Porn Busters
Radical feminists are turning their backs on the First Amendment in a crusade to clean up America.
It was a most curious spectacle in April 1984 as members of the Indianapolis City Council debated an anti-pornography ordinance. A bizarre coalition of left-wing feminists (including Andrea Dworkin, author of Pornography: Men Possessing Women) and conservative Republicans, such as anti-ERA councilwoman Beulah Coughenour and Mayor William Hudnut, supported the measure. Arrayed against them was an alliance of booksellers, theatre owners, and the ubiquitous American Civil Liberties Union. Opponents of the proposal stood little chance as dozens of militant feminists and more than 200 Moral Majority sympathizers packed the council chambers. Following a spirited debate, council members voted 24 to 5 to approve the scheme.
The ACLU filed a lawsuit challenging the Indianapolis ordinance within hours of its passage. On November 19, 1984, Federal District Judge Sarah Barker struck down the measure as unconstitutionally vague and overly broad. City officials promptly appealed the decision, and the entire matter appears headed for eventual resolution in the US Supreme Court.
The Indianapolis anti-pornography ordinance attracted national attention because it embodies a radical new legal theory regarding the issue of pornography. Restrictive statutes normally declare certain types of sexually explicit material to be "obscene" and then make the distribution of such material a criminal offense. The Indianapolis measure, by contrast, defines pornography as a form of sex discrimination actionable under civil law. This approach was the brainchild of feminist leader Andrea Dworkin and University of Minnesota law professor Catharine MacKinnon. The two women and their political allies had already achieved a significant breakthrough several months earlier when they persuaded the Minneapolis City Council to enact a similar ordinance, although Mayor Don Fraser later vetoed the council's handiwork.
Both the Minneapolis and Indianapolis proposals defined pornography as "the graphic sexually explicit subordination of women, whether in pictures or in words." The Indianapolis ordinance also specifies that to be considered a violation of law, the offending material must meet one of six other conditions. Some of these subsidiary requirements are relatively specific, for example those prohibiting any depiction of women "cut up or mutilated or bruised or physically hurt." Other categories are alarmingly vague. Proscribed conduct includes portraying women as "sexual objects for domination, conquest, violation, exploitation, possession or use" or showing them in "postures or positions of servility, submission, or display."
Just as the Indianapolis ordinance defines pornography differently (and more expansively) compared to standard obscenity statutes, so does the procedure for enforcement differ. No longer would it be necessary for police vice squads to raid adult bookstores or theaters, nor would the local district attorney have to seek a criminal indictment against those individuals purveying the illicit items.
Instead, any woman who felt aggrieved by a book, magazine, video, or movie containing material within the definition of the ordinance could file a complaint with the city's Office of Equal Opportunity. This agency, which already handles complaints regarding discrimination in housing, public accommodations, and employment, would then have to conduct a prompt investigation. If, based upon "the preponderance of the evidence," investigators determined that the material was in fact pornographic, the agency would have the power to issue a cease and desist order. The respondent would have to comply with that order and remove the offending items or the Office of Equal Opportunity could seek enforcement in the courts. While the agency would have the burden of showing that the respondent's actions were in violation of the law, there is no requirement that the government must prove its case "beyond a reasonable doubt," as it must do in criminal proceedings.
The last point underscores one especially odious feature of the Indianapolis experiment. Despite feminist claims that treating pornography as a civil-rights violation represents a new and innovative approach to an unsavory problem, it actually poses a more lethal threat than traditional obscenity statutes to freedom of expression. At least with obscenity laws, basic constitutional guarantees protecting the rights of criminal defendants remain intact. Before prosecution can commence, authorities must obtain an indictment based upon probable cause. Defendants are entitled to a formal trial—including trial by jury if they choose. And guilt must be demonstrated beyond a reasonable doubt to warrant conviction.
Compare these rigorous procedural requirements to the insidious system the Indianapolis ordinance would establish. The entire process is based on the legal fiction that penalties for violation are civil rather than criminal—as though arbitrarily dictating what publications a merchant may carry, thereby crippling that person's business, does not constitute "punishment." Since it is technically not a criminal matter, most of the guarantees afforded defendants in a criminal case would not apply. Instead of an indictment handed down by a district attorney or grand jury, a complaint from any disgruntled citizen would trigger the process.
