The Rise of a Feminist Censor, 1983-1993
By Christopher M. Finan
With research assistance by Anne F. Castro
"The law of equality and the law of free speech are on a collision course in this country." -Catherine A. MacKinnon
On October 18, 1983, a new leader stepped forward to assume command of a nearly moribund movement to suppress works with sexual content. Catharine A. MacKinnon, a 37-year-old scholar with a one-year teaching appointment at the University of Minnesota Law School, had been asked by the Minneapolis Zoning Commission to testify on a proposed ordinance to restrict the location of businesses that distribute sexually explicit material. MacKinnon was teaching a course on "Pornography" with Andrea Dworkin, a New York writer. But if the commission was expecting MacKinnon to support their efforts to control sexually explicit material, they were mistaken. MacKinnon said the ordinance didn’t go far enough. While it would ban this material in some places, it would permit it in others. It assumed that "pornography" must be permitted to exist somewhere. "...I do not admit that pornography has to exist," MacKinnon said. Pornography is "hate literature" which encourages violence against women. MacKinnon told the commission members that if they were willing to try a new approach they could ban pornography not necessarily spring from "narrow-mindedness, anti-sex bigotry and hysteria." Much of it represents a real concrete experience of sexual violation. Not just the desire to eradicate a bunch of bad ideas that are floating around in some people’s heads, but some concrete violations of women’s civil rights, as to which, to date, we have been entirely frustrated in our ability to be heard.
Yet the career of Catharine MacKinnon would prove that eradicating "a bunch of bad ideas" was precisely what she had in mind. That it should be a woman who emerged as a leader of the censorship movement in the 1980’s is not so surprising. Women had a long history of involvement in "purity" campaigns directed against "Demon Rum" and prostitution. What was surprising was that the leader of this newest effort to protect women from the depredations of sexually aggressive men was an avowed feminist. Traditionally, feminists had opposed censorship as likely to strengthen the hands of those who were hostile to fundamental change in the relationship of the sexes. Catharine MacKinnon’s defense of censorship as a strategy for achieving sexual equality would have profound consequences for both feminism and the First Amendment. It would create a deep and bitter division between feminists who wanted to eliminate pornography at any costs and those who believe that censorship is not the answer to the problems facing women. It would also reshape the debate over censorship. Even those who opposed the goals of feminism adopted the rhetoric of sexual equality in an effort to give their attacks on "pornography" new legitimacy. MacKinnon’s appearance before the Minneapolis commission was the start of a tacit alliance of anti-pornography feminists and conservatives that would reinvigorate the battle for the suppression of heretical ideas in the 1980’s. It would have been hard to imagine such a dramatic change in the 1970’s.
The censors were clearly losing the battle against "dirty books" that had been inaugurated by Anthony Comstock in the 1890’s. Efforts to suppress Ulysses, etc., had proven unavailing. Hugh Hefner’s Playboy magazine had established the existence of a mainstream market for sexually explicit material whose boundaries were soon being pushed back by Penthouse magazine and other competitors. Foreign "art" films like "I am Curious Yellow" began to appeal to a taste for "hard-core" material. Although most states banned the production or sale of "obscene" material, the growing acceptance of sexually explicit material suggested to Charles Rembar, an attorney who had fought some of the most important First Amendment cases, that "the end of obscenity" was in sight. Some believed that the 1970 report of the President’s Commission on Obscenity and Pornography would be the final nail in the coffin of the anti-pornography movement. The President’s Commission had been appointed by Lyndon Johnson in 1968 to determine whether sexually explicit material is harmful. In carrying out its task, the commission spent two years and $2 million. Because there was little basic research on the question, the commission paid for experiments. It concluded that there is no evidence that sexually explicit material causes violence against women and called for the repeal of laws that criminalized the purchase of this material by adults.
The President’s Commission report was bitterly attacked by the country’s leading anti-pornography groups. Two leaders of this movement, Charles Keating, a Cincinnati attorney who had founded the Citizens for Decent Literature, and Father Morton Hill, the founder of Morality in Media, a Catholic anti-pornography group, were members of the President’s Commission. Keating, who had once assailed bermuda shorts on women as a threat to morality, assailed the report as a "charter for pornographers." (Keating would later be sentenced to 12 years in prison for fraud in connection with the failure of the Lincoln Savings Bank.) The new President, Richard Nixon, joined in the denunciation of the report. Neither Congress nor the state legislature showed any inclination to decriminalize obscenity. In 1973, the U.S. Supreme Court reaffirmed earlier decisions declaring that "hard-core" pornography was not protected by the First Amendment and could be banned by the states. While the President’s Commission report marked the highwater mark of liberalization of limits on the First Amendment rights of adults, the anti-pornography groups confronted major obstacles to their efforts to reverse the liberalization that had already occurred. The anti-pornography groups biggest problem was that they were at war with major developments in American society. Beginning in the 1950’s, new techniques of contraception, particularly the invention of "the pill," freed women of the fear of unwanted pregnancy. At the same time, sex researchers Masters and Johnson began to explore sexual inhibition in an effort to enhance sexual relationships. Finally, the liberalization of divorce laws made it possible for couples to terminate loveless marriages. The sudden change in the relationship between men and women was recognized as a "sexual revolution." The leaders of the anti-pornography groups opposed these changes. While their target was pornography, it is clear that the real enemy was the change in social mores that undermined the authority of religious leaders who continued to insist on the sanctity of monogamy and sex for reproduction. It is little wonder that a society that was overwhelmed by the sudden advent of sexual freedom little heeded their jerehmiads against "dirty" books. The last people in the world that the anti-pornography groups could look to for support were the feminists. The feminists were the shock troops of the sexual revolution. In the period from 1969 to 1975, feminism reemerged after a half century of inactivity to challenge marriage, the family, even heterosexuality, as the institutions that oppressed women. In this battle, the state, the upholder of the status quo, was obviously the enemy. This had been apparent from the beginning of feminism. Margaret Sanger, the founder of the birth control movement, was prosecuted under the Comstock obscenity laws for sending birth control information through the mails. Things had not changed in the intervening years. It remained a violation of federal law to mail birth control information until 1971 when the U.S. Supreme Court finally concluded that the law "prescribes pregnancy and the birth of unwanted child as the punishment for fornication." This did not mean that the feminists approved of pornography. 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. However, feminists were far more concerned about the danger of censorship than they were about pornography. In fact, in the late 1970’s and early 1980’s, the National Organization of Women accepted grants from the foundation created by Playboy in the belief that the money compensated for whatever harm might be done by the depiction of women as sex objects. But attitudes toward sexually explicit material of all kinds would change among feminists with the coming of Catharine A. MacKinnon. As early as 1982, she condemned Playboy as one of the forces that oppressed women: I think that gender defines the status of women, that forced sex defines gender, that pornography eroticizes and thereby legitimizes forced sex, and that Playboy is pornography and makes pornography legitimate.
