Catharine A. MacKinnon: The Rise of a Feminist Censor, 1983-1993

On October 18, 1983, a new leader stepped forward to assume command of a moribund movement to suppress sexually explicit material. Catharine A. MacKinnon, a 37-year-old feminist scholar had been asked by the Minneapolis Zoning Commission to testify on a proposed ordinance to restrict the location of "adult" bookstores and theaters. A graduate of Smith College and Yale Law School, MacKinnon had taught at some of the nation's leading law schools, but she was still searching for a tenured position. The latest in a string of one- year appointments had brought her to the University of Minnesota Law School where her course on "pornography" caught the eye of the zoning commission. As she began to testify, the commissioners may have expected the professor to support their efforts to regulate sexually explicit material. But they were only proposing to restrict

access to this material: MacKinnon wanted to ban it. "...I do not admit that pornography has to exist," she told them.1 Acknowledging that some sexually explicit material is protected by the First Amendment, MacKinnon proposed a strategy for circumventing constitutional guarantees:

 

I suggest that you consider that pornography, as it subordinates women to men, is a form of discrimination on the basis of sex. You already have an ordinance against sex-based discrimination in this city. You have the jurisdiction to make

laws against forms of discrimination. 2

 

In a few short sentences, MacKinnon launched a campaign that would dramatically shift the debate over the suppression of sexually explicit material. By arguing that censorship is a legitimate tool for attaining civil rights, she has made herself the leader of a powerful movement to limit the protection of the First Amendment.

Ten years later, Catharine MacKinnon is no longer an itinerant lecturer but a tenured professor at the University of Michigan Law School. As the author of four books and many articles, she is frequently cited in the media as an expert on sexual harassment, rape and other "women's issues." The U.S. Supreme Court has approved a definition of sexual harassment that reflects her belief that speech can create a hostile environment for women in the workplace. She has been even more influential in Canada where her broad definition of "pornography" has been approved by the Canadian Supreme Court. Considered a champion of women's rights both at home and abroad, MacKinnon has become a bona fide celebrity.

Yet MacKinnon remains committed to using censorship as a means of attaining equality. In fact, over the past 10 years, she has broadened her attack on the First Amendment by arguing that it is not only "pornography" but all "hate speech" that should be restricted. In Only Words, a book published by the Harvard University Press in September 1993, MacKinnon argued that censorship in the United States is exercised not by government but by powerful groups that "own" speech. Our society will not achieve real equality until government uses its power to limit the free speech rights of the powerful and gives these rights to women and minority groups who have been "silenced" by their powerlessness, she says.3 As a result, MacKinnon criticizes a key protection of press freedom, New York Times v. Sullivan, as a decision "licensing the dominant to say virtually anything about subordinated groups..."4 She calls for a restoration of the doctrine of group defamation, which bans speech that exposes citizens of any race, color, creed or religion to contempt.

 

MacKinnon's solution is to call for "a new model for freedom of expression" that recognizes the right of women and racial minorities to equality as a limitation on First Amendment rights. These groups should have the right to ban from the schools "academic books purporting to document women's biological inferiority to men or arguing that slavery of Africans should return."5 Not only schools but society itself must be rid of discriminatory speech:

 

Wherever equality is mandated, racial and sexual epithets, vilification, and abuse should be able to be prohibited,  

unprotected by the First Amendment. The current legal distinction between screaming "go kill that nigger" and advocating 

the view that African-Americans should be eliminated from parts of the United States needs to be seriously reconsidered,

if real equality is ever to be achieved.6

 

Obviously, the power of government to regulate speech will have to be broadened:

 

The state will have as great a role in providing relief from injury to equality through speech and in giving equal access to

speech as it now has in disciplining its power to intervene in that speech that manages to get expressed.7

 

MacKinnon concluded by conjuring a vision of a future where "equality is a fact, not merely a word, [and] words of racial or sexual assault and humiliation will be nonsense syllables." Examples of pornography and hate speech will become curiosities that "reside in a glass case next to the dinosaur skeletons in the Smithsonian," MacKinnon said.8

Only Words was met by a wave of harshly critical reviews. In publications all along the ideological spectrum, the critics were nearly unanimous in condemning her proposals.  "This professor at the University of Michigan law school...is a leader of the most radical assault on free speech in American history," columnist George Will said.9 "Her book begins as a denunciation of pornography and swiftly escalates into an all-out attack on the First Amendment," Michiko Kakutani wrote in The New York Times.10 (See Appendix for a list of reviews of Only Words.)  "The law of equality and the law of freedom of speech are on a collision course in this country," MacKinnon observed in Only Words.11 For this, Catharine MacKinnon

can claim much of the credit.

