Only Words, a slim volume by University of Michigan law professor Catharine MacKinnon, published in 1993, might be considered the Bible of the radical feminist anti-pornography movement, providing a theoretical and legal framework to complement the more personal evidence presented in Andrea Dworkin‘s impassioned memoirs.
MacKinnon’s intelligence and thirst for justice are undeniable, but some of her solutions would be challenging to implement in the real world without doing violence to other important legal principles that she is too single-minded to consider. Moreover, her faith in state power is difficult to reconcile with her perception that the impulse to dominate women is a basic part of the male psyche and a pervasive feature of our society. It is hard to imagine power being exercised fairly in such an environment.
Despite these difficulties, the book is worth reading for the way it explodes the self-serving legal fictions that silence the victims of pornography.
MacKinnon argues that pornography makes women’s experience of sexual violation appear unreal, because it has been turned into an image, an object, which seems to belong to the category of mere fantasy or “speech”.
We let ourselves forget that the events on the videotape actually happened to a real person, who is still wandering around in the world, trying in vain to make people believe that she was hurt. But she is silenced in favor of the manufactured image of her and what she supposedly enjoys. The camera gives a false authority to the vision of sexuality that pornography promotes–a vision that identifies sex with power over women. When our culture or legal system treats porn as free expression, it reduces women to a concept created by the pornographer, with no independent existence or rights. (p.3-11)
The original anti-censorship argument against obscenity regulation made more sense when the targets were purely imaginative content such as books. The use of live bodies in pornographic films and magazines should take the issue outside the realm of pure First Amendment debate, but unfortunately it has not. Legal arguments about porn take place in an artificial realm of ideas: what is the “feeling” or “message” that porn expresses? Since the law cannot protect against subjective feelings of offense, the harm done by porn becomes legally invisible. (p.10-11)
At this point MacKinnon makes the creative, but problematic, argument that the law should treat porn as action rather than speech because of its effects, not just the conditions under which it was made. She analogizes it to other speech-acts, such as extortion or words of contractual agreement, which are legally considered actions even though they are accomplished through expression. “A sign saying ‘White Only’ is only words, but it is not legally seen as expressing the viewpoint ‘we do not want Black people in this store,’ or as dissenting from the policy view that both Blacks and whites must be served, or even as hate speech, the restriction of which would need to be debated in First Amendment terms.” (p.13)
If that is the case, what is the legally significant action that pornography effectuates? How does porn enforce (as opposed to just advocating) discrimination against women? Partly, this occurs because it perpetuates a message of female inferiority. But there are a lot of ways to do this that are not pornography. The distinguishing feature of porn is that real things must be done to real people in order to express these so-called ideas. “In pornography, women are gang raped so they can be filmed. They are not gang raped by the idea of a gang rape… Similarly, on the consumption end, it is not the ideas in pornography that assault women: men do, men who are made, changed, and impelled by it.” (p.15)
Here, MacKinnon strays into dangerous territory in arguing that the interaction between men and porn is not fundamentally a communication, but a sexual act. Porn is not something they consider as an armchair philosopher would read a book. Its purpose is masturbation; their use of porn is sex, though solitary sex, and its effects on the brain bypass the cognitive functions and become embedded in their physical responses.
“[A]n erection is neither a thought nor a feeling, but a behavior. It is only pornography that rapists use to select whom they rape and to get up for their rapes. This is not because they are persuaded by its ideas or even inflamed by its emotions, or because it is so conceptually or emotionally compelling, but because they are sexually habituated to its kick, a process that is largely unconscious and works as primitive conditioning, with pictures and words as sexual stimuli.” (p.17)
Now, this is convincing psychology, but it makes bad law in a system premised on individual free will and rationality. However much we all know that people deviate from this ideal, democratic self-governance depends on the legal fiction that each adult, except those who are proven to be mentally incapacitated, is a responsible rational actor. MacKinnon’s argument could be used against any form of media that produces a powerful, instinctive reaction. Video game addicts and mobs aroused by political propaganda might equally fit her description of someone whose intellect and self-control are bypassed by an adrenalin high.
This theoretical framework invites those in power to exclude disfavored groups or ideas from First Amendment protection by selectively applying the neurobiological critique of free will. There is no reason why its application would be limited to porn, since the effects MacKinnon describes are not dependent on the element that makes porn unique, namely that real women are sexually used in its manufacture. Before the camera was invented, men presumably masturbated to erotic drawings or spying through their neighbor’s keyhole; was this really more of a cerebral process than watching a porn film?
MacKinnon would argue that explicit films and photos actually do function in a different way than more stylized interpretations of the sex act. “The erections and ejaculations come from providing a physical reality for sexual use, which is what pornography does. Pornography is often more sexually compelling than the realities it presents, more sexually real than reality.” (p.24) The growing problem of Internet porn addiction even among men with wives and girlfriends lends some support to her claim.