Although she wasn’t fully aware of it herself at the time, Catharine A. MacKinnon had already started down the road toward censorship. MacKinnon didn’t start out as a censor. There was nothing in her background to lead one to expect that she would become a radical of any sort. She was born into an upper middle class family in Minnesota. Her father was active in Republican politics, served in Congress and was an unsuccessful candidate for Governor before being appointed a federal judge. Her mother was a graduate of Smith College. MacKinnon was a credit to her illustrious family. She was a valedictorian in high school. She enrolled at her mother’s alma mater, becoming the third generation of her family to attend Smith. MacKinnon also manifested an early interest in her father’s passion--politics. While in college, she worked as a summer intern for a Republican Congressman, a research director for a Virginia legislative candidate and a researcher for the Councils of Government. When she graduated from Smith in 1969, MacKinnon was in the top 2 per cent of her class. As she headed to graduate school at Yale, where she was the recepient of a National Science Foundation fellowship, she was a daughter who would have made the most demanding parent proud.
At Yale, MacKinnon was profoundly affected by the movement for social change that was animating campuses throughout the country. The anti-war movement was still growing when she arrived in New Haven. In May 1970, the killing of students during a protest at Kent State University touched off student strikes. The women’s movement had set itself apart from the so-called "new Left," declaring that women’s liberation must not be subordinated to "the revolution." 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."
But if MacKinnon was a member of the counter-culture, she was no hippie. She had no desire to follow others who chose to "drop out" of society. On the contrary, she possessed a powerful desire to achieve. It led her to postpone the completion of her doctorate in political science and enter the Yale Law School. But she had not abandoned her interest in a teaching career. On graduating from law school in 1977, in addition to practicing law, MacKinnon started teaching Yale’s first women’s studies course. She still planned to complete her Ph.D. MacKinnon’s ambition was boundless. She wanted to change the world. In particular, she hoped to save feminism from what she and even some of the founders of the women’s movement saw as a growing conservatism. The original leaders of the women’s movement were women who were committed to radical changes in society. However, there were always deep divisions among them, and after 1975, these schisms led the radicals to surrender leadership to the liberal feminists represented by the National Organization for Women. MacKinnon believed that liberal feminism did not understand that the oppression of women was rooted in the social system. It "sees sexism primarily as an illusion or myth to be dispelled, an inaccuracy to be corrected..." It ignores the facts: When I speak of male dominance, I mean as its content facts from this culture. The facts have to do with the rate of rape and attempted rape of American women, which is 44 per cent...Some 4.5 percent of all women are victims of incest by their fathers, an additional 12 per cent by other male family members, rising to a total of 43 per cent of all girls before they reach the age of 18...If you ask women whether they’ve been sexually harassed in the last two years, about 15 percent report very serious or physical assaults; about 85 per cent of all working women report sexual harassment at some time in their working lives. Between a quarter and a third of all women are battered by men in the family. If you look at homicide data, between 60 and 70 percent of murdered women have been killed by a husband, lover, or ex-lover...About 12 percent of American women are or have been prostitutes.
Liberal feminism was ill-equipped to help these women, MacKinnon believed. The major weakness of liberal feminism was that it was seeking a legal equality for women that would not translate into real equality. What the liberals failed to recognize was that the law itself was biased. It insisted on viewing men and women as the same. This permitted some sexual discrimination suits. Thus, if a man and a woman were doing the same job and the woman was being paid less, she could file suit. Since she is doing the same job, there is no rational basis for discriminating against her, and she would win her case. But the law’s insistence on treating men and women as the same could be an insurmountable obstacle to other discrimination claims, for the fact is that men and women are not alike. For example, women get pregnant and men don’t. This kind of difference gives rise to a legal form of discrimination. When an employer refused to grant a maternity leave, the courts approved this discrimination as rational on the grounds that men were not granted similar leaves. Thus, the courts upheld the formal equality of the sexes--men and women received exactly the same treatment--without recognizing that this actually undermined the substantive equality of women by depriving them of a benefit that would permit them to compete equally with men. Liberal feminism seemed to miss the fact that women were different. The campaign for the Equal Rights Amendment was premised on a belief that the elimination of the formal barriers to equality would produce it. The fight for abortion attempted to establish the practice based on the right of privacy, which was shared by both women and men, rather than on the right of women to be equal. In one of the major pay discrimination cases of the day, a feminist testified that the lower pay of women was rationally related to the fact that women want different things from employment than men do. But the crowning proof of the bankruptcy of the liberal feminist approach was the fact that no feminist group filed an amicus brief in the Supreme Court case that established that it is not sexual discrimination against men to grant maternity leave.
As early as law school, MacKinnon saw herself as a legal pioneer who would save feminism. It was during her first year of law school, she told the New York Times, that she discovered that the law "had nothing whatever to do with the problem of sexual inequality as it’s experienced by women." In fact, there were many feminist lawyers already hard at work in an effort to make the law more responsive to the needs of women. (One of them, Ruth Bader Ginsburg, the director of the ACLU Project on Women’s Rights, had already argued seven sex discrimination cases before the U.S. Supreme Court.) But it was true that there was much work to be done. MacKinnon became interested in the issue of sexual harassment when she heard of the case of Carmita Wood, a woman who was forced to quit her job because of harassment by her supervisors. MacKinnon decided to try to get the courts to recognize sexual harassment as a form of sexual discrimination: I felt this is about everything the situation of women is really about-- everything that the law of sex discrimination made it so difficult to address. So I decided I would design something.
