Feminists Against the First Amendment

A critique of a movement that is winning new recruits among politicians and on college campuses—a movement that appeals to the widespread loathing of pornography, that promotes a view of men as lubricious brutes, and that has united authoritarians on the left and the right in an assault on free speech
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Despite efforts to redevelop it, New York's Forty-second Street retains its underground appeal, especially for consumers of pornography. What city officials call "sex-related uses"—triple-X video (formerly book) stores, peep shows, and topless bars—have declined in number since their heyday in the 1970s, and much of the block between Seventh and Eighth avenues is boarded up, a hostage to development. New sex businesses—yuppie topless bars and downscale lap-dancing joints (don't ask) —are prospering elsewhere in Manhattan. But Peepland (MULTI-VIDEO BOOTHS! NUDE DANCING GIRLS!) still reigns, and Show World, a glitzy sex emporium, still anchors the west end of the block, right around the corner from The New York Times.

In the late 1970s I led groups of suburban women on tours through Show World and other Forty-Second Street hot spots, exposing them, in the interests of consciousness-raising, to pornography's various genres: Nazi porn, nurse porn, lesbian porn, bondage porn—none of it terribly imaginative. The women didn't exactly hold hands as they ventured down the street with me, but they did stick close together; traveling en masse, they were not so conspicuous as individuals. With only a little less discomfort than resolve, they dutifully viewed the pornography.

This was in the early days of the feminist anti-porn movement, when legislative strategies against pornography were mere gleams in the eye of the feminist writer Andrea Dworkin, when it seemed possible to raise consciousness about pornography without arousing demands for censorship. That period of innocence did not last long. By 1981 the New Right had mounted a nationwide censorship campaign to purge schools and public libraries of sex education and other secular-humanist forms of "pornography." Sex education was "filth and perversion," Jerry Falwell announced in a fund-raising letter that included, under the label "Adults Only. Sexually Explicit Material," excerpts from a college health text. By the mid-1980s right-wing advocates of traditional family values had co-opted feminist anti-porn protests—or, at least, they'd co-opted feminist rhetoric. The feminist attorney and law professor Catharine MacKinnon characterized pornography as the active subordination of women, and Phyllis Schlafly wrote, "Pornography really should be defined as the degradation of women. Nearly all porn involves the use of women involves subordinate, degrading poses for the sexual, exploitative, and even sadistic and violent pleasures of men." Just like a feminist, Schlafly worried about how pornography might "affect a man who is already prone to violence against women." President Ronald Reagan deplored the link between pornography and violence against women.

Pornography as Sex Discrimination

Of course. while feminists blamed patriarchy for pornography, moral majoritarians blamed feminism and other humanist rebellions. The alliance between feminists and the far right was not ideological but political. In 1984 antiporn legislation devised by Andrea Dworkin and Catharine MacKinnon, defining pornography as a violation of women's civil rights, was introduced in the Indianapolis city council by an anti-ERA activist, passed with the support of the right, and signed into law by the Republican mayor, William Hudnut.

With the introduction of this bill, a new legislative front opened in the war against pornography, alienating civil-libertarian feminists from their more censorious sisters, while appealing to populist concerns about declining moral values. By calling for the censorship of pornography, some radical feminists found their way into the cultural mainstream—and onto the margins of First Amendment law.

The legislation adopted in Indianapolis offered a novel approach to prohibiting pornography which had all the force of a semantic distinction: pornography was not simply speech, Catharine MacKinnon suggested, but active sex discrimination, and was therefore not protected by the First Amendment. (In her 1989 book Toward a Feminist Theory of the State, MacKinnon characterized pornography as "a form of forced sex.") Regarding pornography as action, defining it broadly as any verbal or visual sexually explicit material (violent or not) that subordinates women, presuming that the mere existence of pornography oppresses women, the Indianapolis ordinance gave any woman offended by any arguably pornographic material the right to seek an order prohibiting it, along with damages for the harm it presumably caused. In other words, any woman customer browsing in a bookstore or patrolling one, glancing at a newsstand or a triple-X video store, was a potential plaintiff in a sex-discrimination suit. Given all the literature, films, and videos on the mass market that could be said to subordinate women, this ordinance would have created lots of new business for lawyers—but it did not stand. Within a year of its enactment the Dworkin-MacKinnon law was declared unconstitutional by a federal appeals court, in a decision affirmed by the U.S. Supreme Court.

The feminist anti-porn movement retreated from the legislative arena and passed out of public view in the late 1980s, only to re-emerge with renewed strength on college campuses. College professors following fashions in poststructuralism asserted that legal principles, like those protecting speech, were mere rhetorical power plays: without any objective, universal merit, prevailing legal ideals were simply those privileged by the mostly white male ruling class. The dominant poststructural dogma of the late 1980s denied the First Amendment the transcendent value that the liberal belief in a marketplace of ideas has always awarded it.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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