Pornography

Pornography is a battlefield in U.S. law. For decades, courts have struggled to find a middle ground between opponents of OBSCENITY and defenders of free speech. This debate began to shift in the 1970s as feminists introduced new theories. Obscenity and free speech were no longer the central issues, these critics argued. Their paramount concern was violence. They claimed a causal link between pornographic depictions of women, and crimes ranging from harassment to rape. Beginning in the 1980s, some feminists proposed legislation that sought to control pornography in new and dramatic ways. They met strong opposition, and none of their legislation survived vetoes or court challenges.

Inspired by the women's liberation movement in the 1960s, many feminists began to decry pornography as sexist. In later years, a sharper critique began to emerge. Some feminists believed that pornography was a deliberate means of subordinating women to men, thereby maintaining inequality. One leading feminist critic, ANDREA DWORKIN, took this theory even further. In books such as Pornography: Men Possessing Women (1979), Dworkin interpreted pornographic publications and films as training guides for committing sexual violence.

Dworkin's writings have divided feminists. Her detractors argue that she stands outside the mainstream of feminism. Her supporters cite high rates of sexual violence as proof that Dworkin is right. Both sides frequently debate this point. The causal link between pornography and violence rests on anecdotal evidence. Dworkin finds this evidence sufficient, and she contends that women are not believed when they report an experience of being sexually assaulted by men who view pornography. While not denying these personal accounts, critics reply that a definite link can never be scientifically established.

One prominent feminist colleague of Dworkin's is CATHARINE A. MACKINNON. An author and professor of law, MacKinnon is regarded as a pioneer in providing legal recourse for victims of SEXUAL HARASSMENT and rape. She and Dworkin created the intellectual framework for viewing pornography in a novel light: not merely as a form of speech but instead as active discrimination and violence against women. Their argument brushed aside traditional FIRST AMENDMENT considerations. If pornography harmed women, they claimed, then it was not deserving of legal protection as speech. This view had its first legal expression in a case they considered bringing to stop showings of the film Deep Throat, whose star, Linda Lovelace, contended that she was raped throughout the making of the film. Ultimately, no suit could be brought because the STATUTE OF LIMITATIONS had expired, but the case served as their first step toward a practical attack on pornography.

MacKinnon and Dworkin tried a legislative solution in Minneapolis in 1983. As coteachers of a course at the University of Minnesota Law School, they were invited to draft a law aimed at keeping adult bookstores out of residential neighborhoods. ZONING ordinances had failed in this end. MacKinnon and Dworkin proposed amending the city's CIVIL RIGHTS ordinance to include a new legal claim: a woman who proved that she had been harmed by pornographic material could sue its makers and distributors.

This groundbreaking approach avoided traditional definitions of obscenity. It defined pornography as the sexually explicit subordination of women in pictures or words. In the language of the proposed ordinance, subordination included images of women who "experience sexual pleasure in being raped" or in being "penetrated by objects or animals." Two provisions outlined the conditions under which a woman could bring suit: a plaintiff would have to prove that a pornographic work had harmed her in a specific way, or that it had harmed women in general. The hearings before the Minneapolis City Council galvanized debate and demonstrations. In one incident, a woman protesting pornography and its degrading aspects toward women, set herself on fire by a downtown news-stand.

The ordinance drew attacks from traditional free speech advocates, including the American Booksellers Association and the AMERICAN CIVIL LIBERTIES UNION (ACLU). Opponents argued that the ordinance was vague, allowing too much subjectivity in deciding what material constituted subordination. Any material, they claimed, could be deemed offensive in this way. One group making this argument called itself the Feminist Anti-Censorship Task Force (FACT). Among FACT's 50 prominent members were the authors BETTY N. FRIEDAN, KATE MILLETT, and Adrienne Rich. They filed a legal brief attacking the ordinance on the ground that it reinforced sexist stereotypes. In a strongly worded rebuttal, MacKinnon denounced the group as being apologists for male supremacists.

The Minneapolis antipornography ordinance twice failed to pass. Mayor Donald M. Fraser vetoed it in December 1983 and in July 1984. But the ordinance served as a model for others and in 1984, MacKinnon and Dworkin met with greater success in Indianapolis. Again, they proposed modifying existing ordinances with amendments that would allow any woman the means to seek an order prohibiting offensive pornography, as well as to seek damages. On April 23 and June 11, 1984, the Indianapolis– Marian County City Council passed General Ordinances 24 and 35, which amended chapter 16 of the Human Relations and Equal Opportunity Code. Indianapolis Mayor William H. Hudnut III signed the ordinances into law.

The law was challenged in American Booksellers Ass'n v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984). In 1985, it was declared unconstitutional (Hudnut, 771 F.2d 323 [7th Cir. 1985]). Judge Frank Easterbrook based his ruling on a longstanding tradition of First Amendment protection for "opinions that the government finds wrong or even hateful." However, he accepted the ordinance's central argument about pornography. He agreed that "depictions of subordination" tend to perpetuate subordination in other areas of life, causing sexual discrimination, harassment, rape, and domestic abuse. The U.S. Supreme Court affirmed Easterbrook's decision in 1986 (Hudnut, 475 U.S. 1001, 106 S. Ct. 1172, 89 L. Ed. 2d 291, aff'd without comment, reh'g denied, 475 U.S. 1132, 106 S. Ct. 1664, 90 L. Ed. 2d 206).

Following the Court's ruling, MacKinnon and Dworkin refined their approach in a proposed 1992 bill for the Massachusetts state legislature titled An Act to Protect the Civil Rights of Women and Children (H. 5194). Sponsored by Representative Barbara Hildt (D-Mass.), the bill focused on individuals who could prove that they were assaulted as a result of pornography. The bill allowed victims to collect damages in civil court from publishers, filmmakers, and distributors. In testimony before the Massachusetts Legislature, MacKinnon argued that pornography enjoyed better legal protection than did women. This time, opposition came from civil rights groups as well as the New York State chapter of the NATIONAL ORGANIZATION FOR WOMEN (NOW). NOW condemned the bill for taking the onus off criminals and placing it instead on publishers. Although considered in committee, the bill was never voted on.

MacKinnon and Dworkin's views on pornography are certainly not shared by all feminists. NADINE STROSSEN, professor of law at New York Law School, has written, lectured, and practiced widely in the areas of CONSTITUTIONAL LAW, civil liberties, and international HUMAN RIGHTS. Since 1991, she has served as president of the ACLU, the first woman to head the nation's largest and oldest civil liberties organization. Strossen believes that CENSORSHIP, and not pornography, is the true enemy of WOMEN'S RIGHTS. For too long, she argues, censorship has been used to repress information relevant to women. Strossen lays out her feminist perspective in Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (1995). By arguing for "procensorship," Strossen asserts, feminists such as Dworkin and Mackinnon are ultimately doing more harm than good since any restriction of free speech is detrimental to all people.