Force (F.A.C.T.) in response to the proposed antipornography ordinance. They decry the oversimplification of complicated issues of gender equality. "All are collapsed into a false unity, the brotherhood of the oppressors, the sisterhood of the victims," states Ann Snitow, a feminist activist, writer, and teacher of literature.87
The women in F.A.C.T. published a collection of essays heavily illustrated with sexually explicit photographs in an attempt to show that women can legitimately enjoy pornography. Pat Califia, a lesbian feminist who has written widely on sexual politics, rejects the argument that women who enjoy pornography are brainwashed by patriarchy, pointing out that "women are socialized not to use erotic materials."88 While this argument is compelling, MacKinnon and Dworkin might counter it by arguing that lovers and husbands coerce their partners into viewing pornography and performing like the models, thus binding the couple's sexual gratification to the pornography.
While women may or may not have the free choice of whether or not to view pornography, female pornographic models and performers face a different situation. Many anecdotes relate horror stories of the mistreatment of performers in the industry. The most notorious case is that of Linda Marchiano, otherwise known as Linda Lovelace, star of the porn movie Deep Throat. She claims that she was forced, often at gunpoint, to perform in pornographic films. Speaking of her captor, Charles Traynor, she says, "I literally became a prisoner. I was not allowed out of his sight, not even to go to the bathroom." She laments that "Virtually every time someone watches [Deep Throat] they are watching me being raped."89
Testimony from some porn performers is less extreme but also critical of the industry, but other performers defend their occupations. "Blue Sky," a stripper in a live nude/sex club, says that "Most girls after they leave the job go home... and have no sexual intercourse at all. That's why they get to hate men."90 However, Nina Hartley (a pseudonym), an up-and-coming porn star, states that "the horror stories are pretty much unfounded. I haven't heard any horror stories about women getting into the business by force."91 Hartley claims that she enjoys her work.
Only fragmentary anecdotal testimony supports the assertion that female porn performers are systematically abused.92 Aggrieved individuals should be able to seek legal relief if they are coerced into performing against their will. However, not enough evidence exists to justify banning the production and distribution of all pornography based on the unfortunate plights of an unspecified number of women in the industry.
Pornography and Misogyny: Evidence from the Social Sciences
While MacKinnon and Dworkin express considerable concern for the
well-being of female porn performers, their main argument is that the
consumption of pornography causes men to devalue women. Over the last
twenty years, social scientists have investigated the influence of
pornography on male attitudes and behavior. Psychological and
sociological studies have assessed the relationships between
pornography and misogyny, violence, rape, and gender inequality. These
studies suffer from many limitations, including the artificiality of
the laboratory setting and the questionable scientific value of
correlation studies. These handicaps are acknowledged for the most
part by the researchers, but antipornography activists nevertheless
treat with great deference those experimental results which support
MacKinnon and Dworkin, along with other feminists, have argued that pornography desensitizes men to rape and violence against women, and promotes the acceptance of "rape myths," which suggest that women actually enjoy being raped. Psychological studies corroborate this theory to a certain extent. Several experiments show that subjects exposed to films portraying aggressive sexuality as having favorable consequences (i.e, the female is aroused by the violence) are more accepting of rape myths and of violence against women.93 In another study, both male and female subjects recommended shorter prison terms for rapists following massive exposure to pornography.94
Social scientist Neil Malamuth, who has conducted many experiments in this area, concludes that the overall pattern of experiments "strongly supports that the mass media can contribute to a cultural climate that is more accepting of violence against women."95 Note, however, that acknowledging that pornography may contribute to callousness toward women does not mean that it is the sole or even primary cause of such bigotry.
Laboratory experiments of the influence of pornography on behavior indicate that violent pornography may provoke aggressive behavior, but nonviolent pornography does not produce a similar effect. These experiments often use a measurement called the Buss paradigm, in which the male subject is exposed to a stimulus and then angered by a female confederate. The subject is then given the opportunity to administer an electric shock to the confederate. The degree of the shock (which does not actually harm the confederate) is then measured. This type of experiment has obvious limitations because the situation is highly contrived.