The woman who appeared before the Minneapolis Zoning Commission in 1983 was no ivory-tower academic. Catharine MacKinnon had been surrounded by politics all of her life. Her father had been a Republican Congressman from Minnesota and an unsuccessful candidate for Governor before becoming a federal judge.  MacKinnon demonstrated her own interest in politics while still a student at Smith. During summer vacations, she immersed herself in practical politics, working as an intern for a Republican Congressman, a research director for a Virginia legislative candidate and a researcher for the Councils of Government. On graduation from Smith in 1964, MacKinnon enrolled as a graduate student in political science at Yale.

At Yale, MacKinnon became involved in radical politics. At the time, most student politics were radical. Opposition to the war in Vietnam was still growing. Only a few months before her arrival in New Haven, the killing of students during a protest at Kent State University touched off student strikes on campuses throughout the country. A new "women's movement" had emerged to resume the struggle for equal rights for women. MacKinnon told the New York Times Magazine that she was shaped by this radical ferment:

 

She traces her intellectual and political roots to this time, when she worked with the Black Panthers, studied martial arts, opposed the Vietnam War and found a focus in the nascent women's movement--from which, she often says, "I learned everything I know."12

 

MacKinnon embraced the women's movement. In 1974, she postponed work on her doctoral dissertation to enter Yale Law School where she resolved to do something about the fact that the law had "nothing whatever to do with the problem of sexual inequality as it's experienced by women."13 On graduating from law school, MacKinnon started teaching Yale's first women's studies course and resumed work on her Ph.D. dissertation, which sought to show that feminism could supplant both Marxism and liberalism as a theory of politics.

The early 1970's were heady days for feminists. In the 50 years since women won the vote, there had been little change in their position in society. The majority of women worked in the home, and the majority of those who worked for wages were mired in lowpaying jobs. Women who tried to compete for traditionally male jobs faced discrimination. Men held political power and ran the country. Yet, within a few years of the rebirth of the feminist movement in 1967, women began to score significant victories in the battle for equal rights. In 1973, the U.S. Supreme Court upheld a woman's right to an abortion. Hopes were high as feminists launched a campaign for a new Equal Rights Amendment.

Optimism began to fade, however, when the women's movement suffered a number of serious defeats in the late 1970's. Only four years after Roe v. Wade, the Supreme Court limited the effect of its decision by ruling that government could not be compelled to pay for the abortions of poor women. The tremendous enthusiasm that had been unleashed by the women's movement among women who sought a change in their positions had sparked an equally powerful reaction among those who favored the status quo. As conservative groups organized themselves, the fight for the Equal Rights Amendment foundered. To many, it seemed that the women's movement itself was on the verge of dissolution.

As the prospect of equality between men and women seemed to fade, some feminists began to insist on the importance of protecting women from men. Feminist author Ann Snitow observed the change:

 

In general, there was a shift away from insisting on the power of self definition... to an emphasis on how women are victimized, how all heterosexual sex is, to some degree, forced sex, how rape and assault are the central facts of women's sexual life and central metaphors for women's situation in general. 14

 

Where feminists had formerly cited child-rearing practices and economic inequalities as the fundamental causes of sexism, a growing minority of feminists were arguing that violence and rape were the real problems. Inevitably, a hostility toward sexually explicit material began to grow as some feminists became convinced that it was implicated in a rising rape rate. The first feminist protest against a pornographic depiction of women occurred over a billboard in California in 1976. Three years later, Women Against Pornography was formed in New York. The feminist anti-pornography movement had been launched.