In fact, there were other lawyers who were trying to do the same thing. MacKinnon communicated with them, circulated the draft of an argument and received their comments. According to the New York Times, the "collaborative process" that produced MacKinnon’s argument "has left some disagreement about who deserves credit for each new insight." In any event, this process produced MacKinnon’s first book, Sexual Harassment of Working Women, which was published in 1979. The book would form the basis of her early fame, making her much sought after as an expert on sexual harassment. It would also lay out the argument that would soon lead her to demand the censorship of works with sexual content. In the Sexual Harassment of Working Women, MacKinnon urged more than the expansion of the definition of sexual discrimination to include harassment on the job. She proposed the adoption of a new approach to sexual discrimination in general. The problem with the existing theory was that it looked at women as individuals, ignoring their experience as members of an oppressed class. MacKinnon proposed an "inequality" approach: This approach to inequality is marked by the understanding that sex discrimination is a system that defines women as inferior from men, that cumulatively disadvantages women for their differences from men, as well as ignores their similarities.
Once it is recognized that women suffer from a history of discrimination, it becomes easier to recognize discrimination:
A rule or practice is discriminatory, in the inequality approach, if it participates in the systemic social deprivation of one sex because of sex. The only question for litigation is whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status.
A court would no longer be justified in asking whether a particular discrimination is "rational." This culturally biased standard would be replaced by a scientific determination of whether the practice in question hurt women. If so, it would be illegal. As a result, sexual harassment could be outlawed as a practice that undermined sexual equality in the workplace. MacKinnon’s "inequality approach" was intended to be a powerful weapon of affirmative action on behalf of women. Where current law forced women to prove they had been the victims of discrimination, the inequality approach required only that they demonstrate that there was discrimination. MacKinnon was frank in declaring that the purpose of her approach was to give women the power to destroy any obstacle the stood in the way of equality:
...[A]n inequality theory reaches for a political strategy to guide legal intervention on behalf of the less powerful against those who are not likely to relinquish their place...If the problem is inequality, the target is determinate acts, however unconcious, which preserve the control, access to resources, and privilege of one group at the expense of another. They only remedy is redistribution.
The new approach raised some troubling questions, however. While generally laudatory of the new approach in a preface to the book, Thomas I. Emerson, one of MacKinnon’s teachers at the Yale Law School, pointed out some potential problems. MacKinnon’s terms--"inequality" and "disadvantagement"--were "vague." In addition, her theory proposed, in part, the creation of a system of dual rights in which inequality would be measured differently for men and women. What would happen if these rights came into conflict? Still, Emerson gave MacKinnon the benefit of the doubt. "...[T]hese may be only challenges to overcome, not necessarily flaws in her conceptual scheme," he concluded. Emerson was wrong. The flaws in MacKinnon’s scheme soon manifested themselves in the battle over material with sexual content. Once again, MacKinnon would argue that women’s right to equalitymust be granted priority over all other rights. Only four years after endorsing her book on sexual harassment, Emerson would find himself signing an amicus brief opposing MacKinnon’s effort to gut the First Amendment in the name of sexual equality. What Emerson had missed when he endorsed MacKinnon’s book was the ambitiousness of her conceptual scheme. Had MacKinnon confined herself to pointing out the weaknesses of liberal feminism, she would have performed a real service to the cause of women’s rights. But MacKinnon wanted more. She was not offering her inequality theory as a corrective to liberalism but as an alternative to it. At heart, she was more a political theorist than a lawyer. Her detour to law school had not changed her destination. She hoped in her inequality theory to set forth nothing less than a comprehensive theory of sexual oppression: The challenge is to demonstrate that feminism systematically converges upon a central explanation of sex inequality through an approach distinctive to its subject yet applicable to the whole of social life, including class.
Not only did MacKinnon believe that the oppression of women could be explained through a single theory, she also believed that it resulted from a single cause: the male control of female sexuality. "I think that feminism fundamentally identifies sexuality as the primary social sphere of male power," she wrote. MacKinnon’s attack on material with sexual content followed almost inevitably from her belief that sexuality was the root of female inequality. Yet her approach was unusual both for its dependence on sexuality and its understanding of sexuality. MacKinnon’s theory holds that male dominance is based on the power to treat women as sex objects. Male dominance began near the beginning of the species and was probably inaugurated by rape: Here, on the first day that matters, dominance was achieved, probably by force. By the second day, division along the same lines had to be relatively firmly in place. On the third day, if not sooner, differences were demarcated, together with social systems to exaggerate them in perception and in fact, because the systematically differential delivery of benefits and deprivations required making no mistake about who was who. Whether or not dominance was first established against the will of women, rape is the appropriate symbol for what occurred as a consequence, for man used his sexual control of women to bend them to his will. Hence gender, the definition of male and female, is not biological--not the product of innate characteristics--but social, something that has been forced on women by men. In arguing that gender is social, MacKinnon was following the mainstream of feminist theory. What made MacKinnon’s theory so different from other feminist theory was her insistence that sexuality was primarily responsible for sexual inequality. MacKinnon rejected the arguments of feminists who believed that anything other than sexuality was the source of female equality. There were many explanations for the differences between men and women: a minority of feminists believed that these differences stemmed from differences in the biology of the sexes; more saw the female role in reproduction or the role of marriage laws as decisive. But MacKinnon saw sexuality as the first cause: If the literature on sex roles and the investigations of particular issues are read in light of each other, each element of the female gender stereotype is revealed as, in fact, sexual.
It was sexuality that explained the social inferiority of women because sexuality is itself hierarchical. Heterosexuality becomes a force for subordinating women. "Women and men are divided by gender...by the social requirements of heterosexuality," MacKinnon explained. Ultimately, these gender roles are guaranteed by force. "To be rapable, a position which is social, not biological, defines what a women is," MacKinnon wrote. MacKinnon’s theory clearly painted an unflattering portrait of men as sexual predators. Yet it was hardly more flattering to women, who were portrayed as too weak to defend themselves. They are not only weak: they are misguided. They have been brainwashed into accepting subordinate roles and into believing themselves to be inferior to men. This is not their fault, of course: ...[M]ale dominance is perhaps the most pervasive and tenacious system of power in history...Its point of view is the standard for point-of- viewlessness,its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its control as the definition of legitimacy.