Whether or not her alternative scheme would be enforceable, MacKinnon forces us to realize that the legal boundary between “speech” and “action” is the product of a political power struggle and could be drawn differently. All action has expressive qualities; all speech is in some sense an action. Hierarchy and discrimination are enacted through words and images, even more than brute force. (p.30-31)
One drawback of MacKinnon’s analysis is her exclusive focus on heterosexual porn produced by and for men. It can be argued that all porn is degrading for the participants and dehumanizing for the users. However, it’s hard to fit gay and lesbian porn, or straight porn produced by women for female customers, into her civil-rights model of porn as discrimination against women.
Subsequent chapters, which ask how sexual harassment and libel law might look different if we incorporated the Fourteenth Amendment’s equality guarantees into First Amendment jurisprudence, contain provocative suggestions but similarly suffer from a static, binary division of the world into oppressive white men and oppressed women and people of color.
MacKinnon seems to believe that law is the best way, if not the only way, to readjust the balance of power among unequal social groups. Thus, she pushes hard against the law’s superficial neutrality where it fails to recognize, as Anatole France might say, that it doesn’t do much good to give the poor and the rich an equal right to sleep under bridges. Unfortunately, as the law comes closer to making new rules for the particularity of each case, it also becomes less predictable, which reduces citizens’ security against government overreaching and corruption.
Along the way, however, MacKinnon makes some sharp observations about why obscenity law since the 1973 Miller v. California decision has been ineffective at checking the spread of porn. As porn becomes more outrageous, the Supreme Court’s test becomes less meaningful. The state is supposed to prove that the material arouses the “prurient interest”–that it is sexually appealing to the average person. It’s hard to get people to admit on the witness stand that gang rape turns them on. “The more violent pornography is, the less willing juries and police are to say it is arousing, and more and more pornography is more and more violent, and arousing.” (p.88)
Moreover, the “community standards” by which the court is supposed to judge porn are a moving target, and the pornographers are the ones moving it. “The more pornography there is, the more it sets de facto community standards, conforming views of what is acceptable to what is arousing, even as the stimulus to arousal must be more and more violating to work. In other words, inequality is allowed to set community standards for the treatment of women.” (p.88)
Obscenity jurisprudence is to blame for our current dogma of First Amendment absolutism. “[I]t is in explaining why obscenity should be protected speech, and how it cannot be distinguished from art and literature, that much of the work of absolutism has been done”. (p.89) This enshrines relativism and passivity, such that courts become “increasingly unable to tell what is pornography and what is not, a failing it laments not as a consequence of the saturation of society by pornography, but as a specifically judicial failure, then finally as an impossibility of line-drawing. The stage is thus set for the transformation of pornography into political speech: the excluded and stigmatized ‘ideas’ we love to hate.” (p.90)
Though MacKinnon herself is sometimes guilty of going too far in the opposite direction–expecting more comprehensive recognition of inequality than any impersonal legal system can guarantee–she throws down a worthy challenge to civil libertarians who defend porn without reflecting on the unequal power dynamics of its production and consumption.
Harvard Law Professor Frederick Schauer’s “The Boundaries of the First Amendment”; Government Regulates Many Kinds of Speech
Anti-porn activists have typically had to defend themselves against charges that they are carving out partisan exceptions to a constitutional principle whose effectiveness, maybe even sacredness, derives from its neutrality. Justice, it seems, is never more blind than when she is reading Hustler.
However, one might argue that the application of the First Amendment to pornography is itself a partisan move that is subject to revision, not a principle dictated by the Constitution for all time. Closer study reveals that constitutional relevance is selectively applied, for reasons that have more to do with politics and economics than with pure legal theory.
Rebutting ACLU President Nadine Strossen’s Defense of Pornography
…This incident inspired Strossen to criticize “the censorial impact of such coercive tactics as boycotts.” To call any protest censorship is utter nonsense. In the context of the First Amendment, censorship involves state-based action to prohibit the publication of literature before it reaches the stands. There is a vital distinction between state action and acts of individuals. Dworkin’s campaign involved individuals, myself included, exercising our First Amendment rights to exert pressure on the authors and publisher to change an appallingly misogynist paragraph…
A Response to Wendy McElroy’s “Banning Pornography Endangers Women”
McElroy is right that we’re on dangerous ground when we ask the legal system to look beyond the formalities of consent, to pry into our innermost psyches to determine whether our choices were “truly” free. Since every choice is conditioned by outside pressure, this would be an impossible standard to meet. This points up a contradiction in some radical feminist legal reform projects. If society is so corrupted by patriarchy that even private choices lead to unjust outcomes, we agree that it would be unwise to give more coercive power to the government. We can’t expect the state to act more nobly than the market when both are products of the same corrupt culture.
However, McElroy overreaches when she attempts to argue that porn is not harmful. Because of her individualist mindset, she debates the propriety of porn as if it were merely speech or ideas, ignoring the fact that the actions on the screen were done to real women.