The leaders of the feminist anti-pornography movement regarded men as sexually vicious. In 1979, Andrea Dworkin published the book that became the movement's bible, Pornography: Men Possessing Women. Dworkin described herself as a victim of sexual abuse.15 In Pornography, she argued that the sexual abuse of women is not the exception but the rule: the "male-supremacist ideology" requires men to hurt women. Even consensual "sex," as men defined it, was an abuse. "Sex, a word potentially so inclusive and evocative, is whittled down by the male so that, in fact, it means penile intromission," Dworkin wrote. Consequently, "sex" is not an act of love but an affirmation of male supremacy:
 

In practice, fucking is an act of possession--simultaneously an act of ownership, taking, force; it is conquering; it \

expresses in intimacy power over and against, body to body, person to thing.16

 

Consequently, there is little to distinguish consensual sex from rape. "Romance...is rape embellished with meaningful looks," Dworkin observed in 199217. Dworkin opposed "pornography" because she believed that it reinforced the male supremacist ideology and thus contributed to sexual abuse.

Catharine MacKinnon was strongly influenced by Dworkin's ideas, but she did not immediately endorse the idea of censoring sexually explicit material. The women's movement had always been against censorship. As social critics, feminists had often been the targets of censorship themselves. Margaret Sanger, the founder of the birth control move ment, was prosecuted under the Comstock obscenity laws for sending birth control information through the mails. As late as June 1982, MacKinnon believed that censorship was not the right solution. She believed that "pornography" played a role in the oppression of women and that the women's movement should stop accepting money from Playboy. But she insisted that censorship would not enhance the position of women. "Censoring pornography has not delegitimized it," she wrote. "I want to delegitimize it. What would do that is unclear to me at this time."18 But MacKinnon changed her mind about censorship when she became convinced that pornography was responsible for the failure of the women's movement.

As she later admitted, MacKinnon had been baffled by the failure of women to rally to the cause of feminism. The women's movement was uncovering new evidence every day of the widespread abuse of women by men, but women were failing to respond:

 

Now why are these basic realities of the subordination of women to men, for example, that only 7.8 percent of women

have never been sexually assaulted, not effectively believed...Why don't women believe our own experiences?19

 

In the face of all these facts, "the view that basically the sexes are equal in the society remains unchallenged and unchanged," MacKinnon insisted. Why was feminism on the ropes at the very moment when it should be reaping a whirlwind of female anger? MacKinnon finally came up with an answer. "The day I got this was the day I understood its real message, its real coherence: This is equality for us," she said. But what force is strong enough to deceive women so thoroughly? For MacKinnon, the

answer was pornography.

MacKinnon became convinced that pornography blinds women to their oppression by making sexual abuse seem normal. It brainwashes them:

 

In pornography, there it is, in one place, all of the abuses that women had to struggle so long even to begin to articulate,

all the unspeakable abuse: the rape, the battery, the sexual harassment, the prostitution, and the sexual abuse of children.

Only in pornography it is called something else: sex, sex, sex, sex, and sex, respectively. Pornography sexualizes rape,

battery, sexual harassment, and legitimizes them.

 

As a result, women actually desire sexual subordination. This is not their fault, of course: pornography defines who they are. "Through this process pornography constructs what a woman is as what men want from sex," MacKinnon said. "Men's power over women means that the way men see women defines who women can be," she had observed earlier.20 Therefore, women really have no free will. It is the pornographer who insists that women consent to their degradation:

 

Forget the realities of women's sexual/economic situation. When women express our free will, we spread our legs for the camera.

 

MacKinnon had lacked a reason for urging censorship before. Suddenly, it seemed to her that only censorship could free the minds of women.

It was the City of Minneapolis that gave MacKinnon the opportunity to test her theory. Both MacKinnon and Dworkin, who had been teaching the course on "pornography" with her, testified before the zoning commission in October 1983. Testifying first, Dworkin blasted the commission members for compromising with the pornographers. She also made their task harder by suggesting that their definition of "pornography" was too narrow. "...[W]omen do not just encounter this degradation in

what you are calling adult bookstores. It's in supermarkets; it's in all kinds of places that we go," Dworkin said.21 But the Supreme Court had held that sexually explicit material was protected by the First Amendment unless it was "obscene" according to a three-part test that it had defined in 1973.