Women see the world as men want them to see it. It follows that while they may believe themselves to be free, women cannot exercise free will. This is particularly true of sexual intercourse, which in a world of male dominance operates within an atmosphere of "mandatory heterosexuality." No matter who their sexual partner may be--lover, husband or rapist--women are coerced into sexual relations. "[S]exual intercourse under conditions of gender inequality...[is] an issue of forced sex," MacKinnon wrote in 1983. In fact, MacKinnon seemed to doubt even the possibility of consensual heterosexual sex, involving as it does the "penile invasion of the vagina." Penetration is probably synonmous with rape: It is difficult to avoid the conclusion that penetration itself is known [by women] to be a violation and that women’s sexuality, our gender defintion, is itself stigmatic. If this is so, the pressing question for explanation is not why some of us accept rape but why any of us resent it.
Thus, it is may not be possible for a woman to sleep with a man without subordinating herself to him. In a world where male dominance shapes all relationships, it is not surprising that the state is merely a cipher of male power. The state has no more independence for MacKinnon than it did for Marx. For Marx, the state was the puppet of the bourgeoisie; for MacKinnon, it is the puppet of men: The law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender, through its legitimizing norms, relation to society, and substantive policies.
Not even the law against rape is primarily concerned with protecting women. Rape is a crime not because it violates a woman but because it violates the property interest of another man. "To the extent that possession is the point of sex, rape is sex with a woman who is not yours...," MacKinnon argues. The male bias of the law is also clear in the way that rape is defined, for if the rapist believes that the woman has consented to sex, he cannot be convicted. Yet, rape is what men are trained for. It expresses "the images of masculinity that mean their identity, for which they are otherwise, trained, elevated, venerated and paid." [M]en are systematically conditioned not even to notice what women want. They may have not a glimmer of women’s indifference or revulsion. Rapists typically believe the woman loved it.
Like women, men are incapable of distinguishing consent from coercion, intercourse from rape. The male bias of the law is also evident in the statutes dealing with pornography and prostitution. On their face, these prohibitions against obscenity and prostitution appear to be designed to protect women. In fact, their only purpose is to serve the sexual interests of men: If part of the kick of pronography involves eroticizing the putatively prohibited, obscenity law will puttively prohibit pornography enough to maintain its desirability without ever making it unavailable or truly illegitimate. The same with prostitution.
Clearly, no reform can loosen the control of a ruling class that is so dominant that it has to play tricks on itself to keep sex interesting. There must be a revolution: However autonomous of class the liberal state may appear, it is not autonomous of sex. Justice will require change, not reflection--a new jurisprudence, a new relation between life and law.
MacKinnon made no bones about the one-sidedness of this new jurisprudence: it would be no more "objective" than existing jurisprudence that favored men; it would be "female jurisprudence." While MacKinnon saw herself as a pioneering feminist, many of her ideas were actually throwbacks to the Victorian era. It was during this period, when men were commonly portrayed as sexual beasts and women as the victims of their passions, that feminism first advanced its demands for political equality. Some feminists argued that women should be given the vote precisely because their basic nature was superior to that of men and would therefore elevate politics. This view of the essential differences between men and women was less common among the "second wave" of feminism, which began in 1969. However, even among the radical feminists of the early 1970’s, there were some who echoed the "essentialism" of earlier feminists. In contrast to the early feminists, however, they increasingly rejected politics as a path to sexual equality. Some argued that only by withdrawal from men--the acceptance of either abstinence or lesbianism--and the cultivation of women’s special gifts would women ever realize their full potential. MacKinnon explicitly rejected essentialism. In theory, she believed that gender was purely social--that the definition of what makes a man or a woman could change. She signaled her belief in this principle by commiting herself to fight for sexual equality. Yet, there was an emotional undercurrent to her writing that weakened her theoretical position. Her unrelieved portrayal of men as sexual predators raised questions about whether she really believed that men could ever accept sexual equality with women. While she seemed somewhat more hopeful that the degraded condition of women could be raised, she had doubts that women could be appealed to rally in their own cause. As a result, MacKinnon’s political options were severely limited. Her pursuit of a female jurisprudence reflected a belief that a minority of enlightened feminists could use the law to liberate benighted womanhood. Her attack on pornography reflected her frustration with the political options available to her. It was not basically an attempt to end sexual violence against women. After all, as she noted, this had been the lot of women from the beginning, long before the existence of pornography. Rather, it was an effort to awaken women to their degradation.
Some feminists feared the drift toward separatism. In 1979, Ellen Willis, a writer for the Village Voice who had been a founding member of one of the earliest radical feminists groups, warned that the founding of Women Against Pornography could come back to haunt the women’s movement. The biggest obstacle to sexual equality was the sexual double standard that said that men and women differ fundamentally in their sexual natures: it was because men were sexually aggressive that women had to be protected from them by the institutions of society--their fathers, their husbands and the law. This weakness was subsequently cited as the reason that women could not be treated as equals. Willis insisted that eliminating this double standard was the main objective of the women’s movement. Its premise is "that men’s confusion of sexual desire with predatory aggression reflects a sexist system, not male biology; that there are no good (chaste) or bad (lustful) women, just women who are, like men, sexual beings," she wrote. Now, the anti-pornography movement was giving new life to the double standard. "In the movement’s rhetoric pornography is a code word for vicious male lust." The danger was clear: "Despite the insistence of WAP organizers that they support sexual freedom, their line appeals to the anti- sexual emotions that feed the backlash."
Catharine MacKinnon initially shared some of the misgivings over the growth of the feminist anti-pornography movement. She was familiar with the work of Andrea Dworkin, whose 1981 book, Pornography: Men Possessing Women, became the Bible of the anti-pornography movement. Moreover, as she wrote in Signs in 1982, she agreed with Dworkin’s premise that sexuality "is the linchpin of gender inequality." Pornography clearly played a role in the oppression of women. MacKinnon argued that the women’s movement should stop accepting money from Playboy. Yet as late as June 1982, MacKinnon did not believe in censorship. "Censoring pornography has not delegitimized it," she wrote. "I want to delegitimize it. What would do that is unclear to me at this time." MacKinnon’s objections to censorship, however, were obviously practical. Censorship didn’t work. But she would change her mind about the efficacy of censorship. She would come to believe that it was the only hope for the women’s movement. MacKinnon was increasingly troubled by the paradoxical behavior of women. The women’s movement was uncovering new evidence everyday of the widespread abuse of women by men. But women were failing to respond: Now why are these basic realities of the subordination 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?
