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.