Women and Pornography

1.

People once defended free speech to protect the rights of firebrands attacking government, or dissenters resisting an established church, or radicals campaigning for unpopular political causes. Free speech was plainly worth fighting for, and it still is in many parts of the world where these rights hardly exist. But in America now, free-speech partisans find themselves defending mainly racists shouting “nigger” or Nazis carrying swastikas or—most often—men looking at pictures of naked women with their legs spread open.

Conservatives have fought to outlaw pornography in the United States for a long time: for decades the Supreme Court has tried, though without much success, to define a limited category of “obscenity” that the Constitution allows to be banned. But the campaign for outlawing all forms of pornography has been given new and fiercer form, in recent years, by the feminist movement. It might seem odd that feminists have devoted such energy to that campaign: other issues, including abortion and the fight for women’s equality in employment and politics, seem so much more important. No doubt mass culture is in various ways an obstacle to sexual equality, but the most popular forms of that culture—the view of women presented in soap operas and commercials, for example—are much greater obstacles to that equality than the dirty films watched by a small minority.

But feminists’ concentration on pornography nevertheless seems easy to explain. Pornographic photographs, films, and videos are the starkest possible expression of the idea feminists most loathe: that women exist principally to provide sexual service to men. Advertisements, soap operas, and popular fiction may actually do more to spread that idea in our culture, but pornography is the rawest, most explicit symbol of it. Like swastikas and burning crosses, pornography is deeply offensive in itself, whether or not it causes any other injustice or harm. It is also particularly vulnerable politically: the religious right supports feminists on this issue, though on few others, so feminists have a much greater chance to win political campaigns for censorship than any of the other campaigns they fight.

And pornography seems vulnerable on principle as well. The conventional explanation of why freedom of speech is important is Mill’s theory that truth is most likely to emerge from a “marketplace” of ideas freely exchanged and debated. But most pornography makes no contribution at all to political or intellectual debate: it is preposterous to think that we are more likely to reach truth about anything at all because pornographic videos are available. So liberals defending a right to pornography find themselves triply on the defensive: their view is politically weak, deeply offensive to many women, and intellectually doubtful. Why, then, should we defend pornography? Why should we care if people can no longer watch films of people copulating for the camera, or of women being whipped and enjoying it? What would we lose, except a repellent industry?

Professor Catherine MacKinnon’s new book of three short essays, Only Words, offers a sharp answer to the last of these questions: society would lose nothing if all pornography were banned, she says, except that women would lose their chains. MacKinnon is the most prominent of the feminists against pornography. She believes that men, want to subordinate women, to turn them into sexual devices, and that pornography is the weapon they use to achieve that result. In a series of highly charged articles and speeches, she has tried to talk or shock other women into that view. In 1986, she wrote that

Pornography constructs what a woman is as what men want from sex. This is what pornography means…. It institutionalizes the sexuality of male supremacy, fusing the eroticization of dominance and submission with the social construction of male and female…. Pornography is a harm of male supremacy made difficult to see because of its pervasiveness, potency, and principally, because of its success in making the world a pornographic place.¹

Only Words is full of language apparently intended to shock. It refers repeatedly to “penises slamming into vaginas,” offers page after page of horrifying descriptions of women being whipped, tortured, and raped, and begins with this startling passage:

You grow up with your father holding you down and covering your mouth so that another man can make a horrible, searing pain between your legs. When you are older, your husband ties you to the bed and drips hot wax on your nipples and brings in other men to watch and makes you smile through it. Your doctor will not give you drugs he has addicted you to unless you suck his penis.

The book offers arguments as well as images, however, and these are presented as a kind of appeal, to the general public, from a judicial decision MacKinnon lost. In 1983, she and a feminist colleague, Andrea Dworkin, drafted an ordinance that outlawed or attached civil penalties to all pornography, defined as the “graphic sexually explicit subordination of women through pictures and/or words” that meet one or more of a series of tests (some of which are impossibly vague) including: “women are presented dehumanized as sexual object, things, or commodities”; or “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”; or “in positions of sexual submission, servility, or display”; or “women’s body parts—including but not limited to vaginas, breasts, or buttocks—are exhibited such that women are reduced to those parts.”

