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

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.

Massachusetts Mischief

This unlikely convergence of first amendment critiques from multiculturalists, post-structuralists, and advocates of traditional family values, recently combined with high-profile rape and harassment cases and women's abiding concern with sexual violence, buoyed the feminist anti-porn movement. This year it re-emerged on the national and local scene with renewed legislative clout. The presumption that pornography oppresses women and is a direct cause of sexual violence is the basis for bills introduced in the U.S. Senate and the Massachusetts legislature. Last June the Senate Judiciary Committee passed the Pornography Victims' Compensation Act, which would make producers, distributors, exhibitors, and retailers convicted of disseminating material adjudged obscene liable for damages to victims of crimes who could claim that the material caused their victimization. The Massachusetts legislature held hearings on a much broader anti-porn bill, closely modeled on the Indianapolis ordinance. Disarmingly titled "An Act to Protect the Civil Rights of Women and Children," the Massachusetts bill would not only make purveyors of pornography liable for crimes committed by their customers; it would also allow any woman, whether or not she has been the victim of a crime, to sue the producers, distributors, exhibitors, or retailers of any sexually explicit visual material that subordinates women. (The exclusion of verbal "pornography" from the anti-trafficking provision would protect the likes of Norman Mailer, whom many feminists consider a pornographer, so long as his works are not adapted for the screen.) What this bill envisions is that the First Amendment would protect only that speech considered sexually correct.

The feminist case against pornography is based on the presumption that the link between pornography and sexual violence is clear, simple, and inexorable. The argument is familiar: censorship campaigns always blame unwanted speech for unwanted behavior: Jerry Falwell once claimed that sex education causes teenage pregnancy, just as feminists claim that pornography causes rape. One objection to this assertion is that it gives rapists and batterers an excuse for their crimes, and perhaps even a "pornography made me do it" defense.

The claim that pornography causes rape greatly oversimplifies the problem of sexual violence. We can hardly say that were it not for pornography, there would be no rape or battering. As feminists opposed to anti-porn legislation have pointed out, countries in which commercial pornography is illegal—Saudi Arabia, for example—are hardly safe havens for women.

This is not to deny that there probably is some link between violence in the media and violence in real life, but it is complicated, variable, and difficult to measure. Not all hate speech is an incantation; not all men are held spellbound by pornography. Poststructural feminists who celebrate subjectivism should be among the first to admit that different people respond to the same images differently. All we can confidently claim is that the way women are imagined is likely to have a cumulative effect on the way they're treated, but that does not mean any single image is the clear and simple cause of any single act.

The Dworkin-MacKinnon bill, however, did more than assume that pornography causes sex discrimination and other crimes against women. It said that pornography is violence and discrimination: the active subordination of women (and it assumed that we can all agree on what constitutes subordination). MacKinnon and her followers deny that prohibiting pornography is censorship, because they effectively deny that pornography is speech—and that is simply Orwellian. The line between speech and behavior is sometimes blurred: dancing nude down a public street is one way of expressing yourself which may also be a form of disorderly conduct. But if pornography is sex discrimination, then an editorial criticizing the President is treason.

Most feminists concerned about pornography are probably not intent on suppressing political speech, but the legislation they support, like the Massachusetts anti-porn bill, is so broad, and its definition of pornography so subjective, that it would be likely to jeopardize sex educators and artists more than it would hard-core pornographers, who are used to operating outside the law. Feminist legislation makes no exception for "pornography" in which some might find redeeming social value; it could, for example, apply in the case of a woman disfigured by a man who had seen too many paintings by Willem de Kooning. "If a woman is subjected," Catharine MacKinnon writes, "why should it matter that the work has other value?"

With this exclusive focus on prohibiting material that reflects incorrect attitudes toward women, anti-porn feminists don't deny the chilling effect of censorship; they embrace it. Any speech that subordinates women—any pornography—is yelling "Fire!" in a crowded theater, they say, falling back on a legal canard. But that's true only if, just as all crowds are deemed potential mobs, all men are deemed potential abusers whose violent impulses are bound to be sparked by pornography. It needs to be said, by feminists, that efforts to censor pornography reflect a profound disdain for men. Catharine MacKinnon has written that "pornography works as a behavioral conditioner, reinforcer and stimulus, not as idea or advocacy. It is more like saying 'kill' to a trained guard dog—and also the training process itself." That's more a theory of sexuality than of speech: pornography is action because all men are dogs on short leashes.

'This bleak view of male sexuality condemns heterosexuality for women as an exercise in wish fulfillment (if only men weren't all dogs) or false consciousness (such as male-identified thinking). True feminism, according to MacKinnon, unlike liberal feminism, "sees sexuality as a social sphere of male power of which forced sex is paradigmatic." With varying degrees of clarity, MacKinnon and Dworkin suggest that in a context of pervasive, institutionalized inequality, there can be no consensual sex between men and women: we can never honestly distinguish rape from intercourse.

