by Ellen Levy
Listening to feminists wage war over anti-pornography legislation is a bit like watching characters face off in David Mamet’s controversial new play “Oleanna,” in which a student accuses her professor of sexual harassment: Plaintive and impassioned, both sides seem unable to understand each other. On one side are anti-pornography feminists who contend that pornography is sex discrimination, and want civil legislation which will allow women to bring suits against producers and distributors of sexually explicit works that “subordinate” women, if they can prove they have been harmed by the materials. On the other are feminists who fear such legislation will inhibit constitutionally protected speech without addressing the root causes of gender inequity and violence against women.
The debate has driven a deep wedge into the feminist community. Anti-pornography feminists are derided as neo Puritans, by their Second Wave sisters, while those who oppose legislation are labeled “First Amendment fundamentalists” and “Uncle Toms.” As Patricia Ireland, president of NOW, has said, “They can’t even agree to disagree.” Relevant to understanding this face-offs the often overlooked work of feminist philosophers Monique Wittig and Carol Gilligan, who have critiqued binary models of conflict and argued the need to reexamine the very assumptions on which the legal system is based.
For while the struggle over porn testifies to the complex intersection of sex, symbols, and speech in our culture, it may also be compounded by a misreading of the issues. With few exceptions, the feminist anti-pornography debate has been read through a liberal lens as a clear-cut conflict between censorship and free speech. Yet this framing masks the fact that the two sides are in fact grounded in radically different conceptions of justice and conflict. Anti-pornography proponents argue for law based on an ethic of care and harm, while their opponents argue on the basis of rights.
Opponents of pornography legislation argue that we must choose between absolute free speech and censorship; proponents of the legislation deny that it is an either/or choice.
For anti-pornography adherents, constitutional rights do not represent absolute, universal principles protective of all equally, but specific historical inscriptions of power. “Highfalutin legal principles have masked and protected privilege, dominance, and exploitation,” assert author Andrea Dworkin and legal scholar Catharine MacKinnon in their primer of anti-pornography legislation, Pornography and Civil Liberties: A New Day for Women’s Equality. “Our Constitution was designed to protect slavery and to keep women chattel. The ‘rights’ guaranteed to white men were grants of freedom that established a civil and social dominance over Blacks and women.”
This stance reflects the post structural understanding that meaning is constructed through language. As cultural critic and Rutgers University professor Catherine Stimpson argues, “If language constructs our world, the old binary distinction between word and deed, speech and conduct, blurs and threatens to dissolve.”
This perspective, argues cultural critic Wendy Kaminer, denies “the First Amendment the transcendent value that the liberal belief in a marketplace of ideas has always awarded it.” On the contrary, explains Kaminer, “legal principles, like those protecting speech, [are seen as] mere rhetorical power plays: Without any objective, universal merit, prevailing legal ideals [are] simply those privileged by the mostly white ruling class.”
But the anti-porn stance also reflects feminist skepticism of justice in a society that has been decidedly unjust to women. As critic Deborah Cameron asserts, “the problem of pornography is not reducible to questions of censorship. It is part of a broader and deeper cultural politics – the politics of meaning and definition.”
The feminist debate over pornography renewed last year with the battle over the Pornography Victims Compensation Act, a federal bill which would enable victims of sex crimes to sue the producers, distributors, and sellers of obscene materials or child pornography adjudged to have caused the crime. Introduced in 1991 by Senators Mitch McConnell (R-KY), Charles Grassley (D-IA), Strom Thurmond (R-SC), and Robert Packwood (R-OR), the bill in its original form would have allowed suits against sexually explicit materials. However, in an effort to appease opposition and get the legislation through committee, its language was amended to apply only to so-called “hard core” porn – obscene materials and child pornography – which do not have constitutional protection.
The bill was the latest incarnation of model legislation first introduced in Minneapolis in 1983 by MacKinnon and Dworkin. The Minneapolis ordinance defined pornography – which currently has no definition under the law – as sex discrimination, and made provisions for women to file civil suits for damages. Its principal innovation was to shift the focus of obscenity law from a vague notion of “injury to morality” to a specific recognition of harm to women.
The federal bill represented a merger of the feminist model with a conservative agenda. Unlike the Minneapolis model, it did not mention sex discrimination and the traditional definition of “pornography” as obscene material and child pornography was maintained. MacKinnon and Dworkin were not active in this legislative battle, although legislators did consult them years ago when the bill was first being developed.