MacKinnon offered the politicians a way out of their dilemma. She told them that hearings might be held at which experts would establish how pornography harmed

women. Once the harm of pornography was proved, it could be banned as a violation of the civil rights of women. At least one commission member, who was also a member of city council, thought MacKinnon's proposal a stroke of genius. Charlee Hoyt, who would become the sponsor of the MacKinnon-Dworkin ordinance, found t he proposal "mind-boggling" and "fantastic."22 Following further conversations with the pair, Hoyt introduced a bill authorizing the city to hire them to draft an ordinance.

MacKinnon and Dworkin needed only five weeks to prepare the proposed ordinance that was submitted to the Minneapolis City Council on November 23. The ordinance authorized any woman to sue the producer or distributor of a pornographic work for "trafficking in pornography" on the grounds that "pornography" is a form of sex discrimination. "Pornography" was defined as "the sexually explicit subordination of women, graphically depicted, whether in pictures or words," that also included one or more of nine elements:

 

...women...presented dehumanized as sexual objects, things or commodities;...presented as sexual objects who enjoy

pain of being raped;...presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; women's

body parts are exhibited...such that women are reduced to those parts; women...presented as whores by nature; .

..presented being penetrated by objects or animals...presented in scenarios of degradation, injury, abasement, torture, s

hown as filthy or inferior, bleeding bruised or hurt in a context that makes these conditions sexual. 23

 

The producers and distributors could also be sued for disseminating a work that "directly caused" an assault; or for disseminating a work that contained depictions of someone whose participation had been coerced. Finally, any person who had pornography "

forced" on him or her at work, in school or at home could sue the perpetrator and the institution where the act occurred.

The MacKinnon-Dworkin ordinance was approved by the city council on December 30, five weeks after its introduction. But the swiftness of its passage obscures the bitterness of the fight over the bill. With the help of between 100 and 200 active supporters, MacKinnon and Dworkin organized a campaign that forced the bill through council. MacKinnon and Dworkin hand-picked the witnesses at a public hearing into the alleged harmfulness of sexually explicit material. Asked why critics of this view

had not been allowed to testify, MacKinnon denied that there was another side:

 

Saying a body of research is open to interpretation to which it is not open is not     professional. It is not objective. It is

incompetent. Andrea Dworkin and I did not waste city council's resources with outdated and irrelevant data and

investigations.24

 

When Dworkin did debate the ordinance with a representative of the Minnesota Civil Liberties Union, her supporters booed the opposition.

As the council began consideration of the ordinance, it came under heavy pressure from the activists. Council member Barbara Carlson, a feminist who opposed the ordinance, recalled:

 

We were lobbied very hard. Charlee allowed women to really take over city hall. You couldn't go to the bathroom

without being lobbied. And we were hearing from people in California--movie stars, Rhoda, etc. We were just hysterical

with this whole thing. 25

 

"Their behavior toward anyone who dared to have an opposing view was appalling," Carlson said.26 When conventional methods of pressure didn't seem adequate, MacKinnon's supporters resorted to a takeover of the council chamber. Their choice of

strong-arm tactics, in part, reflected the closeness of the division on the council. Finally, on December 30, the ordinance was approved 7-6 following a last-minute switch by one member of the council.

However, on January 5, despite heavy pressure, including a vigil outside his office by MacKinnon's supporters, Mayor Donald Fraser vetoed the ordinance. The bill was probably unconstitutional, Fraser said:

 

The definition of pornography in the ordinance is so broad and so vague as to make it impossible for a bookseller, movie

theater operator or museum director to adjust his or her conduct in order to keep from running afoul of the law.27

 

Fraser's veto prompted criticism from unexpected quarters. As Carlson reported, MacKinnon and Dworkin had been successful in winning endorsements from liberals in Hollywood and beyond. One of those who had been following the controversy was Harvard Law Professor Laurence Tribe, a liberal constitutional scholar. Tribe urged Fraser to approve the ordinance on the grounds that it was not the duty of the executive to consider the constitutionality of laws presented to him for signature. After Fraser rejected the ordinance, Tribe called the veto "an abuse of the fundamental structure of our system of government."28 Fraser admitted to doubts about vetoing the ordinance. But "when in doubt I probably error the side of the First Amendment."29 Later, when the council passed a revised version of the ordinance, he vetoed it again. By then, however, the main battle over the MacKinnon-Dworkin ordinance had shifted south to Indianapolis where the mayor was one of its biggest boosters.