During the initial stages, accused parties would be at the mercy of an investigative bureaucracy that would have great latitude in determining guilt or innocence. There would be no assurance that officials conducting the investigation would be impartial; indeed, they could be zealots dedicated to eradicating any material they personally considered offensive. At no point in the proceedings, not even when the Office of Equal Opportunity sought court enforcement, would the government be required to prove its allegations beyond a reasonable doubt. One can scarcely imagine a system better calculated to have a chilling effect upon freedom of expression and an open marketplace of publication.
Passage of the Indianapolis ordinance is the culmination of a trend toward repression that has been mounting for more than a decade. It also symbolizes the power of a surprising new tactical alliance between left-wing feminists and political conservatives on censorship issues. Those two disparate factions might disagree on everything else, but they are linked by a determination to eliminate the circulation of values they consider anti-social.
Conservatives have long constituted the principal force behind movements to ban "smut." Their efforts have been blessed by a series of Supreme Court rulings, beginning with Miller v. California in 1973, which reversed the earlier trend toward considering obscenity an unconstitutionally vague concept. Buoyed by these rulings, organizations such as the National Federation for Decency, Morality in Media, and most recently, the Moral Majority, have accelerated their campaign to limit the forms of speech protected by the First Amendment.
Although right-wing elements are less vocal about expressing their Victorian sexual mores than in previous censorship crusades, they still assert that sexually explicit material corrupts the moral fiber of the American republic and undermines a virtuous citizenry. Motivational speaker Zig Ziglar, a prominent pro-censorship activist, expressed that assumption most succinctly in an op-ed piece in the Dallas Morning News when he stated, "Pornography is anti-God, anti-family and anti-woman."
Conservatives like to emphasize the need to shield youngsters from "unwholesome" influences. Jack Rabito, a regional director of the National Federation for Decency, asserted that "what it comes down to is protecting the children." But he then endorsed proposed ordinances in several Dallas suburbs that would bar convenience stores from selling Playboy, Penthouse, or similar magazines to adults as well as minors.
Even a cursory examination of conservatives' arguments reveals a definition of obscenity broad enough to rationalize the suppression of virtually any book, movie, or magazine that dares promote a competing sexual value system. One right-wing state prosecutor in Montana threatened to bring criminal charges against any teacher or librarian who gives a copy of the highly acclaimed feminist health book Our Bodies, Ourselves to a minor. "Americans have genuflected too long at the altar of free speech," he fumed.
The feminist brief against pornography is more complex than the conservative case and—at least superficially—more compelling. Feminists express revulsion at sexually explicit materials that depict females as objects lacking any human dignity or individuality, existing solely for the pleasure of a dominant male. "Pornography, like rape," author Susan Brownmiller argues, "is a male invention, designed to dehumanize women, to reduce the female to an object of sexual access, not to free sensuality from moralistic or parental inhibition."
The dehumanization aspect is alarming enough, feminists contend, but even more sinister is the recent glut of films and publications that glorify violence and show females not only enduring sadistic treatment but deriving great sexual pleasure from it. Feminists note that this theme of sexual violence is not confined to the "hard-core" pornography but has spilled over into mass advertising, "establishment" publications, music videos, and other mediums.
Such developments, critics assert, create a cultural milieu in which degrading or violent treatment of women is regarded as perfectly normal. Moreover, glamorizing anti-female behavior in fictional form may encourage unstable personalities to translate their fantasies into acts of savagery. Feminists indict pornography as a major cause of rape and other acts of violence directed against women. This argument is not new; traditional proponents of censorship have insisted for decades that sexually explicit literature and movies encourage criminal behavior. But feminists make a more comprehensive assertion—that pornography represents a root cause of everyday discrimination against women. That assumption is stated explicitly in the Indianapolis ordinance:
Pornography is a discriminatory practice based on sex which denies women equal opportunities in society. Pornography is central in creating and maintaining sex as a basis for discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women's opportunities for equality of rights in employment, education, access to and use of public accommodations, and acquisition of real property…and contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life.
It is difficult not to sympathize with denunciations of "hard-core" films and publications that depict women in a degrading and offensive fashion. Portrayals of females being bound, whipped, beaten, mutilated, or gang-raped are distressingly common. Men who consume and enjoy such material would seem to have, at the very least, a psychological inability to view women as individuals possessing dignity.
Nevertheless, censorship is not an appropriate solution. The notion that government should be able to ban pornography because it may lead to rape and other sex crimes has unsettling implications. Evidence of a causal link between pornography and violence is inconclusive at best, but even if incontrovertible proof existed, empowering government to prohibit the dissemination of certain ideas and values because they might encourage dangerous behavior is an extremely dubious proposition.