In the face of all these fact, "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. Although she did not use the word, MacKinnon described women as suffering from what Marx had called "false conciousness." The source of this false conciousness was pornography. MacKinnon has been criticized for seeing pornography as the root of sexual inequality. How could pornography have created sexism when mass consumption of pornography is only a few decades old, her critics have asked. But for MacKinnon, pornography is not the cause of male dominance. It is the means by which men brainwash women: I could describe this, but I couldn’t explain it until I started studying a lot of pornography. 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, prostitution, and child sexual abuse; it thereby celebrates, promotes, authorizes and legitimizes them.
The process of persuading women that they should desire sexual subordination is actually more basic than brainwashing. In a very real sense, these instructions are built in. "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. Therefore, women really have no free will: 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. Before she could suppress "pornography," however, MacKinnon would have to define it. The difficulty of defining pornography was apparent from the first. At the Minneapolis Zoning Commission meeting in October 1983, the commission members were considering restricting the location of "adult" businesses that primarily sold sexually explicit material. Andrea Dworkin objected to the idea of calling these busnesses "adult" bookstores and movie theaters: I think you should say that that what you are allowing is material distinguished or characterized by an emphasis on matters depicting, describing, or relating to the sexual abuse and exploitation of women, that you are allowing hate literature directed at women, that you are allowing the celebration of rape, the promotion of rape, the advocacy of rape; that you are going to allow in certain areas of your city--permit--you, the City Council, are going to permit--the dissemination of materials that uphold the inferior status of women; that suggest that women are dirt, are filth; that subject women to treatment from which we have reguatlions protecting dogs and cats.
"Pornography" was not confined to such businesses, Dworkin added. It could be found throughout the city: ...[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...It is the abuse of women and it’s in virtually every supermarket in Minneapolis where women go and where women and children go together.
Dworkin’s testimony only made the commission’s task more difficult. How could it restrict such a broad range of material without violating the First Amendment? Catharine MacKinnon stepped forward to give them the answer. MacKinnon told the commission that eliminating "pornography" was merely a definitional problem. 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. Yet the Supreme Court had also held that it was illegal to violate civil rights. If "pornography" could be shown to violate the civil rights of women, it might be banned: 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.
MacKinnon said that hearings might be held at which experts would establish how pornography harmed women. At least one council member thought MacKinnon’s proposal a stroke of genius. Charlee Hoyt, who would become the sponsor of the MacKinnon-Dworkin ordinance in the city council, found the proposal "mind- boggling" and "fantastic." But MacKinnon had outlined an approach for circumventing the First Amendment without actually defining "pornography." It was only after she and Dworkin had been hired as consultants to draft an ordinance that they finally defined their terms. 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 and 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 comodities;...presented as sexual objects who enjoy pain or humiliation;...presented as sexual objects who experience sexual pleasure in 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 degradtion, injury, abasement, torture, shown as filthy or inferior, bleeding bruised or hurt in a context that makes these conditions sexual."
Producers and distributors could also be sued for disseminating a work that "directly caused" an assault; and 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 without adequate consideration. 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 irreleveant data and investigations.
When Dworkin did debate the ordinance with a representative of the Minnesota Civil Liberties Union, her supporters were present to boo 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.
"Their behavior toward anyone who dared to have an opposing view was appalling," Carlson said. When conventional methods of pressure didn’t seem adequate, MacKinnon’s supporters resorted to a take over of the council chamber. Their 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.
Fraser’s veto prompted criticism from unexpected quarters. MacKinnon and Dworkin had been successful in winning endorsements for their ordinance in Hollywood and beyond. One of those who had been following the controversy was Harvard Law Professor Laurence Tribe, a liberal constitutional scholar. He had urged Fraser not to veto 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. He called the veto "an abuse of the fundamental structure of our system of government." Fraser admitted to doubts about vetoing the ordinance. But "when in doubt I probably err on the sie of the First Amendment." 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 appealed to conservatives who wished to ban sexually explicit material that was not legally obscene under the relatively narrow definitions of the Miller 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 a 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 anti-pornography 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. MacKinnon would later deny that she had depended on conservatives to pass her ordinance. "Whereever it is introduced, liberals and conservatives vote both for it and against it," she claimed. 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. Perhaps she didn’t want to face the anger of women like Sheila Seuss Kennedy, a Republican feminist attorney who was outraged by the identification of feminism with censorship: 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.
(Kennedy was well acquainted with the sponsor of the ordinance, Beulah Coughenour. Coughenour had once publicly assailed her for her feminism.) Not only did MacKinnon accept conservative support, she acquiesced in Coughenour’s insistence that she play down the "radical" origins of the ordinance. Thus, Dworkin, who dresses in bib overalls as a symbol of her hostility to "fashion," 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. The MacKinnon-Dworkin ordinance was challenged as a violation of First Amendment rights within minutes of its enactment on May 1. A broad array of groups representing booksellers, publishers, librarians, 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. 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 interpreted as applying 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 Flemming’s James Bond novels. The American Civil Liberties Union would later argue that the ordinance could apply to such classic works of literature as Taming of the Shrew, Othello, Twelth 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. In August, U.S. District Court Judge Sarah Evans Barker declared 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 to achieve equal rights 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." But she rejected MacKinnon’s argument that "pornography" is not speech but conduct--an act that encourages discrimination--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 legisaltive 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.
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. Thus, it ran counter to the growth of women’s freedom: Feminists ought to arguing just the opposite--that sexuality and representationsof 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.
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. 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 oppose the feminist anti-pornography movement. In New York, writers and lawyers formed the core of the Feminist Anti-Censorship Taskforce. In Berkeley, a "pro-sex" coalition held counter-demonstration to protest anti-feminist activities. The split in the feminist community was so deep that the National Organization of Women, while endorsing MacKinnon’s views about 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 activitists 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 began by characterizing the Indianapolis ordinance as a throw back to the Victorian view of sexuality: The Indianapolis ordinance is squarely within the tradition of the sexual double standard. It allows little room for women to openly express certain sexual desires, and resurrects the notion that sexually explicit maerials are subordinating and degrading to women.
The claim that new scientific studies had definitely established the "harmfulness" of sexually explicit material could not obscure this fact. The City of Indianapolis had cited the social science data in "highly selective and grossly distorting ways," the brief charged. The FACT brief 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;l lack of day care services and the premise that child care is exclusively female responsibility; barriers to reproductive freedom; and discrimination and segregation in educationa and athletics.