An Esoteric Debate

A modified version of the message may well have particular appeal to some women today, who make up an important constituency for the anti-porn movement. In their late teens and early twenties, these women are still learning to cope with sexuality, in a violent and unquestionably misogynistic world. Feminism on campus tends to focus on issues of sexuality, not of economic equity. Anxiety about date rape is intense, along with anxiety about harassment and hate speech. Understanding and appreciation of the First Amendment is a lot less evident, and concern about employment discrimination seems somewhat remote. It's not hard to understand why: college women, in general, haven't experienced overt repression of opinions and ideas, or many problems in the workplace, but from childhood they've known what it is to fear rape. In the age of AIDS, the fear can be crippling.

Off campus the anti-porn feminist critique of male sexuality and heterosexuality for women has little appeal, but it is not widely known. MacKinnon's theoretical writings are impenetrable to readers who lack familiarity with poststructural jargon and the patience to decode sentences like this: "If objectivity is the epistemological stance of which women's sexual objectification is the social process, its imposition the paradigm of power in the male form, then the state will appear most relentless in imposing the male point of view when it comes closest to achieving its highest formal criterion of distanced aperspectivity." Dworkin is a much more accessible polemicist, but she is also much less visible outside feminist circles. Tailored, with an air of middle-class respectability and the authority of a law professor, MacKinnon looks far less scary to mainstream Americans than her theories about sexuality, which drive the anti-porn movement, might sound.

If anti-pornography crusades on the right reflect grassroots concern about changing sexual mores and the decline of the traditional family, anti-pornography crusades on the feminist left reflect the concerns and perceptions of an educated elite. In the battle for the moral high ground, anti-porn feminists claim to represent the interests of a racially diverse mixture of poor and working-class women who work in the pornography industry—and they probably do represent a few. But many sex-industry workers actively oppose anti-porn legislation (some feminists would say they've been brainwashed by patriarchy or actually coerced), and it's not at all clear that women who are abused in the making of pornography would be helped by forcing it deeper underground; working conditions in an illegal business are virtually impossible to police. It's hard to know how many other alleged victims of pornography feel represented by the anti-porn movement, and I know of no demographic study of the movement's active members.

Leaders of the feminist anti-porn movement, however, do seem more likely to emerge from academia and the professions than from the streets or battered-women's shelters. Debra Robbin, a former director of the New Bedford Women's Center, one of the first shelters in Massachusetts, doesn't believe that "women on the front lines," working with victims of sexual violence, will "put much energy into a fight against pornography." Activists don't have time: "They can barely leave their communities to go to the statehouses to fight for more funding." The poor and working-class women they serve would say, "Yeah, pornography is terrible, but I don't have food on my table." Carolin Ramsey, the executive director of the Massachusetts Coalition of Battered Women Service Groups, says that the pornography debate "doesn't have a lot to do with everyday life for me and the women I'm serving." She explains, "Violence in the home and the streets that directly threatens our lives and our families is more pressing than a movie. Keeping my kids away from drugs is more important than keeping them away from literature."

Ramsey is sympathetic to anti-porn feminists ("there's room in the movement for all of us"), and she believes that "violence in the media contributes to violence in real life." Still, she considers the pornography debate "esoteric" and "intellectual" and feels under no particular pressure from her constituents to take a stand against pornography.

If censoring pornography is the central feminist issue for Catharine MacKinnon, it is a peripheral issue for activists like Robbin and Ramsey. Robbin in particular does not believe that eliminating pornography would appreciably lessen the incidence of sexual abuse. David Adams, a co-founder and the executive director of Emerge, a Boston counseling center for male batterers, believes that only a minority of his clients (perhaps 10 to 20 percent) use hard-core pornography. He estimates that half may have substance-abuse problems, and adds that alcohol seems more directly involved in abuse than pornography. Adams agrees with feminists that pornography is degrading to women but does not support legislation regulating it, because "the legislation couldn't work and would only open the door to censorship."

What might work instead? Emerge conducts programs in Boston and Cambridge public schools on violence, aimed at both victims and perpetrators. "There's a lot of violence in teen relationships," Adams observes. Debra Robbin wishes that women in the anti-porn movement would "channel their energies into funding battered women's shelters and rape-crisis centers."

Reforming the criminal-justice system is also a priority for many women concerned about sexual violence. Anti-stalking laws could protect many more women than raids on pornographic video stores are ever likely to; so could the efficient processing of cases against men who abuse women.