It is not surprising that the city that finally enacted the MacKinnon-Dworkin ordinance was one of the most conservative in the country. While MacKinnon declared that her ordinance would be a major weapon in the battle for sexual equality, it also

appealed strongly to conservatives who wished to ban sexually explicit material that was not legally obscene under the relatively narrow definitions of the Supreme Court decision. In Indianapolis, the support for the ordinance came almost entirely from

conservatives: it was first brought to the attention of the city council by the Republican mayor, a Presbyterian minister who had been searching for new ways to control sexually explicit material; it was championed on the council by a woman who had been a leader in the fight against the Equal Rights Amendment; and when it appeared that continuing doubts about its constitutionality might block its passage, it was conservative antipornography groups, including one led by a former official of the Moral Majority, that put pressure on the council to pass it. Introduced on April 9, the MacKinnon-Dworkin ordinance passed on May 1 with the unanimous support of the 24 Republican members of the council. All five Democrats opposed it.30

MacKinnon would later deny that she had depended on conservatives to pass her ordinance. "Wherever it is introduced, liberals and conservatives vote both for it and against it," she claimed.31 Yet, in Indianapolis, MacKinnon made no attempt to win

liberal support. According to the Village Voice, she admitted that she made no contacts with local feminists.32 Perhaps she didn't want to face the anger of women like Sheila Seuss Kennedy, a Republican attorney who had once been publicly assailed for her

feminism by the sponsor of the ordinance, Beulah Coughenour. Kennedy was outraged by the ordinance:

 

As a woman who has been publicly supportive of equal rights for women, I frankly find it offensive when an attempt to

regulate expression is cloaked in the rhetoric of feminism. Many supporters of this proposal have been conspicuously

indifferent to previous attempts to gain equal rights for women. 33

 

Not only did MacKinnon accept conservative support, she acquiesced in Coughenour's demand that she play down the "radical" origins of the ordinance. As a result, Dworkin, who dresses in bib overalls as a symbol of her hostility to women's fashions, was not hired as a consultant in Indianapolis. Nor was she called as an expert witness to testify on the ordinance. Only MacKinnon, the well-dressed lawyer, could communicate the right image of respectability. Nevertheless, the passage of the MacKinnon-Dworkin ordinance was hailed by its supporters as a great victory for women's rights.34

The MacKinnon-Dworkin ordinance was challenged as a violation of the First Amendment within minutes of its enactment on May 1. National groups representing booksellers, publishers, librarians and magazine wholesalers and distributors joined several local plaintiffs in filing a court challenge on the grounds that the ordinance would result in the suppression of mainstream books, magazines and movies.35 In their brief, the plaintiffs argued that the terminology of the ordinance was inherently vague. Words like "pornography," "subordination," "graphic," "sexually explicit," "sexual objects," "humiliation," "abasement," "inferior," "conquest," "postures of servility or submission," "women...being penetrated by objects" were subject to different interpretations. The ordinance could be applied to movies like "Dressed to Kill," "Ten," "Star 80," "Body Heat," "Swept Away," "Last Tango in Paris;" books like Witches of Eastwick, The Delta of Venus, Sidney Sheldon's The Other Side of Midnight, Judith Krantz's Scruples, Harold Robbins' Carpetbaggers and any of Ian Fleming's James Bond novels. The American Civil Liberties Union would later argue that the definition of pornography was broad enough to include such classic works of literature as Taming of the Shrew, Othello, Twelfth Night, Tom Jones, The Arabian Nights as well as feminist works by Kate Millet and Susan Brownmiller. It could even be used to suppress works by Andrea Dworkin, the ACLU said.36

In August, U.S. District Court Judge Sarah Evans Barker ruled that the Indianapolis ordinance violated the First Amendment and struck it down. Little had been known about Barker at the time of oral argument because she had only recently been appointed by President Ronald Reagan. American Booksellers Association v. Hudnut was her first case. Her opinion balanced sympathy with the goal of aiding women with a deep commitment to the First Amendment. Barker didn't disagree with the Indianapolis City Council's view "that pornography and sex discrimination are harmful, offensive and inimical" or that "some legislative controls are in order."37 But she rejected MacKinnon's argument that "pornography" is not speech and dismissed the contention that most women were incapable of protecting themselves from either participating in or being victimized by pornography. As defined by the ordinance, "pornography" was clearly speech, and therefore protected by the First Amendment. For that reason alone, the ordinance must fall. However, Barker added another:

 

It ought to be remembered by defendants and all others who would support such a legislative initiative that, in terms of

altering sociological patterns, much as alteration may be necessary and desirable, free speech, rather than being the

enemy, is a long -tested and worthy ally. To deny free speech in order to engineer social change in the name of

accomplishing a greater good for one sector of our society erodes the freedoms of all and, as such, threatens tyranny and

injustice for those subjected to the rule of law. 38

 

In the months ahead, as Indianapolis appealed Barker's decision, many prominent feminists would announce their opposition to the Indianapolis ordinance on very similar grounds. Nobody needed the First Amendment more than feminists, they argued.

By the time of the enactment of the Indianapolis ordinance, feminists around the country had become aware of the MacKinnon's challenge to the feminist tradition of opposing censorship. Some began to speak out against the ordinance. Nan Hunter, a New York lawyer, argued that it would prevent women as well as men from expressing themselves about sexuality. It ran counter to the growth of women's freedom:

 

Feminists ought to be arguing just the opposite--that sexuality and representations of sex present issues which ought to be

in the realm of public discussion and debate. It is especially troubling that, for all the talk of rape and torture, the

ordinance would actually prohibit images of some consensual sexual acts as well.39

 

Susie Bright, the owner of a women's vibrator store in San Francisco, objected to MacKinnon's assumption that women were not interested in sex, too. "We're not just a small group of women being manipulated by dirty old men," she said.40 Feminists who

opposed MacKinnon's views about sex and free speech grew so concerned about the danger they posed to the women's movement that they began to organize groups to core of the Feminist Anti-Censorship Taskforce. In Berkeley, a "pro-sex" coalition held a counter-demonstration to protest feminist anti-pornography activities. The split in the feminist community was so deep that National Organization for Women, while agreeing with MacKinnon's views about the harmfulness of pornography, failed to endorse the Indianapolis ordinance.

In April 1985, the anti-censorship feminists explained their opposition to the Indianapolis ordinance in an amicus brief submitted to the Seventh Circuit Court of Appeals, which was then considering the appeal from Barker's decision. The brief was

signed by prominent feminists of both sexes, including 63 women writers, lawyers and activists from both the liberal and radical wings of the feminist movement. Betty Friedan, the founder of NOW, and the writers Rita Mae Brown, Kate Millet and Adrienne

Rich were among those who joined the brief. The FACT brief, which was written by Nan Hunter and Sylvia Law, challenged the contention at the heart of the Indianapolis ordinance--that "pornography is central in creating and maintaining sex as a basis for

discrimination." A review of the literature on the sources of sexual inequality revealed that there were many, more significant forces perpetuating sexism:

 

The factors they find most significant include: the sex segregated wage labor market; systematic devaluation of the work

traditionally done by women; sexist concepts of marriage and the family; inadequate income maintenance programs for

women unable to find wage work; lack of day care services and the premise that child care is exclusively female

responsibility; barriers to reproductive freedom; and discrimination and segregation in education and athletics.41

 

Misogynistic images of women play a role in their oppression but not the central role. Pornography can't be blamed for creating the English common law tradition of treating women as chattel property.

 

In short, the claim that "pornography is central in creating and maintaining sex as a basis of discrimination" is flatly

inconsistent with the conclusions of most of those who have studied the question. 42

 

But the Indianapolis ordinance was not just wrong about the causes of sexism, it was itself sexist.

The FACT brief charged that the ordinance perpetuated a reactionary view of men and women. Despite MacKinnon's claim to believe that gender was not biological but social, the Indianapolis ordinance was based on the view that male sexuality was fundament ally aggressive. The FACT brief disagreed:

 

Men are not attack dogs, but morally responsible human beings. The ordinance reinforces a destructive sexist stereotype

of men as irresponsible beasts, with "natural physiological responses" which can be triggered by sexually explicit images of

women, and for which the men cannot be held accountable.43

 

Women did not come off much better, since "the ordinance also reinforces sexist images of women as incapable of consent."44 Consequently, the ordinance was unconstitutional not only because it violated the First Amendment but also because "the gender-based classification embodied in the ordinance...assumes and perpetuates classic sexist concepts of separate gender-defined roles..."45 Far from ending sexism, the Indianapolis ordinance would perpetuate it, the FACT brief argued.