The Pornography Victims Compensation Act was not the first time the MacKinnon/Dworkin model was adopted by the Right. In 1983, a modified version of their model ordinance was introduced in Indianapolis by an anti ERA, antichoice, Eagle Forum city councilwoman. And the following summer, in Suffolk County, New York, conservatives so thoroughly adapted the Minneapolis model to a rightwing agenda that even MacKinnon and Dworkin opposed the bill.
The recent federal model attracted strong opposition from many feminists. In a Valentine’s Day letter to the Senate Judiciary Committee, some 180 members of the ad hoc Committee of Feminists for Free Expression – including Adrienne Rich, Betty Friedan, Jamaica Kincaid, and Elizabeth Murray – spoke out against the bill as a distraction from the substantive issues affecting women’s lives. In their letter they argue that the bill “scapegoats speech as a substitute for action against violence” and promotes a “porn made me do it excuse for rapists and batterers.” “Violence is caused by deeply economic, family, psychological and political factors,” they wrote, “and it is these that need addressing.”
“To demand censorship is the wrong strategy for giving women the power and right to make decisions in the area of sexuality,” says Leanne Katz, executive director of the National Coalition Against Censorship and coordinator of its Working Group on Women, Censorship and “Pornography.” “Sex education, information on women’s sexuality, and lesbian erotica, are all constantly under attack as pornography. Suppression has never served women’s interests and it’s not about to start.”
Even psychologists Edward Donnerstein and Daniel Linz, whose laboratory research on the effects of pornography was cited in the Senate bill as support for the bill’s provisions, are critical of the legislation. Writing in the Chronicle of Higher Education, they cautioned that “the wrong material…is targeted in the Victims Compensation Act. Sexual explicitness per se is not a causal agent for antisocial behavior in any research study that we have examined. Rather, violence, whether presented in a sexually explicit or non-explicit context, seems to be the crucial variable.”
Despite the eventual defeat of the Pornography Victims Compensation Act, which died on the Senate floor last year without coming up for a vote, its passage by the Senate Judiciary Committee has enhanced the legitimacy of such legislation and helped fuel a wave of third party liability bills across the country which aim to use victim compensation legislation to fight pornography and ostensibly win women rights.
In the first five months of 1993, bills appeared in state legislatures in Missouri and California which would hold sexually explicit materials responsible for crimes. Assembly Bill 490, introduced this spring in the California legislature, is even more restrictive than the Pornography Victims Compensation Act, because it would allow suits against producers and distributors of “material harmful to minors” – which has a looser standard than obscenity – as well as “hard core” pornography. Backed by the National Coalition Against Pornography, an Ohio-based alliance of religious and private organizations, the bill is another example of the rightwing appropriation of the MacKinnon/ Dworkin model. Meanwhile, Senator McConnell is considering reintroducing the federal bill.
So far the MacKinnon/Dworkin model has found lasting success only in Canada, where the Canadian Supreme Court in February 1992, ruled unanimously in Regina v. Butler to allow the criminalization of pornography in order to promote gender equality. In the Butler case, the entire inventory of a Winnipeg porn shop – which included depictions of rape and bondage – was seized and the owner prosecuted under Canada’s obscenity law. The shop owner, Buder, argued that the law violated his fundamental right to expression guaranteed in the 1982 Canadian Charter of Rights and Freedoms. The Supreme Court acknowledged that Butler’s speech was infringed, but found that pornography’s harm to women’s equality, self-esteem, and physical safety justified the regulation. “This classification in the law is historic,” states Kathleen Mahoney, the University of Calgary law professor who argued the state’s case before the Supreme Court. “For the first time, the Supreme Court of Canada has linked the obscene wim that which subordinates or degrades women rather than that which offends some notion of sexual morality.”
The ruling does not outlaw sexual expression, Mahoney points out. “Explicit sex which is neither violent, degrading, nor dehumanizing will not be considered obscene unless it involves the use of children,” she notes in a recent article in Law and Contemporary Problems.
Even those materials deemed violent and dehumanizing are acceptable under the decision if the “depiction is necessary for artistic purposes or for the serious treatment of a theme.”
“Any legislation can be used against anybody/’Mahoney acknowledges. “All of our criminal code can be misused.” The question is “how much risk are we prepared to take, given the harm that is going on? It is always a question of balance. You have to weigh the harm to women against the risk of improper law enforcement,” she says.