In 1984, largely through their efforts, a similar ordinance was adopted by the Indianapolis legislature. The ordinance included no exception for literary or artistic value, and it could plausibly be interpreted to outlaw not only classic pornography like John Cleland’s Memoirs of a Woman of Pleasure, but a great deal else, including, for example, D.H. Lawrence’s novels and Titian’s Danae. In 1985, the Seventh Circuit Court of Appeals held the ordinance unconstitutional on the grounds that it violated the First Amendment’s guarantees of free speech and press, and in 1986, the Supreme Court declined to overrule the Seventh Circuit’s decision.²

Only Words offers several arguments in favor of the Indianapolis ordinance and against the Seventh Circuit’s ruling, though some of these are run together and must be disentangled to make sense. Some of MacKinnon’s arguments are old ones that I have already considered in these pages.³ But she devotes most of the book to a different and and striking claim. She argues that even if the publication of literature degrading to women is protected by the First Amendment, as the Seventh Circuit declared, such material offends another, competing constitutional value: the ideal of equality embedded in the equal protection clause of the Fourteenth Amendment, which declares that no state may deprive any person of the equal protection of the laws. If so, she says, then the courts must balance the two constitutional values, and since pornography contributes nothing of any importance to political debate, they should resolve the conflict in favor of equality and censorship.

Unlike MacKinnon’s other arguments, this claim has application far beyond the issue of pornography. If her analysis is right, national and state governments have much broader constitutional powers than most lawyers think to prohibit or censor any “politically incorrect” expression that might reasonably be thought to sustain or exacerbate the unequal positions of women or of racial, ethnic, or other minorities. I shall therefore concentrate on this new argument, but I shall first comment briefly on MacKinnon’s more conventional points.

2.

In Only Words, she repeats the now familiar claim that pornography significantly increases the number of rapes and other sexual crimes. If that claim could be shown to be even probable, through reliable research, it would provide a very strong though not necessarily decisive argument for censorship. But in spite of MacKinnon’s fervent declarations, no reputable study has concluded that pornography is a significant cause of sexual crime: many of them conclude, on the contrary, that the causes of violent personality lie mainly in childhood, before exposure to pornography can have had any effect, and that desire for pornography is a symptom rather than a cause of deviance.⁴ MacKinnon tries to refute these studies, and it is important to see how weak her arguments are. One of them, though repeated several times, is only a metaphysical sleight-of-hand. She several times insists that pornography is not “only words” because it is a “reality.” She says that because it is used to stimulate a sexual act—masturbation—it is sex, which seems to suggest that a film or description of rape is itself a kind of rape. But obviously that does not help to show that pornography causes rape in the criminal sense, and it is only the latter claim that can count as a reason for outlawing it.

Sometimes MacKinnon relies on breathtaking hyperbole disguised as common sense. “Sooner or later,” she declares, “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 does make them want to; when they believe they can, when they feel they can get away, they do.” (Confronted with the fact that many men who read pornography commit no rapes, she suggests that their rapes are unreported.)⁵ Elsewhere she appeals to doubtful and unexamined correlations: In a recent article, for example, she declares that “pornography saturated Yugoslavia before the war,” and suggests that pornography is therefore responsible for the horrifying and widely reported rapes of Croatian and Muslim women by Serbian soldiers.⁶ But, as George Kennan has noted in these pages, rape was also “ubiquitous” in the Balkan wars of 1913, well before any “saturation” by pornography had begun.⁷