Advocates of legislation limiting freedom of expression on that basis embrace the same logic that drug-law and gun-control proponents employ. Prohibiting marijuana and alcohol is justified, so the argument goes, because some people commit destructive acts while under their influence. Likewise, it is permissible to outlaw possession of firearms because some individuals use weapons in an irresponsible or harmful manner. This seemingly reasonable approach leads inevitably to a limitless array of governmental restrictions on what citizens may do and, in the case of censorship, what they may read. Unless we are willing to permit the extent of our liberties to be governed by how responsibly the weakest members of society exercise those rights, we must reject this rationale for governmental control of individuals' behavior.
There are even more fundamental objections to feminist censorship. Like traditional anti-smut crusaders, women's rights leaders are disturbingly vague in defining what constitutes "pornography"—although in contrast to conservatives, they at least avoid using the term to cover all sexually explicit material.
Several activists have tried to establish a distinction between pornography and "erotica." The latter concept, Gloria Steinem, Catharine MacKinnon, and others contend, is rooted in "passionate love" and requires both free choice and equality. Conversely, pornography implies an unequal power relationship—the degradation and humiliation of women by men. It is precisely that distinction—between sexual equality and domination—that proponents of the Indianapolis ordinance wrote into the legislation. Their definition of pornography is any material that depicts the sexual "subordination" of women.
A distinction between erotica and pornography may be valid and laudable in a philosophical sense, but it does nothing to resolve the lack of legal precision inherent in any censorship statute. Those charged with enforcing restrictive laws may decide that the content of a particular film, book, or magazine is "pornographic" and therefore should be proscribed however much the work's distraught defenders might argue that the material is really "erotic." Once a movement toward repression gains momentum, such subtle distinctions are usually lost.
Feminists insist that their approach transcends the vague and subjective nature of traditional obscenity statutes. During an appearance on the Phil Donahue Show, Andrea Dworkin affirmed that she and Catharine MacKinnon were "extremely concerned about the whimsical prosecution of people for reasons of politics or morality. We wrote a very specific definition of pornography." Dworkin's comments, however, are little more than wishful thinking. Both advocates and opponents of the Indianapolis measure concede that it encompasses materials not considered legally obscene under the standards the Supreme Court established in Miller and subsequent decisions. In that respect, the feminist campaign represents an even more comprehensive assault on freedom of expression.
Indeed, the Indianapolis ordinance scales previously unattained heights of imprecision. Picture the wisdom that municipal civil-rights bureaucrats must possess in order to determine whether a sexually explicit novel depicts a relationship based on equality or if instead the accused work unlawfully shows the female characters to be subordinate. Also imagine the legal nightmare involved in trying to define terms such as "domination," "exploitation," or "postures of…servility, submission or display"—any of which could be used as a justification to ban controversial publications. Critics of the ordinance argue persuasively that those provisions are so ambiguous that zealots could outlaw not only "hard-core" smut but Playboy, Penthouse, and even James Bond movies or Flash Gordon comics.
An equally alarming feature of the Indianapolis measure is the assumption that members of a certain societal group should be able to invoke governmental power to suppress the expression of values they consider demeaning or offensive. If women seize that authority with respect to pornography, should blacks be able to use a similar statute to challenge writings they deem racist? Similarly, should religious denominations be empowered to seek the removal of materials they believe are sacrilegious? In fact, several states did have laws on the books as late as the 1950s banning sacrilegious films or publications, and the rationale for those statutes was strikingly similar to current feminist pro-censorship arguments. Proponents insisted that people should not have to endure the pain and humiliation of witnessing their faith held up to ridicule or contempt.
Carried to its logical conclusion, the doctrine embodied in the Indianapolis ordinance threatens the circulation of unorthodox viewpoints on a host of controversial matters. If a distributor must fear harassment from a civil-rights agency cum censorship board, the most likely response is to avoid carrying any publications or films likely to offend a portion of the community. This dark cloud of intimidation would stifle the expression of precisely those unpopular views that the First Amendment was designed to protect.
Though methods may differ, the movement to make pornography a civil-rights violation harbors the same goal as previous censorship crusades. Traditional book-banners have long used allegations of obscenity as a pretext to exclude literary works that conveyed messages contrary to their own beliefs and values. Even today, reactionaries try to ban materials as diverse as J.D. Salinger's classic novel The Catcher in the Rye, George Orwell's Nineteen Eighty-Four, and the feminist, "anti-family" Ms. magazine on spurious obscenity charges.