Misogynist 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.
Not only was the Indianapolis ordinance not part of the solution of sexism, it was part of the problem. 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 fundamentally 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 respsonses" which can be triggered by sexually explicit image of women, and for which the men cannot be held accountable.
Women did not come off much better, since "the ordinance also reinforces sexist images of women as incapable of consent." Thus, 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..." Far from ending sexism, the Indianapolis ordinance would perpetuate it, the FACT brief argued. But the First Amendment was also important to women, and MacKinnon had compromised the protection that it provided women. "[T]he ordinance incorporates...[a] standard for censorship that can as readily be used to curtail feminist speech about sexuality or to target the speech of sexual minorities as to halt hateful speech about women," it concluded. 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 humilation--is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole.
Nevertheless, Easterbrook went on to address the fundamental misreading of the Constitution that underlay the Indianapolis ordinance. The supporters of the ordinance were arguing that "harmful" speech should be suppressed. Easterbrook 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." Indeed, the Court agreed with the premise of the ordinance that "[d]epictions of subordination tend to perpetuate subordination." But the harm that would result from censorship was greater than the harm that could be done by speech: 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.
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. The way the Court upheld the lower courts itself seemed to signify a desire to underline the finality of the ordinance’s demise. Summary affirmance of a decision was rare. The Court issued such a ruling only when all of the Justices agreed that there was no merit in the appeal. The 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 br> the suit. Together with its own expenses, this brought the cost of the case to over $200,000. Donald Miller, the council majority leader, acknowledged that this was likely to discourage attempts to pass new legislation that might be unconstitutional: I doubt we’ll ever spend that kind of money again. People will say, "Well, do we really want to go all the way to the Supreme Court on this one, too, and to spend all that money on making lawyers rich?"
But, far from ending, the debate over the alleged harmfulness of sexually explicit material was only beginning in 1986. Conservative anti-pornography groups were pressuring the administration of Ronald Reagan to do something about sexually explicit material. As MacKinnon had already demonstrated in Indianapolis, she was ready to seek the support anywhere she could find it. If she could not win the > support of liberals, she was ready to make common cause with conservatives who were hostile to women’s rights. The Indianapolis case convinced MacKinnon that there was little hope of winning unified support from the feminist movement. Certainly, she did nothing to try to mend fences with her feminist critics. In fact, she was furious at them. 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." 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 defintion: 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?
The first woman lawyer to misrepresent the ordinance had been Judge Barker. "She misquoted and mischaracterized the ordinance under review, blamed the victims and treated the law of sex discrimination as if it did not exist," MacKinnon observed later. But Barker was "not a feminist," she said. 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.
These women were "house niggers who side with the masters," she said. 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. But MacKinnon was guilty of misrepresentation herself. 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.
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 a bookseller could be sued for trafficking under the Minneapolis ordinance and the original version of the Indianapolis ordinance. Far from having decided to err on the side of safety with regard to trafficking, the so-called Playboy exemption had been forced on MacKinnon during negotiations over changes that were designed to make the ordinance less vulnerable to challenge after the American Booksellers Association and others filed their challenge to the law. 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. 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 justified her in calling for extreme measures: 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.
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 said: 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. The implication was clear. The Supreme Court’s decision in the Indianapolis case was worthy or no more respect than its decision in the former case. One day, the country would realize that the First Amendment did not protect exploiters of women. If the Indianapolis case was the Dred Scott of the women’s movement, MacKinnon was its John Brown. Brown was the abolitionist who led an assault on Harper’s Ferry in the belief that he would spark a slave rebellion. When the slaves failed to rally, Brown was captured. MacKinnon knew what it felt like to lead a poorly-attended insurrection. 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. It was clear now that she could not count on liberals for support. But as she had shown in Indianapolis, MacKinnon was ready to seek support whereever she could find it. It was the administration of Ronald Reagan, one of the most conservative Presidents of the 20th century, that offered MacKinnon her next opportunity. 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 Pornogaphy, which had concluded after a two-year, $2 million investigation that sexually explicit material is harmless to adults. But the new commission had a credibility problem. It was clear that the Attorney General’s Commission on Pornography was destined to declare sexually explicit material harmful. 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. As a result, the commission 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 identifiably conservative. At the Chicago hearing, the feminist attorney hit the spot. "Biting off her words as if they were bottlecaps," MacKinnon turned in her usual "flashy rhetorical display." MacKinnon, in turn, was looking for support for her ordinance. Both objectives were achieved. When the Meese Commission’s final report was issued in July 1986, it included a recommendation that the state legislatures consider the MacKinnon approach. (The report failed to note that the Indianapolis ordinance had been rejected by the Supreme Court in February.) MacKinnon hailed the Commission’s work. "Today could be a turning point point in women’s rights," she said. But the Meese Commission report was hardly a victory for MacKinnon. Where she had criticized obscenity laws as moralistic, the first 36 recommendations of the Meese Commission called for strengthening the obscenity laws. The commission made 92 recommendations in all. The MacKinnon approach was Number 87. MacKinnon’s admiration for the Meese Commission went beyond its general aims to a defense of its most controversial action. In February 1986, the Commission sent a letter to 23 leading corporations, including CBS, Time, Ramada Inns, RCA, Coca-Cola, 7-Eleven, Rite Aid, Dart Drug Stores and National Video, asking them to respond to a charge made during the Los Angeles hearing that they were involved in "pornography distribution." The charge had been made by the Rev. Donald E. Wildmon, a Methodist minister from Tupelo, Mississippi, who directs the American Family Association, a conservative pro-censorship group. Without identifying the source of the charge, the Commission letter informed the companies that unless they responded to Wildmon’s charge they would be identified as "distributors" of "pornography" in its final report. Several lawsuits were filed charging the Commission with attempting to establish a blacklist to coerce the corporations to withdraw First Amendment-protected magazines like Playboy and Penthouse. A federal judge ordered the Commission to retract the letter and barred it from issuing any lists of retailers. MacKinnon later endorsed the Commission’s letter. She scoffed at the court’s concern for the First Amendment rights of the plaintiffs: Distributors are so intimidated by being asked, in words, if they sell pornography that they might choose not to sell it, but pornography itself intimidates no one, invades no protected rights, because it is only words.