Her main arguments, however, are anecdotal: she cites examples of rapists and murderers who report themselves as having been consumers of pornography, like Thomas Shiro, who was sentenced to death in 1981 in Indiana for raping and then killing a young woman (and copulating with her corpse) and who pleaded that he was not responsible because he was a lifelong pornography reader. Such evidence is plainly unreliable, however, not just because it is so often selfserving, but because, as the feminists Deborah Cameron and Elizabeth Fraser have pointed out, criminals are likely to take their views about their own motives from the folklore of their community, whether it is sound or not, rather than from serious analysis of their motives. (Cameron and Fraser, who favor banning pornography on other grounds, concede that “arguments that pornography ’causes’ violent acts are, indeed, inadequate.”)⁸

MacKinnon’s second argument for censorship is a radically different one: that pornography should be banned because it “silences” women by making it more difficult for them to speak and less likely that others will understand what they say. Because of pornography, she says,

You learn that language does not belong to you…. You learn that speech is not what you say but what your abusers do to you…. You develop a self who is ingratiating and obsequious and imitative and aggressively passive and silent.⁹

In an earlier work she put the point even more graphically:

Who listens to a woman with a penis in her mouth?…Anyone who cannot walk down the street or even lie down in her own bed without keeping her eyes cast down and her body clenched against assault is unlikely to have much to say about the issues of the day….Any system of freedom of expression that does not address a problem where the free speech of men silences the free speech of women…is not serious about securing freedom of expression.”¹⁰

On this view, which has been argued more elaborately by others,¹¹ it is women not pornographers who need First Amendment protection, because pornography humiliates or frightens them into silence and conditions men to misunderstand what they say. (It conditions them to think, for example—as some stupid judges have instructed juries in rape trials—that when a woman says no she sometimes means yes.) Because this argument cites the First Amendment as a reason for banning, not for protecting, pornography, it has the appealf paradox. But it is premised on an unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say.

These are obviously not rights that any society can recognize or enforce. Creationists, flat-earthers, and bigots, for example, are ridiculed in many parts of America now; that ridicule undoubtedly dampens the enthusiasm many of them have for speaking out and limits the attention others pay to what they say. Many political and constitutional theorists, it is true, insist that if freedom of speech is to have any value, it must include some right to the opportunity to speak: they say that a society in which only the rich enjoy access to newspapers, television, or other public media does not accord a genuine right to free speech. But it goes far beyond that to insist that freedom of speech includes not only opportunity to speak to the public but a guarantee of a sympathetic or even competent understanding of what one says.

MacKinnon’s third argument centers on the production rather than the distribution or consumption of pornography: she argues that women who act in pornographic films suffer actual, direct sexual subordination, compounded by the fact that their degradation is recorded for posterity. She points out that some women are coerced or tricked into making pornographic films, and mentions the notorious “snuff” films which are said to record the actual murder of women. But of course all these crimes can be prosecuted without banning pornography, and, as MacKinnon herself concedes, it would be wrong to “rely on the fact that some pornography is made through coercion as a legal basis for restricting all of it.” Laws banning child pornography are indeed justified on the grounds that children may be damaged by appearing in pornographic films. But these laws, like many others that treat children differently, suppose that they are not competent to understand and consent to acts that may well be against their present and future interests.

It would plainly be a mistake to assume that women (or men) who appear in pornographic films do so unwillingly. Our economic system does, it is true, make it difficult for many women to find satisfactory, fulfilling employment, and may well encourage some of them to accept roles in pornographic films they would otherwise reject. The system, as MacKinnon grimly notes, works to the benefit of the pornographers. But it also works to the benefit of many other employers—fast-food chains, for example—who are able to employ women at low wages. There is great economic injustice in America, but that is no reason for depriving poor women of an economic opportunity some of them may prefer to the available alternatives.

