PORNOGRAPHY AND FEMINISM

In 1984 Indianapolis passed an "antipornography civil rights ordinance." pornography was defined thus:

the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following: (1) Women who are presented as sexual objects who enjoy pain or humiliation; or (2) Women [who] are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women [who] are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women [who] are presented as being penetrated by objects or animals; or (5) Women [who] are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women [who] are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.

The ordinance afforded civil, but not criminal, remedies for trafficking in pornography (i.e., sales, exhibitions, or distribution with exceptions for libraries), forcing pornography on a person, coercing a person into pornography, attacking a person because of pornography, or causing such attacks. To some extent, the functional definition of pornography depends on the particular offense under the ordinance. For example, isolated parts of a book would not support a trafficking claim, but they could support a claim against an individual for forcing pornography on someone. Although the ordinance was crafted to protect women against sex discrimination, it is provided that if men, children, or transsexuals were treated in the same manner, they, too, could be afforded protection.

Although there is substantial overlap, Indianapolis's "pornography" is not the Supreme Court's "obscenity." miller v. california (1973) defined obscenity to include material that the "average person, applying contemporary community standards," would find when "taken as a whole appeals to the prurient interest" and "depicts and describes in a patently offensive way, sexual conduct specifically defined by the applicable state law," and that "taken as a whole, lacks serious literary, artistic, political, or scientific value."

Some of the material falling under the sixth category of the Indianapolis ordinance (e.g., women presented as sexual objects through postures or display) might not be ruled offensive under contemporary community standards, though probably most graphic, sexually explicit material that subordinates women and that also falls within the six specified categories would meet the Miller standard for obscenity. Such material would in the general run of cases be thought to appeal to prurient interests and to be patently offensive under contemporary community standards. The only substantial question would be whether particular material had the serious value specified in the Miller test, and it is doubtful that much of it would.

The ordinance's proponents argue, however, that obscenity law is theoretically and functionally bankrupt. As Catharine MacKinnon writes, they doubt "whether the average person, gender neutral exists; [they have] more questions about the content and process of definition of community standards than deviations from them; [they wonder] why prurience counts but powerlessness does not; why sensibilities are better protected than are women from exploitation." They ask, "If a woman is subjected, why should it matter that the work has other value? Perhaps what redeems a work's value among men enhances its injury to women." They contend that the ordinance focuses on the real problem (harm to women rather than offense to the community), provides for more effective enforcement (by allowing women to bring civil actions), and is more precise in its definition of the material to be sanctioned than obscenity law has ever been.

Ironically, despite its efforts at precision, the ordinance has frequently been misread. For example, one respected commentator states that the "sweep of the Indianapolis ordinance is breathtaking. It would subject to governmental ban virtually all depictions of rape, verbal or pictorial.… The ban would extend from Greek mythology and Shakespeare to … much of the world's art, from ancient carvings to Picasso … and a large amount of commercial advertising."

It is not the case that virtually all depictions of rape are sexually explicit—let alone Shakespeare or commercial advertising in any large amount. Some ancient carvings and works of Picasso involve nudity, but how many of them are graphic? Do they involve the subordination of women? Where do they fall under the six categories? Do any of them fall under the first five categories? Could any breathtaking possibilities be cured by editing the sixth category? Is one person's breathtaking possibility another person's exercise of male domination? One suspects in any event that if an ordinance of this character were upheld, its opponents would find creative possibilities for limiting its scope and its proponents would be stressing the breadth of its reach.

Were the ordinance construed narrowly, what would be the case for its constitutionality? Many categories of speech are deemed beneath the protection of the first amendment, including fighting words, some forms of advocacy of illegal action, some forms of defamation, and obscenity. The argument for the ordinance is not that it fits within such categories. Rather, proponents argue that a new category of nonprotection is justified. If defamation causes harm to specific individuals, the proponents argue, pornography causes even more:

The harm of pornography includes dehumanization, sexual exploitation, forced sex, forced prostitution, physical injury, and social and sexual terrorism, and inferiority presented as entertainment. The bigotry and contempt pornography promotes, with the acts of aggression it fosters, diminish opportunity for equality of rights in employment, education, property, public accommodations and public services; create public and private harassment …; promote injury and degradation such as rape, battery, child abuse, and prostitution and inhibit just enforcement of laws against these acts; contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods; damage relationships between the sexes; and undermine women's equal exercise of rights to speech.

Without questioning these harms, the united states court of appeals for the Seventh Circuit declared the Indianapolis ordinance unconstitutional on its face in American Booksellers Association v. Hudnut (1985), and the Supreme Court affirmed without opinion. Hudnut is now the principal case in the pornography area.