Laboratory research indicates that under certain conditions exposure to nonviolent pornography can increase aggression toward women. However, in these studies the male subjects were unlikely to demonstrate aggression against the female confederates unless their inhibitions were first lowered.96 Exposure to violent pornography did increase aggressive responses without the need for lowering aggressive inhibitions. However, social scientist Edward Donnerstein notes that "it is the aggressive content of pornography that is the main contributor to violence against women. In fact, when we remove the sexual content from such films and just leave the aggression aspect, we find a similar pattern of aggression and asocial attitudes."97
In contrast to these results, studies of the effects of massive exposure to pornography show a sharp decrease in the subjects' aggressive tendencies.98 This phenomenon occurred because the excitement experienced upon viewing the material diminished after frequent and massive exposure. This decrease in excitement was not the result of a "saturation effect" that left the subjects bored with pornography; in fact, with massive exposure their acceptance and enjoyment of the material increased.99
Because of this increased acceptance, the decrease in aggressive tendencies should not be equated with the "safety valve" that many pornography supporters claim the material provides. Since massive exposure may also lead to trivialization of rape, pornography readers may still harbor callous attitudes about sexual violence even if they do not have a greater tendency to commit the violence themselves. These attitudes could arguably be just as damaging as the actual violence, if they translate into less sympathy for rape victims and shorter and more infrequent sentences for sexual offenders.
Prudence would seem to dictate the inclusion of the attitudes and histories of actual rapists in studies concerning the link between pornography and sexual violence. However, such a task is not readily accomplished because the rapists who actually are caught probably do not form a representative sample of the rapist population as a whole, since the percentage of rapes which are reported and convicted is very small.100 Attempts to assess patterns of pornography consumption of convicted sexual offenders have been attempted, but have had highly conflicting conclusions.101
Another type of analysis, the correlation study, shows associations between variables but does not prove that one the increase in one variable, for example, causes the decrease in another. Such studies have investigated the relationships between rape rates, gender equality, and the circulation of adult magazines. Few papers have been written on this subject, and all seem to focus on pornographic magazines rather than other genres, such as films, presumably because statistics on magazine circulation - at least of the most popular titles - are easier to obtain.
Two studies found a high correlation between the circulation of the top-selling adult magazines and rape rates in individual states.102 This relationship remained even when controlling for other variables related to rape and for common third factors such as the youth of both rapists and sex magazine readers.103 While these findings do not show that pornography itself causes rape, one researcher theorizes that "The fact that the SMCX [Sex Magazine Circulation Index] is strongly and consistently correlated with rape supports the theory that pornography endorses attitudes that increase the likelihood of rape."104
One of these correlation studies also measured gender equality by means of a Status of Women Index, which combines 22 indicators of sexual equality, covering economic, educational, political, and legal data. The indicators used are arbitrary because of the infeasibility of condensing all aspects of female social life to a single statistic. This study shows that the incidence of rape is actually higher in states in which the status of women is higher.105 This phenomenon could also exist because women in states with higher gender equality may be more likely to report rape.106 Another study by the same author using a Gender Equality Index shows that gender equality is actually higher in states with higher circulation rates of pornography.107 Combining the findings of these studies, one sees that high rates of gender equality, pornography, and rape may all coexist in one locality.
From these studies one could support the feminist position that pornography fosters rape, but not the position that pornography deprives women of equal participation in political life. One might also argue that higher pornography readership is indicative of liberal attitudes which promote greater acceptance of women. The results of such analyses are not very useful, however, due to the inconclusiveness of correlational data and the arbitrary selection of variables for inclusion in a gender equality index.
Judging from the mixed results and often questionable validity of these studies, there is not a firm psychological or sociological basis for the claim that pornography promotes insensitivity and violence. There are many other societal factors that influence attitudes and behavior, and pornography cannot legitimately be singled out for censorship solely based on support for the possibility that it may contribute to a climate of sexual hostility.
With their innovative antipornography ordinance, MacKinnon and Dworkin
added an important new voice to the centuries-old debate over the legal
status of sexually explicit material. Their concerns about the
statement pornography makes about the place of women in society are
legitimate and have engendered much fruitful debate. Nevertheless,
their attempt to suppress all pornography based on these concerns
constitutes a dangerous encroachment on free speech. Under the
MacKinnon/Dworkin model ordinance, the portrayal of anything short of
an undeniably mutual, non-exploitative relationship, assuming that such
a situation were feasible and could be objectively identified, is
suspect. The ordinance essentially states that certain depictions of
sexuality are permissible and others are not, which is viewpoint
Until a truly compelling state interest can be found to justify creating yet another category of unprotected speech, free expression must be permitted to flourish. Censoring pornography will not give women a stronger voice in society; it will simply further erode everyone's rights to communicate freely. Women and men who disagree with the MacKinnon/Dworkin approach must be permitted to exercise their rights to buy, sell, produce, and/or perform in pornography if they so choose. Censorship will not promote gender equality; only open communication can accomplish that objective.