I should mention a fourth consideration that MacKinnon puts forward, though it is difficult to find an argument in it. She says that much pornography is not just speech—it is not “only words”—because it produces erections in men and provides them with masturbatory fantasies. (She warns her readers never to “underestimate the power of an erection.”) Her view of the psychology of sexual arousal is mechanical—she thinks men who read pornography “are sexually habituated to its kick, a process that is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” In any case, she thinks that pornography’s physiological power deprives it of First Amendment protection: “An orgasm is not an argument,” she says, “and cannot be argued with. Compared with a thought, it raises far less difficult speech issues, if it raises any at all.” But that seems a plain non sequitur: a piece of music or a work of art or poetry does not lose whatever protection the First Amendment affords it when some people find it sexually arousing, even if that effect does not depend on its argumentative or aesthetic merits, or whether it has any such merits at all.

3.

The continued popularity of bad arguments such as those in Only Words testifies to the strength of the real but hidden reason why so many people despise pornography and want to ban it. The sado-masochistic genre of pornography, particularly, is so comprehensibly degrading that we are appalled and shamed by its existence. Contrary to MacKinnon’s view, almost all men, I think, are as disgusted by it as almost all women. Because those who want to forbid pornography know that offensiveness alone does not justify censorship, however, they disguise their repulsion as concern that pornography will cause rape, or silence women, or harm the women who make it.

In the most interesting parts of Only Words, MacKinnon offers a new argument that is also designed to transcend mere repulsion. She says that the way in which pornography is offensive—that it portrays women as submissive victims who enjoy torture and mutilation—contributes to the unequal opportunities of women in American society, and therefore contradicts the values meant to be protected by the equal protection clause. She concedes, for the sake of this argument, that in spite of its minimal contribution to intellectual or political debate, pornography is protected under the First Amendment. But that First Amendment protection must be balanced, she says, against the Fourteenth Amendment’s requirement that people be treated equally. “The law of equality and the law of freedom of speech are on a collision course in this country,” she says, and she argues that the balance, which has swung too far toward liberty, must now be redressed.

The censorship of pornography, she says, should be regarded as like other kinds of government action designed to create genuine equality of opportunity. It is now accepted by almost everyone that government may properly prohibit discrimination against blacks and women in employment and education, for example. But such discrimination may take the form, not merely of refusing them jobs or university places, but of subjecting those who do manage to find jobs or places to an environment of insult and prejudice that makes work or education less attractive or even impossible. Government prohibits racial or sexual harassment at work—it punishes employers who subject blacks to racial insult or women to sexual pressures, in spite of the fact that these objectionable practices are carried out through speech—and many universities have adopted “speech codes” that prohibit racial insults in classrooms or on campus.

Banning or punishing pornography, MacKinnon suggests, should be regarded as a more general remedy of the same kind. If pornography contributes to the general subordination of women by picturing them as sexual or servile objects, as she believes it does, then eliminating pornography can also be defended as serving equality of opportunity even though it restricts liberty.¹² The “egalitarian” argument for censorship is in many ways like the “silencing” argument I described earlier: it supposes not that pornography significantly increases sexual crimes of violence, but that it works more insidiously to damage the standing and power of women within the community. But the “egalitarian” argument is in two ways different and apparently more cogent.

First, it claims not a new and paradoxical conflict within the idea of liberty, as the silencing argument does, but a conflict between liberty and equality, two ideals that many political philosophers think are often in conflict. Second, it is more limited in its scope. The “silencing” argument supposes that everyone—the bigot and the creationist as well the social reformer—has a right to whatever respectful attention on the part of others is necessary to encourage him to speak his mind and to guarantee that he will be correctly understood; and that is absurd. The “egalitarian” argument, on the contrary, supposes only that certain groups—those that are victims of persisting disadvantage in our society—should not be subjected to the kind of insult, harassment, or abuse that has contributed to that disadvantage.

But the “egalitarian” argument is nevertheless much broader and more dangerous in its scope than might first appear. The analogies MacKinnon proposes—to sexual harassment laws and university speech codes—are revealing, because though each of these forms of regulation might be said to serve a general egalitarian purpose, they are usually defended on much more limited and special grounds. Laws against sexual harassment are designed to protect women not from the diffuse effects of whatever derogatory opinions about them are part of the general culture, but from direct sexual taunts and other degrading language in the workplace.¹³ University speech codes are defended on a different ground: they are said to serve an educational purpose by preserving the calm and reflective atmosphere of mutual respect and of appreciation for a diversity of cultures and opinions that is essential for effective teaching and research.