SENSATIONALISM AS AN ORGANIZING TOOL

Why do some women channel their energies into a fight against pornography? Antiporn legislation has the appeal of a quick fix, as Robbin notes. And, she adds, "there's notoriety to be gained from protesting pornography." The "harder work"—promoting awareness and understanding of sexual violence, changing the way children are socialized, and helping women victims of violence—is less sensationalist and less visible.

Sensationalism, however, is an organizing tool for antiporn feminists. If questions about the effects of pornography seem intellectual to some women involved in social-service work, the popular campaign against pornography is aggressively anti-intellectual. Although advocates of First Amendment freedoms are stuck with intellectual defenses of the marketplace of ideas, anti-porn feminists whip up support for their cause with pornographic slide shows comprising hard-core pictures of women being tortured, raped, and generally degraded. Many feminists are equally critical of the soft-core porn movies available at local video stores and on cable TV, arguing that the violence in pornography is often covert (and they include mainstream advertising images in their slide shows). But hard-core violence is what works on the crowd. Feminist rhetoric often plays on women's worst fears about men: "Pornography tells us that there but for the grace of God go us," Gail Dines, a sociology professor at Wheelock College, exclaimed during her recent slide show at Harvard, as she presented photographs of women being brutalized.

Dines's porn show was SRO, its audience some three hundred undergraduates who winced and gasped at the awful slides and cheered when Dines pointed to a pornographic picture of a woman and said, "When I walk down the street, what they know about me is what they know about her!" She warned her mostly female audience that pornographers have "aggressively targeted college men." She seemed preoccupied with masturbation. Part of the problem of pornography, she suggested, is that men use it to masturbate, and "women weren't put on this world to facilitate masturbation." She advised a student concerned about the presence of Playboy in the college library that library collections of pornography aren't particularly worrisome, because men are not likely to masturbate in libraries.

In addition to condemnations of male sexuality, Dines offered questionable horror stories about pornography's atrocities, like this: Rape vans are roaming the streets of New York. Women are dragged into the vans and raped on camera; when their attackers sell the rape videos in commercial outlets, the women have no legal recourse.

A story like this is impossible to disprove (how do you prove a negative?), but it should probably not be taken at face value, as many students in Dines's audience seemed to take it. William Daly, the director of New York City's Office of Midtown Enforcement, which is responsible for monitoring the sex industry in New York, has never heard of rape vans; almost anything is possible on Forty-second Street, but he is skeptical that rape vans are a problem. Part of Dines's story, however, is simply untrue: under New York State privacy law, says Nan Hunter, a professor of law at Brooklyn Law School, women could seek damages for the sale of the rape videos, and also an injunction against their distribution.

It would be difficult even to raise questions about the accuracy of the rape-van story, however, in the highly emotional atmosphere of a slide show; you'd be accused of "not believing the women." Just as slides of bloody fetuses pre-empt rational debate about abortion, pornographic slide shows pre-empt argumentative questions and rational consideration of First Amendment freedoms, the probable effect of efforts to censor pornography, and the actual relationship between pornography and violence.

A PORNOGRAPHIC CULTURE

Does pornography cause violence against women, as some feminists claim? Maybe, in some cases, under some circumstances involving explicitly violent material. Readers interested in the social-science debate should see both the report of the Attorney General's Commission on Pornography, which found a link between pornography and violence against women, and the feminist writer Marcia Pally's "Sense and Censorship," published by Americans for Constitutional Freedom and the Freedom to Read Foundation. In addition to the equivocal social-science data, however, we have the testimony of women who claim to have been brutalized by male consumers of pornography. Anti-porn feminists generally characterize pornography as a "how to" literature on abusing women, which men are apparently helpless to resist. But evidence of this is mainly anecdotal: At a hearing last March on the anti-porn bill in the Massachusetts legislature, several women told awful, lurid tales of sexual abuse, said to have been inspired by pornography. Like a TV talk show, the Attorney General's commission presented testimony from pornography's alleged victims, which may or may not have been true. It's difficult to cross-examine a sobbing self-proclaimed victim; you either take her testimony at face value or you don't.

Still, many people don't need reliable, empirical evidence about a link between pornography and behavior to believe that one exists. When feminists talk about pornography, after all, they mean a wide range of mainstream media images—Calvin Klein ads, Brian De Palma films, and the endless stream of TV shows about serial rapist stranglers and housewives who moonlight as hookers. How could we not be affected by the routine barrage of images linking sex and violence and lingerie The more broadly pornography is defined, the more compelling are assertions about its inevitable effect on behavior, but the harder it is to control. How do we isolate the effects of any particular piece of pornography if we live in a pornographic culture?