The Commission had done nothing wrong, MacKinnon insisted. It was Playboy that was trying to cover up embarassing testimony. "Playboy and others sued the Attorney General’s Commission on Pornography to keep the commission from publishing information testified to before the commission," she said. The only purpose of the letter was to ask "the retailer if they did, indeed, sell pornography and if so why." It is significant that MacKinnon did not mention that it was Wildmon who made the original accusation. While she supported the efforts of conservative anti-pornography groups, MacKinnon could not afford to be linked with them openly. Nor would Wildmon have wished to acknowledge MacKinnon as an ally. Nevertheless, MacKinnon played a critical part in helping conservative censors like Wildmon reshape their arguments for a new age and bears some of the responsibility for their rapid growth in the 1980’s. The conservative anti-pornography groups were hopelessly old-fashioned as they entered the 1980’s. They were primarily religious groups whose attacks on sexually explicit material were a defense of traditional values--virginity, monogamy and the patriarchal family. Even the names of these groups betrayed their concern for morality. Charles Keating had founded the Citizens for Decent Literature in Cincinnati in 19xx. Donald Wildmon named his group the National Federation for Decency in 1977. In a world transformed by the sexual revolution, people rightly suspected that what these groups opposed was not pornography but sexual freedom. They were the new prohibitionists intent on forcing people to observe their personal moral code. Clearly, the anti-pornography groups needed to retune their pitch. It was here that MacKinnon played a critical role. MacKinnon gave the anti-pornography movement a new vocabulary. After the Indianapolis battle, no one who advocated censorship assailed the immorality of sexually explicit material. They talked about the "harm" of pornography, particularly its effect on women and children. Practically overnight, pornography was transformed from a sin to a sociological evil. The change in the rhetoric of the anti- pornography movement was already clear in the Meese Commission report. While the civil rights approach was only one of 92 recommendations, the Meese Commission had thoroughly assimilated MacKinnon’s argument, condemning "non- violent materials depicting degradation, domination, subordination or humiliation." The conservative anti-pornography groups scrambled to exploit the new argument for censorship. "No longer can the media or anyone else say that those opposing pornography are "extreme right-wing fundamentalists," the Rev. Jerry Kirk, executive director of the National Coalition Against Pornography, wrote in August 1986. The fight had been "mainstreamed": Pornography is not a conservative or liberal issue. It is an issue for everyone who cares about the well-being of children, women, men and families. For some, it is a religious issue. For others, it is a moral issue. But for everyone, pornography is a public safety issue: the safety of our children from sexual abuse and molestation, our women from rape and degradation and our families from disease and disintegration.
Donald Wildmon sought to appeal to this broadened constituency in 1988 when he changed the name of his organization from the National Federation for Decency to the American Family Association. He would succeed. By 1992, the budget of the AFA had grown to $7 million. With the fig leaf provided by Catharine MacKinnon, the conservative anti- pornography movement proceeded to wreck havoc with First Amendment rights over the next six years. The first to fall victim was the Southland Corporation, the owner of the 7-Eleven convenience store chain. Wildmon had been trying to get Southland to stop selling Playboy and Penthouse since 1984. When the Meese Commission threatened to identify Southland as a distributor of pornography, the corporation finally surrendered, ordering its 4,500 7-Eleven stores to pull the magazines and recommending that 3,600 franchise stores do the same. Southland said it was responding to evidence provided by the Meese Commission that showed a link between "adult magazines and crime, violence and child abuse." Within months, six of the chains that had received the same letter as Southland and 34 smaller chains also decided to pull Playboy and Penthouse. By August 1986, 17,000 stores no longer carried the magazines. The removal of Playboy, Penthouse and other men’s "sophisticate" magazines from stores across the country had a domino effect, causing the removal of other magazines that were controversial for one reason or another. Magazines about rock and roll music, several teen magazines, the swimsuit issue of Sports Illustrated, and issues of American Photographer and Cosmopolitan were removed from sale in some parts of the country in the panic set off by the Meese Commission letter.
The impact of the Meese Commission grew year by year. The number of obscenity bills introduced around the country jumped dramatically as state legislatures responded to recommendations that they increase the penalties for selling obscene material: the commission proposed that a second offense should be a felony, and that obscenity punishable under racketeering laws, so that the assets of the business could be seized as punishment. Over half of the major obscenity bills considered in 1987 were inspired by the Meese Commission report. Yet no state followed the recommendation that they consider the civil rights approach to sexually explicit material. Meanwhile, the Reagan administration carried through on its promise of stiffer enforcement of the federal obscenity laws. Following another Meese Commission recommendation, a National Obscenity Enforcement Unit was created in the Justice Department. By 1990, its budget would grow to $1.7 million and its nine attorneys could claim credit for having forced a number of distributors of sexually explicit material out of business. The NOEU’s approach involved threats to bring simultaneous multiple prosecutions for violating the obscenity laws unless the distributor agreed to stop distributing all sexually explicit material, including Penthouse, Playboy and Joy of Sex. Conservative anti-censorship groups flowered. The censors had acquired powerful new weapons in their battle against sexually explicit material. But their most important asset was a new respectability. For this, they could thank MacKinnon and her followers. Yet MacKinnon did not immediately benefit from her new prominence. Although she received offers of one-year teaching assignments at the country’s most prominent universities, she complained that the radicalness of her views had prevented her from securing a permanent job. In 1982, MacKinnon said her career was an example of how difficult it is for a radical feminist to "make it" in academia: I am told, see, a feminist can teach at Harvard, Yale and Stanford Law Schools. How can academia, legal education, law be antiwoman? This ignore the precariousness and threat of our situations as well as what we have been through...My work is considered not law by lawyers, not scholarship by academics, too practical by intellectuals, too intellectual by practitioners, and neither politcs nor science by political scientists.
