Rebutting the 'MacDworkinites'
The Legal Times (Aug. 21, 1995)
By Martin Kimel
Some days, a woman sits by the Dupont Circle Metro entrance under a sign reading, "Porn Degrades Women," asking people to sign a petition to Congress. Nadine Strossen would call the woman a "MacDworkinite," a follower of the views of law professor Catharine MacKinnon and writer Andrea Dworkin, two feminists who would like to suppress sexually explicit material that they find sexist -- and have drafted legislation to do so. In the view of MacKinnon and Dworkin, the First Amendment right to free speech and a woman's right to safety and equality are on a collision course, and it is the First Amendment that must yield.
Strossen, president of the American Civil Liberties Union and a law professor, disagrees, and she has written a rebuttal to MacKinnon and Dworkin entitled, Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights. For those who have followed the course of MacKinnon's and Dworkin's attempts to make actionable the publication and distribution of material depicting the "sexually explicit subordination of women in pictures and/or words," there is little in Strossen's First Amendment analysis that will be new. The book's value is that it displays a strong feminist voice that argues convincingly that feminism and free speech are not only compatible, but also mutually reinforcing, and that feminism has much to fear from the "MacDworkin" school of censorship.
DEFINING TERMS
Defining terms is important, and Strossen defines pornography as "sexual expression that is meant to, or does, provoke sexual arousal or desire." She notes that the P-word has taken on such strong, negative connotations that it tends to be used as "an epithet to describe -- and condemn -- whatever sexually oriented expression the person using it dislikes." She quotes an anonymous wit who put it well: "What turns me on is 'erotica' but what turns you on is 'pornography.'
As defined by MacKinnon and Dworkin, Strossen observes, pornography is sexual expression that (allegedly) demeans women. It supposedly does this by encouraging discrimination and violence against women. Furthermore, its mere existence is said to harm women.
Strossen shares the "fears, frustrations and fury" about the problems of violence and discrimination against women. But, she argues, the pro-censorship strategy amounts to slaying the messenger, and would not reduce misogynistic violence. Worse yet, she contends, restricting sexual expression would "undermine women's equality, our status, our dignity and our autonomy."
The author's argument are generally cogent, but the book's confusing organization works against them, making the arguments much more difficult to follow than they should be. Strossen's first major point is that the MacKinnon/Dworkin model anti-pornography law fails to survive scrutiny under the First Amendment doctrine that speech can only be regulated in a content-neutral manner. The model law fails this test because it singles out speech depending on its point of view. It is therefore not surprising that an Indianapolis ordinance that incorporated the MacKinnon/Dworkin definition of pornography was held unconstitutional by the Seventh Circuit U.S. Court of Appeals, with the U.S. Supreme Court summarily affirming.
The principal of not regulating speech based on one's view of whether it is harmful is important, Strossen argues. If sexist, sexually explicit speech may be restricted because it conveys sexist ideas, she asks, then why not similarly restrict nonsexually explicit sexist speech? Feminists should not start down the path of restricting "harmful speech," argues Strossen, for the same conservatives who joined with MacKinnon in passing the Indianapolis ordinance could pass an ordinance restricting speech in favor of, say, homosexual rights, abortion rights, or more broadly, feminism -- on the grounds that such speech harms traditional family values.
LOOKING TO HISTORY
Indeed, several chapters later, Strossen shows us a history in the United States of anti-obscenity laws being turned against birth control advocates like Margaret Sanger. Moreover, after examining the range of feminist works that could fall within the vague terms of the MacKinnon/Dworkin model law (and thus make the works' authors and distributors subject to chilling civil suits for damages), Strossen surveys the real-life impact that a MacKinnon/Dworkin-based law has had in Canada.
In February 1992, in a case named Butler v. Queen, Canada's highest court bought the MacKinnon/Dworkin theory and interpreted the Canadian obscenity laws as proscribing materials that are "degrading" or "dehumanizing" to women. According to Strossen's review of the aftermath of Butler, the Canadian law has been used mainly to seize lesbian, gay and feminist materials. Political minorities, Strossen concludes, should fear Big Sister as much as they do Big Brother.
Not only does the MacKinnon/Dworkin approach lead to harmful results for feminists, according to Strossen, it is also based on attitudes that work against equality between the sexes -- primarily, the notion that sex is inherently degrading to women. MacKinnon, in one of seemingly dozens of similar statements, is quoted as saying that "[The] only major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one can't get anyone to see anything wrong with it."
This view of women as victims, in need of protection from men and sexual expression, Strossen argues, reflects "archaic, infantalizing stereotypes that long have been used to deny women full equality." This theme runs through the MacKinnon/Dworkin model law, which also provides that a woman's decision to pose for a sexual image should be treated as the product of coercion even under circumstances where a man's decision would be treated as voluntary and consensual.
Toward the end of the book, Strossen also dissects the assumption at the heart of the MacKinnon/Dworkin law, to wit: that censorship of pornography would reduce sexism and violence against women. (While this assumption addresses the argument that pornography leads to violence against women, it doesn't address the claim that the existence of pornography itself somehow harms women.)
Strossen cites the lack of convincing evidence that exposure to sexist, violent imagery leads to sexist, violent behavior against women. She then argues that the burden of proving a cause-and-effect relationship must be placed on the would-be censors. After all, she notes, no one has established that MacKinnon's writings do not lead to violence against women, but that is an insufficient reason to censor MacKinnon.
Strossen also makes the excellent point that, even if all sexist pornography were magically removed from the world, sexist or violent imagery would still pervade our mass media and pop culture. Finally, Strossen suggests that driving pornography underground would not necessarily cause a significant decrease in the pornography circulated.
Martin Kimel is an attorney and free-lance writer in Washington, D.C.