Left-wing feminists, despite a rhetorical commitment to free speech, have the same objective—enshrining their values as the only legitimate ones. The Indianapolis ordinance symbolizes their determination to implement one element of a theoretical program that neo-Marxist philosopher Herbert Marcuse outlined in the late 1960s.
Marcuse, the leading intellectual guru of the New Left movement, explicitly rejected the orthodox liberal concept of a First Amendment "marketplace" in which all values and ideas could compete. Instead, he argued that tolerance is a virtue only insofar as it fosters social justice. Tolerance, Marcuse insisted in his famous essay "Repressive Tolerance," can be "indiscriminate and equal with respect to the contents of expression neither in words nor in deed; it cannot protect false words and wrong deeds which demonstrate that they contradict and counteract the possibilities of liberation."
Efforts to establish a just and humane society might well require the use of "apparently undemocratic means," including withdrawing the right of speech and assembly "from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care, etc." Specifically, the liberation of downtrodden groups required placing restraints on their oppressors.
It is no accident that several outspoken feminist partisans of censorship—among them Andrea Dworkin and Lynn Campbell of Women Against Pornography—received their ideological baptisms in the New Left. Their rationale for treating pornography as a civil-rights violation is a classic application of Marcusian principles to the issue of sexism. At the core of their position is the premise that pornography should be proscribed because it undermines the objective of equality for women. Catharine MacKinnon and Andrea Dworkin state that assumption explicitly: "[The ordinance] is a civil law against pornography, but it is also for the equality of the sexes, women's rights, and the integrity and dignity of all persons regardless of sex. And it will do something: empower people and call into question the legal immunity of the exploiters for the first time."
On another occasion, MacKinnon parrots Marcuse's contention that while "pure tolerance"—unlimited freedom of expression—might be valid in a non-hierarchical culture, it is inapplicable in an "unjust" society—in this case, one based on "gender inequality." The latter social structure, she contends, enables the powerful (for example, the pornography industry) to impress its view upon the world, creating an appearance of consent while making "protest inaudible as well as rare." Like Marcuse, she would curtail the rights of the "powerful" in order to enhance the position of the "exploited."
MacKinnon, Dworkin, Susan Brownmiller, and other would-be censors exhibit a Marcusian contempt for "First Amendment absolutists." Their disdain implies—at the least—a belief that certain values are inherently offensive and should be excluded from the arena of public debate. Nothing in their public utterances suggests that they would object to treating "racist" or "fascist" material in the same fashion as pornography—a frightening prospect, given the left's habit of defining terms such as "fascist" in a most expansive manner.
The ideal of equal rights for women is worthy of support, but no value is so sacrosanct as to warrant the forcible exclusion of contrary viewpoints. It is a dangerous precedent to ban the expression of certain ideas because they are insufficiently "progressive" or may offend members of a particular societal group. Given the diversity of political opinion and the multiplicity of racial, ethnic, and religious factions in the United States, that approach is a recipe for repression. Federal Judge Sarah Barker offered a pertinent rebuke to Marcusian zealots in her decision striking down the Indianapolis ordinance. "To deny free speech in order to engineer social change in the name of accomplishing a greater good for one sector of our society," observed the judge, "erodes the freedoms of all and, as such, threatens tyranny and injustice for those subjected to the rule of such laws."
Several decades ago, Supreme Court Justice Oliver Wendell Holmes observed that the proper antidote to offensive speech is not censorship but more speech, and he warned, "We must be eternally vigilant against attempts to check the expression that we loathe." Holmes's dictum is just as valid today. When feminists oppose pornography through boycotts, demonstrations, and efforts to heighten public sensitivity—as they are constitutionally entitled to do—they deserve the support of Americans dedicated to creating a more humane society. But when they form an unprincipled alliance with the traditional enemies of free speech and utilize governmental power to proscribe the circulation of values they dislike, they merit the uncompromising enmity of those who cherish individual freedom.
It doesn't matter whether censorship assumes the guise of orthodox obscenity statutes or the newer and more insidious mask of bogus civil-rights measures. The ultimate consequences are identical—less freedom, more tyranny. Dozens of local governments are now considering restrictive laws patterned after the Indianapolis ordinance. Americans should know better; censorship has flourished before, and we know that it inexorably produces stifling conformity. No intelligent person should wish to repeat that tragedy.
Ted Galen Carpenter is a historian. His articles have appeared in REASON and The Nation.