Narrowly drawn anti-porn legislation, which legislators are most likely to pass and judges most likely to uphold, would not begin to address the larger cultural problem of pornography. Feminists themselves usually claim publicly that they're intent on prohibiting only hard-core pornography, although on its face their legislation applies to a much broader range of material. But if you accept the feminist critique of sexism in the media, hard-core porn plays a relatively minor role in shaping attitudes and behavior. If feminists are right about pornography, it is a broad social problem, not a discrete legal one—that is, pornography is not a problem the law can readily solve, unless perhaps we suspend the First Amendment entirely and give feminists the power to police the mainstream media, the workplace, and the schools.

The likelihood that feminists would not be the ones to police Forty-second Street should anti-porn legislation pass is one reason that many feminists oppose the antiporn campaign. If society is as sexist as Andrea Dworkin and Catharine MacKinnon claim, it is not about to adopt a feminist agenda when it sets out to censor pornography. The history of anti-porn campaigns in this country is partly a history of campaigns against reproductive choice and changing roles for men and women. The first federal obscenity legislation, known as the Comstock Law, passed in 1873, prohibited the mailing of not only dirty pictures but also contraceptives and information about abortion. Early in this century Margaret Sanger and the sex educator Mary Ware Dennett were prosecuted for obscenity violations. Recently the New Right campaign against socially undesirable literature has focused on sex education in public schools. Anti-porn activists on the right consider feminism and homosexuality (which they link) to be threats to traditional family life (which, in fact, they are). In Canada a landmark Supreme Court ruling this year which adopted a feminist argument against pornography was first used to prohibit distribution of a small lesbian magazine, which politically correct feminist would be careful to label erotica.

Gay and lesbian groups, as well as advocates of sex education and the usual array of feminist and nonfeminist civil libertarians, actively oppose anti-pornography legislation. Some state chapters of the National Organization for Women—New York, California, and Vermont—have taken strong anti-censorship stands, but at the national level NOW has not taken a position in the pornography debate. Its president, Patricia Ireland, would like to see pornography become socially unacceptable, "like smoking," but is wary of taking legal action against it, partly because she's wary of "giving people like Jesse Helms the power to decide what we read and see." But for major, national feminist organizations, like NOW and the NOW Legal Defense and Education Fund, the pornography debate is a minefield to be carefully avoided. Pornography is probably the most divisive issue feminists have faced since the first advocates of the ERA, in the 1920s, squared off against advocates of protective labor legislation for women. Feminists for and against anti-porn legislation are almost as bitterly divided as pro-choice activists and members of Operation Rescue.

Renewed concern about abortion rights may drain energy from the anti-porn movement. Feminists may awaken to the danger that anti-pornography laws will be used the against sex educators and advocates of choice. (The imposition of a gag rule on family-planning clinics may have made some feminists more protective of the First Amendment.) Politicians courting women voters may find that anti-porn legislation alienates more feminists than it pleases. Still, censorship campaigns will always have considerable appeal. Like campaigns to reinstate the death penalty, they promise panaceas for profound social pathologies. They make their case by exploiting the wrenching anecdotal testimony of victims: politicians pushing the death penalty hold press conferences flanked by mothers of murdered children, just as feminists against pornography spotlight raped and battered women.

Rational argument is no match for highly emotional testimony. But it may be wishful thinking to believe that penalizing the production and distribution of hard-core pornography would have much effect on sexual violence. It would probably have little effect even on pornography, given the black market. It would, however, complicate campaigns to distribute information about AIDS, let alone condoms, in the public schools. It would distract us from the harder, less popular work of reforming sexual stereotypes and roles, and addressing actual instead of metaphorical instruments of violence. The promise of the anti-porn movement is the promise of a world in which almost no one can buy pornography and almost anyone can buy a gun.

Presented by

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

How to Cook Spaghetti Squash (and Why)

Cooking for yourself is one of the surest ways to eat well. Bestselling author Mark Bittman teaches James Hamblin the recipe that everyone is Googling.

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register.

blog comments powered by Disqus

Video

How to Cook Spaghetti Squash (and Why)

Cooking for yourself is one of the surest ways to eat well.

Video

Before Tinder, a Tree

Looking for your soulmate? Write a letter to the "Bridegroom's Oak" in Germany.

Video

The Health Benefits of Going Outside

People spend too much time indoors. One solution: ecotherapy.

Video

Where High Tech Meets the 1950s

Why did Green Bank, West Virginia, ban wireless signals? For science.

Video

Yes, Quidditch Is Real

How J.K. Rowling's magical sport spread from Hogwarts to college campuses

Video

Would You Live in a Treehouse?

A treehouse can be an ideal office space, vacation rental, and way of reconnecting with your youth.

More in National

More back issues, Sept 1995 to present.

Just In