I do not mean that such regulations raise no problems about free speech. They do. Even if university speech codes, for example, are enforced fairly and scrupulously (and in the charged atmosphere of university politics they often are not) they sometimes force teachers and students to compromise or suppress their opinions by erring on the side of safety, and some speech codes may actually be unconstitutional. I mean only that constraints on speech at work and on the campus can be defended without appealing to the frightening principle that considerations of equality require that some people not be free to express their tastes or convictions or preferences anywhere. MacKinnon’s argument for banning pornography from the community as a whole does presuppose this principle, however, and accepting her argument would therefore have devastating consequences.

Government could then forbid the graphic or visceral or emotionally charged expression of any opinion or conviction that might reasonably offend a disadvantaged group. It could outlaw performances of The Merchant of Venice, or films about professional women who neglect their children, or caricatures or parodies of homosexuals in nightclub routines. Courts would have to balance the value of such expression, as a contribution to public debate or learning, against the damage it might cause to the standing or sensibilities of its targets. MacKinnon thinks that pornography is different from other forms of discriminatory or hostile speech. But the argument she makes for banning it would apply to much else. She pointedly declares that freedom of speech is respected too much by Americans and that the Supreme Court was right in 1952 when it sustained a prosecution of anti-Semitic literature—a decision it has since abandoned¹⁴—and wrong in 1978 when it struck down an ordinance banning a Nazi march in Illinois.¹⁵

So if we must make the choice between liberty and equality that MacKinnon envisages—if the two constitutional values really are on a collision course—we should have to choose liberty because the alternative would be the despotism of thought-police.

But is she right that the two values do conflict in this way? Can we escape despotism only by cheating on the equality the Constitution also guarantees? The most fundamental egalitarian command of the Constitution is for equality throughout the political process. We can imagine some compromises of political equality that would plainly aid disadvantaged groups—it would undoubtedly aid blacks and women, for example, if citizens who have repeatedly expressed racist or sexist or bigoted views were denied the vote altogether. That would be unconstitutional, of course; the Constitution demands that everyone be permitted to play an equal part in the formal process of choosing a president, a Congress, and other officials, that no one be excluded on the ground that his opinions or tastes are too offensive or unreasonable or despicable to count.

Elections are not all there is to politics, however. Citizens play a continuing part in politics between elections, because informal public debate and argument influences what responsible officials—and officials anxious for re-election—will do. So the First Amendment contributes a great deal to political equality: it insists that just as no one may be excluded from the vote because his opinions are despicable, so no one may be denied the right to speak or write or broadcast because what he will say is too offensive to be heard.

That amendment serves other goals as well, of course: free speech helps to expose official stupidity and corruption, and it allows vigorous public debate that sometimes generates new ideas and refutes old ones. But the First Amendment’s egalitarian role is independent of these other goals: it forbids censoring cranks or neo-Nazis not because anyone thinks that their contributions will prevent corruption or improve public debate, but just because equality demands that everyone, no matter how eccentric or despicable, have a chance to influence policies as well as elections. Of course it does not follow that government will in the end respect everyone’s opinion equally, or that official decisions will be equally congenial to all groups. Equality demands that everyone’s opinion be given a chance for influence, not that anyone’s opinion will triumph or even be represented in what government eventually does.