“We can’t have a perfect law. Language is too imperfect,” asserts Mahoney. “For example, we operate the whole law of negligence on the basis of “reasonableness.” That is a very vague notion, but we know we must have Paws] to move ahead on a principled basis. Our principled basis is the Charter of Rights and Freedoms which entrenches sex equality as a fundamental guarantee.” Not everyone is willing to take the risk.
“Many of us know that if we didn’t have our First Amendment rights, we’d have been shut up,” says Stimpson. “MacKinnon and Dworkin’s work would replace constitutional protection with the law itself.”
But not all American feminists accept the assertion that one must choose between the First Amendment and censorship. MacKinnon and Dworkin note that constitutional rights have been infringed before without being destroyed. Desegregation, they assert, did not destroy the First Amendment right to freedom of association, as white racists charged it would. And many exceptions exist to the First Amendment right to free speech, which does not protect bribes, threats, fraud, or conspiracy.
Feminist philosopher Monique Wittig is among those feminist philosophers whose work calls into question the liberal framing of anti-pornography legislation in terms of censorship or free speech. In her essay “Homo Sum,” she analyzes the distortion imposed by binary oppositions such as male/female, and good/ bad. “Certainty that everything is either black or white,” she writes, “are all symptoms of what I have called…the straight mind. And they have shaped our concepts, our laws, our institutions, our history, our cultures.” As a lesbian, Wittig argues that this paradigm cannot account for Sapphist experience, for women who do not take their meaning from a relationship with men.
For Wittig, as for MacKinnon and Dworkin, there can be no simple opposition between reality and representation, or speech and censorship, or violent image and violent act. “Alas for us,” writes Wittig, “the symbolic order partakes of the same reality as the political and economic order. There is a continuum in their reality, a continuum where abstraction is imposed upon materiality and can shape the body as well as the mind of those it oppresses.”
Anti-pornography feminists maintain that legislation would not dismantle constitutional protections but force the justice system to take women’s experience into account in making law. “Pornography is a reality in our society,” says Mahoney. “What is different under Butler is that the analysis has changed.”
Now, she says, the effect of pornography on women’s lives is becoming part of the law through judicial interpretation. She cites a recent case in which, to produce photographs, a minor had been bound and penetrated with objects. In the absence of Butler, the judge could have found the defendant guilty under morality-based obscenity laws. With the precedent in place, the judge “took those concepts in Butler and gave [the dynamics of the case] some explanation,” assessing the images “in terms of women’s and girls’ equal rights to respect and dignity in Canadian society.”
Debates about speech rights “keep the discussion on a very abstract level,” says Mahoney. “We want to look at the law in terms of a context of harm, in the context of the reality of women’s lives.” It is this emphasis on harm rather than rights which distinguishes the anti-pornography position and signals that a qualitatively different perspective may be at work.
Listening to the anti-pornography debate, it often seems the two sides are not speaking the same language. And perhaps they aren’t. In 1982, Carol Gilligan’s research on moral development, published in her book In A Different Voice, described a different moral voice among females. Though not peculiar to girls or women, and affected by educational levels, this different voice nevertheless testifies to the existence of two qualitatively distinct conceptions of morality and justice between the sexes. In her research, Gilligan found that females by and large assessed situations in terms of harm, which is an ethic of care, while males appealed to abstract rights. Gilligan was careful to point out that this “different voice…was characterized not by gender but theme,” and she did not suggest an “essential” female morality. “The contrast between male and female voices are presented,” she wrote, “to highlight a distinction between two modes of thought and to focus on a problem of interpretation rather than to represent a generalization about either sex.”
The split over pornography legislation in many ways conforms to the division Gilligan describes. On one side are those arguing the primacy of abstract speech rights, on the other, those arguing an ethic of care and harm. As Gilligan has explained, “While an ethic of justice proceeds from the premise of equality – that everyone should be treated the same – an ethic of care rests on the premise of nonviolence – that no one should be hurt.”
Like Gilligan’s different voice, the different perspective of anti-pornography proponents may signal the existence of an alternative to the oppositional model of conflict and the difficult choice between valuing rights or limiting harm. “By positing…two different modes,” Gilligan speculates, it becomes possible to develop “a more complex rendition of human experience” – and potentially a more complex rendition of law as well.
The intersection of these different voices is predictably problematic because the fact that they are different may go unrecognized.
Gilligan believes that the failure of social scientists to recognize this different moral voice stems “in part from the assumption that there is a single mode of social experience and interpretation” – just as it has been assumed, in the battle over porn, that no viable alternative exists to liberal legal discourse.