Speaking for the Seventh Circuit, Judge Frank Easterbrook accepted the premise that "pornography is central in creating and maintaining sex as a basis of discrimination." Nonetheless, he maintained, the entire ordinance was premised on an unacceptable form of content discrimination: "The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way … is lawful no matter how sexually explicit. Speech treating women in the disapproved way … is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and silence opponents." Proceeding from this reading of the First Amendment, the court stated, "We do not try to balance the arguments for and against an ordinance such as this." The case was over.

From the court's perspective, the amount of harm to women caused by pornography was quite beside the First Amendment point and not to be weighed in the balance. But this reading of current doctrine is idiosyncratic. The categorical exceptions to First Amendment protection already involve discrimination on the basis of point of view.

The treatment of legislation involving advocacy of the overthrow of the government by force and violence is one obvious example. Obscenity is another. For example, appeals to prurient interests are defined as appeals to a "shameful or morbid interest in sex." The Court ruled in brockett v. spokane arcades (1985) that appeals to prurient interests cannot be taken to include appeals to "normal" interests in sex, that is, appeals to an interest in "good, old fashioned, healthy" sex are constitutionally protected, even if they are patently offensive to contemporary standards and lack serious literary, artistic, political, or scientific value. Appeals to an "abnormal" interest in sex are treated differently. For them, when the other requirements are satisfied, it is permissible to bring down the full weight of the law. In short, appeal to one perspective is declared right and appeal to another is declared wrong.

theHudnut court's unwillingness to balance the arguments was thus supported only by misreading the treatment of content discrimination in First Amendment law. Content discrimination in general and point-of-view discrimination are disfavored in First Amendment law, but they are not absolutely disfavored. The Hudnut court had no difficulty showing that pornography did not fall within any of the existing categorical exceptions to First Amendment protection. But the issue presented by pornography legislation is whether pornography's harm justifies the creation of a new categorical exception to First Amendment protection. That was the issue sidestepped by the court's decision of content discrimination.

One approach to the question is by analogy. The Hudnut court did consider that possibility. Obscenity, it observed, has been deemed by the Supreme Court to be low-value speech, and "pornography is not low value speech within the meaning of these cases" because pornography "is thought to influence social relations and politics on a grand scale, that it controls attitudes at home and in the legislature. This precludes a characterization of the speech as low value."

If analogy were the mode of argument, the issue would not be whether pornography falls into a category denominated as low value. The Supreme Court did not use the term "low value" in creating the obscenity exception. The Court maintained in roth v. united states (1957) that obscenity made such a slight contribution to truth that its possible benefits were categorically outweighed by the interests in order and morality. The proponents of pornography prohibitions insist that the same or something even stronger can be said of pornography. In addition, nothing in Roth speaks to the magnitude of the scale upon which obscenity was thought to influence order and morality (let alone in the home or the legislature). Certainly nothing in Roth or any subsequent decision supposes that if obscenity were demonstrated to have profound effects on order or morality, it would then emerge as protected speech.

The real animus of the Hudnut analysis is a deep hostility to the obscenity exception, a hostility that is tempered only by the view that obscenity does not matter much anyway. Thus, when Indianapolis says "pornography matters," the Hudnut court says, "all the more reason to protect it." But this response begs the question. First Amendment values are important; so are those of gender equality. As MacKinnon has observed, a victory for freedom of speech anywhere may be a victory for freedom of speech everywhere, but a victory for sexism anywhere may be a victory for sexism everywhere.

The case for or against pornography legislation cannot be decided in the abstract. Attention must be paid to the character and amount of the harm caused (e.g., whether pornography is cathartic, stimulates aggressive and discriminatory behavior, or both, and to what extent; the extent to which the ordinance would combat that harm (e.g., whether black markets would arise, to what extent the ordinance and its application would legitimize nonpornographic but equally harmful speech, and whether the absence of pornography would cause aggressive behavior); the possibility of less restrictive alternatives (e.g., what the impact of adding a serious-value test would be) and the impact on free speech (e.g., how serious the chilling effect on speech that ought to matter would be and whether the addition of a new category based on content discrimination and the raising of questions about the particular value of speech would require quite heavy justification).

Serious arguments can be made for and against the constitutionality of legislation like the Indianapolis antipornography ordinance. The scandal is that those arguments have yet to receive serious judicial consideration and expression.

Steven Shiffrin
(1992)

(see also: Child Pornography; Dial-a-Porn; Feminist Theory; Meese Commission.)

Bibliography

Emerson, Thomas I. 1985 Pornography and the First Amendment: A Reply to Professor MacKinnon. Yale Law and Policy Review 3:130–143.

Mac Kinnon, Catharine 1987 Feminism Unmodified. Cambridge, Mass.: Harvard University Press.

Stone, Geoffrey R. 1986 Anti-Pornography Legislation as Viewpoint Discrimination. Harvard Journal of Law and Public Policy 9:461–480.

Sustein, Cass R. 1986 Pornography and the First Amendment. Duke Law Journal 1986:589–627.