The First Amendment’s egalitarian role is not confined, however, to political speech. People’s lives are affected not just by their political environment—not just by what their presidents and legislators and other public officials do—but even more comprehensively by what we might call their moral environment. How others treat me—and my own sense of identity and self-respect—are determined in part by the mix of social conventions, opinions, tastes, convictions, prejudices, life styles, and cultures that flourish in the community in which I live. Liberals are sometimes accused of thinking that what people say or or think in private has no impact on anyone except themselves, and that is plainly wrong. Someone to whom religion is of fundamental importance, for example, will obviously lead a very different and perhaps more satisfying life in a community in which most other people share his convictions than in a dominantly secular society of atheists for whom his beliefs are laughable superstitions. A woman who believes that explicit sexual material degrades her will likely lead a very different, and no doubt more satisfying, life among people who also despise pornography than in a community where others, including other women, think it liberating and fun.

Exactly because the moral environment in which we all live is in good part created by others, however, the question of who shall have the power to help shape that environment, and how, is of fundamental importance, though it is often neglected in political theory. Only one answer is consistent with the ideals of political equality: that no one may be prevented from influencing the shared moral environment, through his own private choices, tastes, opinions, and example, just because these tastes or opinions disgust those who have the power to shut him up or lock him up. Of course, the ways in which anyone may exercise that influence must be limited in order to protect the security and interests of others. People may not try to mold the moral climate by intimidating women with sexual demands or by burning a cross on a black family’s lawn, or by refusing to hire women or blacks at all, or by making their working conditions so humiliating as to be intolerable.

But we cannot count, among the kinds of interests that may be protected in this way, a right not to be insulted or damaged just by the fact that others have hostile or uncongenial tastes, or that they are free to express or indulge them in private. Recognizing that right would mean denying that some people—those whose tastes these are—have any right to participate in forming the moral environment at all. Of course it should go without saying that no one has a right to succeed in influencing others through his own private choices and tastes. Sexists and bigots have no right to live in a community whose ideology or culture is even partially sexist or bigoted: they have no right to any proportional representation for their odious views. In a genuinely egalitarian society, however, those views cannot be locked out, in advance, by criminal or civil law: they must instead be discredited by the disgust, outrage, and ridicule of other people.

MacKinnon’s “egalitarian” argument for censorship is important mainly because it reveals the most important reason for resisting her suggestions, and also because it allows us to answer her charge that liberals who oppose her are crypto-pornographers themselves. She thinks that people who defend the right to pornography are acting out of self-interest, not principle—she says she has been driven to the conclusion that “speech will be defined so that men can have their pornography.” That charge is based on the inadequacy of the conventional explanation, deriving from John Stuart Mill, that pornography must be protected so that truth may emerge. What is actually at stake in the argument about pornography, however, is not society’s chance to discover truth, but its commitment to the very ideal of equality that MacKinnon thinks underrated in the American community. Liberals defend pornography, though most of them despise it, in order to defend a conception of the First Amendment that includes, as at least one of its purposes, protecting equality in the processes through which the moral as well as the political environment is formed. First Amendment liberty is not equality’s enemy, but the other side of equality’s coin.

MacKinnon is right to emphasize the connection between the fight over pornography and the larger, more general and important, argument about the freedom of Americans to say and teach what others think politically incorrect. She and her followers regard freedom of speech and thought as an elitist, inegalitarian ideal that has been of almost no value to women, blacks, and others without power; they say America would be better off if it demoted that ideal as many other nations have. But most of her constituents would be appalled if this denigration of freedom should escape from universities and other communities where their own values about political correctness are now popular and take root in the more general political culture. Local majorities may find homosexual art or feminist theater just as degrading to women as the kind of pornography MacKinnon hates, or radical or separatist black opinion just as inimical to racial justice as crude racist epithets.

That is an old liberal warning—as old as Voltaire—and many people have grown impatient with it. They are willing to take that chance, they say, to advance a program that seems overwhelmingly important now. Their impatience may prove fatal for that program rather than essential to it, however. If we abandon our traditional understanding of equality for a different one that allows a majority to define some people as too corrupt or offensive or radical to join in the informal moral life of the nation, we will have begun a process that ends, as it has in so many other parts of the world, in making equality something to be feared rather than celebrated, a mocking, “correct” euphemism for tyranny.