Clearly there can be no perfect correlation made between Gilligan’s psychological research and the current legislative battle over pornography, but Gilligan’s work does offer the possibility of a less antagonistic reading of the issues by feminists on both sides. Rather than provoking enmity, their differing perspectives could provide the ground for new feminist legal theory that combines the strength of the “rights” approach with the compassion of an approach based on care.
However, it remains to be seen whether this different voice even would be heard once installed in U.S. courts and legislatures. The brief history of the MacKinnon/Dworkin model offers ample evidence that its principles are readily adapted by those with anti-feminist agendas. There is also the possibility the law would be used to silence feminist analysis. After all, Kate Millett’s groundbreaking treatise Sexual Politics opens with a rape scene a la Henry Miller, and Dworkin makes use of sexually explicit texts to chart the intersection of sex and power in her incisive literary critique Intercourse.
And to put in place laws which could even potentially be used to silence honest sex talk could be a death knell for Third Wave feminists, who have come of age in the era of AIDS. “AIDS and HIV, as sexually transmitted diseases, forced me into talking about safer sex and I can’t talk about safer sex unless I talk about sex,” says lesbian videographer and activist Catherine Saalfield. Saalfield helped organize the sold-out “LUST” (Lesbians Undoing Sexual Taboos) conference last year, the first women’s sex conference since the Barnard “Toward the Politics of Sexuality” conference 10 years ago.
“People are hungry to talk about sex,” says Saalfield. “People like porn. We live in such a repressive, anti-woman, antisex society, we need all the venues we can get for honest, open, safe discussion about sex to increase our own honest, open, and safe sex play and practices.” She is particularly concerned about the ramifications of anti-pomography legislation for lesbians. “We’re the ones who are going to be targeted,” says Saalfield, “Because we’re the people with [recognized] sexuality in this culture.” And given the limited imagery available to lesbians, the loss could be significant.
In Canada, for example, police raided Toronto’s lesbian and gay bookstore Glad Day Bookshop on the heels of the Butler decision and confiscated the lesbian magazine Bad Attitude. The bookshop fought the confiscation in court, but lost in the end when one story in the magazine – a rape fantasy – was deemed illegal.
Mahoney maintains that discriminatory law enforcement, not Butler, is responsible for the confiscation of lesbian erotica. “There has been a homophobic response to this material since time immemorial,” she says. The ACLU acknowledges that confiscation of sexually explicit materials by Canadian Customs without due process or judicial determinations of obscenity was commonplace long before the Supreme Court decision, yet notes an increase since Butler. Bruce Walsh, a member of Censor stop – a Canadian coalition which is fighting censorship and Butler – asserts that the incidence of Customs seizures “has increased a thousand-fold” since the ruling. Whereas in the past lesbians and gays were targeted as a vulnerable minority, now, according to Walsh “about half of Canada’s bookstores have been harassed” as “Customs has gone after political dissidents” in general.
The anti-pomography legislation proposed by Dworkin and MacKinnon would not target queer material according to Pornography and Civil Rights, since under the ordinance “harm cannot be a moral one.” But neither would it offer any special protection to lesbian and gay materials that blend sex and subordination or violence.
Ironically, some feminists believe that pornography itself could be a key to winning women’s equality. As the late British author Angela Carter argued in The Sadeian Woman and the Ideology of Pornography, “Sexual relations…always render explicit the nature of social relations in the society in which they take place and, if described explicitly, will form a critique of those relations, even if that is not and never has been the intention of the pornographer.”
For Carter, porn provides a unique arena for the analysis and reinscription of sex and power. As she imagined it, pornography could provide a map for sexual equality, the key that unlocks a sexual Utopia. “The moral pornographer,” she proclaimed, “would be an artist who uses pornographic material as part of the acceptance of the logic of a world of absolute sexual license for all the genders, and projects a model of the way such a world might work.”
Whatever the future of anti-porn legislation in this country, one thing is certain: The debate around porn is forcing a reconsideration of legal and philosophical premises and as well as the function of images, words, and law in the construction of meaning. Arguments on both sides of the issue have driven home the point made by professor Anita Hill in a speech earlier this year. As she stated, “Who gets to tell a story and how it is told, who tells it and who listens, is a matter of power.”
Ellen Levy was formerly managing editor of The Independent Film and Video Monthly. Her writing has appeared in The Nation, In These Times, and many other publications.