A three-judge panel of the Seventh Circuit Court of Appeals unanimously upheld Barker's decision in August 1985. Writing for the Court, Judge Frank Easterbrook said it was unnecessary to address any of the arguments made for the ordinance. Because it aimed to suppress a particular type of speech, the ordinance was content specific and therefore violated the First Amendment:

 

We do not try to balance the arguments for and against an ordinance such as this.  The ordinance discriminates on the

ground of the content of speech. Speech treating women in the approved way--in sexual encounters 'premised on

equality'...-- is lawful no matter how sexually explicit. Speech treating women in the disapproved way--as submissive in

matters sexual or as enjoying humiliation—is unlawful no matter how significant the literary, artistic, or political qualities of

the work taken as a whole.46

 

Easterbrook also criticized the premise of the legislation--that "harmful" speech should be suppressed. He agreed that speech could be harmful-- "a belief may be pernicious--the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions."47 Indeed, the Court agreed that "[d]epictions of subordination tend to perpetuate subordination."48 But the harm that would result from censorship was greater than the harm that could be done by speech, Easterbrook said:

 

Racial bigotry, anti-semitism, violence on television, reporters' biases--these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in popular

culture. Yet all is protected speech, however insidious. Any other answer leaves the government in control of all of the

institutions of culture, the great censor and director of which thoughts are good for us.49

 

What the Indianapolis ordinance did was to take power away from people and give it to government, creating the very thing the Constitution had been adopted to avoid--arbitrary and tyrannical rule.

A year later, the controversy over the Indianapolis ordinance appeared to end when the U.S. Supreme Court summarily affirmed the Seventh Circuit decision. MacKinnon's chances of finding another city to adopt the ordinance seemed slim. Not only had the City of Indianapolis lost the case, it had also been ordered to pay the plaintiffs over $100,000 to reimburse them for the cost of bringing the suit. Together with the city's expenses, this brought the cost of the case to over $200,000. But, far from ending, the debate over the alleged harmfulness of sexually explicit material was only beginning in 1986.

MacKinnon was more determined than ever to pursue the fight. The Indianapolis case had given her a national reputation as a militant advocate of women's rights, and she was eager to convert the women's movement to her views. Her first task was to discredit her feminist critics. In a speech to the National Conference on Women and the Law before the Seventh Circuit decision in 1985, MacKinnon charged that her ordinance was being distorted by her feminist opponents. "It is my view that you are being largely lied to," she said. "I want you to hear the truth straight, just one time."50 MacKinnon denied that under her ordinance all sexually explicit material could be suppressed. The ordinance requires that the material be sexually subordinating and include depictions of specified, subordinating acts, she said. But her critics had misrepresented the definition:

 

Why do women lawyers seem unable to comprehend that all these elements must be there? Why do they distort the law

so ludicrously? Can't they get it right and still oppose it?51

 

The first woman lawyer to misrepresent the ordinance had been Judge Barker, but Barker was "not a feminist," she said.52 Her strongest feelings were reserved for those critics who called themselves feminists:
 

I really want you to stop your lies and misrepresentations of our position. I want you to do something about your

thundering ignorance about the way women are treated. I want you to remember your own lives. I also really want you on

our side. But, failing that, I want you to stop claiming that your liberalism, with its elitism, and your Freudianism, with its

sexualized misogyny, has anything in common with feminism.53

 

She singled FACT out by name. "The Black movement has Uncle Toms and Oreo cookies. The labor movement has scabs. The women's movement has FACT," MacKinnon said.54

 

But it was MacKinnon who was guilty of misrepresentation. Following the Supreme Court's decision, she portrayed her ordinance as targeted narrowly on violent pornography. In March 1986, she told the Conference on Women and the Law in

Chicago that she had specifically exempted non-violent pornography from one part of her ordinance:

 

We were so careful that practices whose abusiveness some people publicly question--for example, submission, servility,

and display--are not covered by the trafficking provision. So we're talking rape, torture, pain, humiliation: we're talking

violence against women turned into sex. 55

 

This exemption mitigated somewhat the chilling effect of her ordinance by exempting the publishers and distributors of magazines like Playboy and Penthouse from civil suits for merely selling the material. (They could still be sued if a model claimed to have been coerced into appearing in a magazine; if it "caused" a sexual crime or was "forced" on someone.) What MacKinnon didn't tell the conference was that she had originally opposed such an exemption. Under both the Minneapolis ordinance and the original

ordinance passed by the Indianapolis City Council, a bookseller could be sued for trafficking in works depicting submission, servility and display, including Playboy and Penthouse.56 The so-called Playboy exemption was forced on MacKinnon during

negotiations over changes that were designed to make the Indianapolis ordinance less vulnerable to challenge after the American Booksellers Association and others filed their lawsuit. In fact, during those negotiations, MacKinnon was pushing to broaden the

definition of pornography. She won her fight when she agreed to accept the trafficking exemption. 57 For public relations purposes, however, MacKinnon sought to play down the impact of her ordinance on non-violent material.

By pretending to focus on violent pornography, MacKinnon was able to present her attack on the First Amendment as less serious than it was. At the same time, it permitted her to identify herself with the American struggle for equal rights:

 

In serious movements for human freedom, speech is serious, both the attempt to get some for those who do not have any

and the recognition that the so-called speech of the other side is a form of the practice of the other side. In union

struggles, yellow- dog presses are attacked. Abolitionists attacked slave presses. The monarchists press was not

tolerated by the revolutionaries who founded this country. 58

 

The Supreme Court decision in the Indianapolis case was "a fairly unprecedented display of contempt," MacKinnon said. But it was not entirely unprecedented. In the case of Dred Scott, the Supreme Court had decided that a slave was not a man. The two cases had a lot in common, MacKinnon claimed:

 

The Indianapolis case is the Dred Scott of the women's movement. The Supreme Court told Dred Scott, to the

Constitution you are property. It told women, to the Constitution, you are speech. The struggle against pornography is an

abolitionist struggle to establish that just as buying and selling human beings never was anyone's property right, buying and

selling women and children is no one's civil liberty.59

 

The implication was clear. The Supreme Court's decision in the Indianapolis case was worthy of no more respect than its decision in the former case. One day, the country would realize that the First Amendment does not protect exploiters of women.

But MacKinnon had to face the fact that the attacks on her ordinance had largely discredited it among liberals. Even before her speech, she had seen her ordinance go down to defeat a third time. In November 1985, without waiting for the Supreme Court to render its verdict, the voters of Cambridge, Massachusetts, decisively rejected the MacKinnon ordinance in a referendum. The vote was 13,031 to 9,419. MacKinnon tried to put a brave face on the results. "They won but not by much," she insisted. "I think that's important for a powerless group. We came very close and got a lot of votes." Yet she could not prevent some bitterness from creeping into her voice. "This vote means the rights of pimps are still more important than the rights of women," MacKinnon said.60  But just when things seemed bleakest, Ronald Reagan came to MacKinnon's rescue.

From its inception, the Reagan administration had been under pressure from conservative anti-pornography groups to appoint a commission that would repair the damage done by President Lyndon Johnson's Commission on Obscenity and

Pornography. In 1970, this commission had concluded a two-year, $2 million investigation into the alleged harmfulness of sexually explicit material by calling for the repeal of all laws banning the sale of sexual material to adults. Reagan finally agreed to appoint a new commission in 1985, but from the beginning the Attorney General's Commission on Pornography suffered from the perception that its findings were a foregone conclusion. Although the commission included a psychologist from Columbia University and a representative of the publishing industry, it was stacked with conservatives. (Its chairman was a former prosecutor who had made his mark prosecuting adult bookstores.) The commission was given $400,000 and ordered to report its findings in one year. It had little choice but to confine its fact-finding to a series of public hearings. Not surprisingly, the Meese Commission, as it came to be called, was greeted with considerable skepticism by the press.

Catharine MacKinnon and the Meese Commission needed each other. The Meese Commission needed testimony about the harmfulness of pornography from people who were not conservative. At the Chicago hearing, the feminist attorney hitupdated 4/2/09