MacKinnon might also have noted that she had only graduated from law school five years earlier (she would not receive her Ph.D. until 1987) and that she had joined the labor force at a time when tenured academic jobs were in extremely short supply. But she insisted on believing that her advance was being blocked by political opposition. According to the New York Times Magazine, it is significant that "in 1986, the year the Supreme Court ratified MacKinnon’s first contribution to American law, she had not paying job." (It was in 1986 that the Supreme Court endorsed the view advanced by MacKinnon and others that sexual harassment was a formal of sex discrimination.) The Times did not note that 1986 was also the year that the Supreme Court rejected MacKinnon’s views on the limits of free speech. Although MacKinnon’s claim that she was the victim of discrimination based on her ideas is exaggerated, there is no question that there was a reluctance to hire her. This was clearly demonstrated when students at Yale Law School, her alma mater, petitioned for her appointment to a one-year position for the 1988-89 academic year. The students argued that without MacKinnon, there would be no one teaching from a feminist perspective. Members of the faculty opposed the appointment on the grounds that MacKinnon was not sufficiently scholarly. There was also fear that she would polarize the law school. One professor warned that MacKinnon would make Yale "a theater of ideological warfare, as a well as an insufficiently supervised playground of the mind in which we lose our capacity to resist the charms of superficial and passing intellectual fads." The appointment, which required the endorsement of two thirds of the faculty, was approved by the margin of a single vote. If MacKinnon’s views held her back, they did not hold her back for long. While they might not accord with the views of older faculty members, who were overwhelmingly opposed to censorship, they were consistent with a growing intolerance for free speech by many students and younger members of the faculty. In the late 1980’s, a number of well-publicized incidents suggested an upsurge in racial conflict at colleges and universities around the country. Led by the University of Michigan in 1988, many institutions adopted speech codes that punished expressions of racist, sexist and other ideas that might interfere with the education of minority students. At Michigan, the speech code was used to punish a graduate student in social work who said that homosexuality is a disease. The Michigan code was struck down in 1989 on the grounds that it punished speech that was protected by the First Amendment. However, the decision did not slow efforts to devise a speech code that could withstand constitutional scrutiny. "I can’t recall a time when the right-wing philosophy that certain words and ideas must be curbed for the greater good of the polity has taken hold of so many students on the left," columnist Nat Hentoff wrote in April 1990. What was even more remarkable was that many establishment institutions supported the codes. In October, Hentoff criticized the New York Times, the Association of American University Professors and the American Council on Education for downplaying the threat posed by speech codes. Even the American Civil Liberties Union was split over what position to take. Finally, in June 1992, the Supreme Court appeared to reject limits on "hate speech" in its decision in RAV v. St. Paul. MacKinnon’s career was bound to flourish in such an environment. Her views on pornography made it natural that she should be invited to attend a conference on hate speech that was held at Hofstra University in 1988. Her role on the cutting edge of the hate speech movement may also explain why it was the University of Michigan that finally offered MacKinnon tenure in 1989. [Quote by head of law school.] Certainly, it was not because MacKinnon had changed her views or softened the manner in which she expressed them. In her farewell address at Yale, delivered at commencement at the request of students, MacKinnon reminded the audience of the ubiquitousness of sexual abuse. [Quote about fathers abuse daughters and beating mothers.] Clearly, tenure would not change MacKinnon. Yet, while her career was progressing rapidly, MacKinnon continued to insist that she and her supporters were the objects of persecution. In January 1990, she responded to a New York Times review of Donald Downs’ book, The New Politics of Pornography, which asserted that in passing the Indianapolis ordinance MacKinnon had worked closely with conservatives who were hostile to women’s rights. Downs’ book was just another attempt to discredit her by saying that she was "in bed" with the Right, MacKinnon said. MacKinnon did not deny working with conservatives. She had worked with anyone who would support her ordinance, she acknowledged. But she was eager to expose what she described as a campaign to portray her as an instrument of the conservatives. This charge had originated in a $1 million public relations campaign undertaken by the Media Coalition, MacKinnon said. Two months later, she renewed her complaint. Despite her own success, the opponents of pornography were still being "libeled, fired, evicted..." she said. Since 1984, Andrea Dworkin had published ? books. Yet MacKinnon insisted that Dworkin had been "silenced." She did not mention that in Indianapolis, she had acquiesced in the silencing of Dworkin to win conservative votes. Far from the victim of vengeful pornographers, MacKinnon and her ideas were gaining popularity every day. While the Indianapolis ordinance was dead, MacKinnon’s influence was evident in efforts to exploit the Supreme Court’s decision in 1986 that declared that sexual harassment was a form of sex discrimination. MacKinnon did not argue the case of Meritor Savings Bank, FSB v. Vinson. However, as co-counsel her influence was clear, particularly in the claim that sexual harassment should be defined not only as physical abuse but as verbal overture that might be construed as contributing to a "hostile environment." The implications of the Supreme Court’s endorsement of MacKinnon’s view did not become apparent until February 1991 when a federal court in Florida ruled that the presence of sexually explicit magazines, calendars featuring female nudity and "sexually demeaning remarks and jokes" by male coworkers created a hostile environment at the Jacksonville Shipyards even though the plaintiff had never been physically abused or propositioned for sex. As the danger of the hostile environment claim became apparent, there were calls for a change in the definition of sexual harassment. In November, the New Republic warned: Because the legal definition includes any unwanted "verbal conduct that contributes to an "intimidating, hostile, or offensive working environment," it may lead to an outpouring of charges based less upon legitimate claims of harm than upon an increasingly powerful impulse to censor speech merely because it is offensive. Indeed, one of the first to attempt to exploit the new definition of sexual harassment was the Rev. Donald Wildmon of the American Familty Association, whose definition of "pornography" MacKinnon had indirectly endorsed during the controversy over the Meese Commission letter. In December, the AFA’s Legal Center agreed to represent Delores Stanley, a manager of a Dairy Mart convenience stores in Toronto, Ohio, who defied company policy by refusing to sell Playboy, Penthouse, and other adult magazines in her store. Dairy Mart offered her a position in a store that didn’t carry magazines. When she refused, they suspended her. With the Legal Center acting on her behalf, Stanley sued Dairy Mart, claiming that to force a woman to sell adult magazines constituted sexual discrimination and harassment. If Stanley prevails, thousands of stores throughout the country would be forced to discontinue the sale of books, magazines, videos and recordings that are protected by the First Amendment out of a fear that a female employee may sue them.
In Canada, meanwhile, the Ontario Human Rights Commission ordered an investigation in April 1993 into complaints that the sale of men’s magazines in convenience stores created a hostile environment for female shoppers under Canadian civil rights law. In addition to helping rewrite the sexual harassment law, MacKinnon could claim credit for changing the nature of the debate over censorship in Congress. From the time of the passage of the Indianapolis ordinance, members of Congress had shown interest in MacKinnon’s work. One of the first was Pennsylvania Senator Arlen Specter, who introducted the Pornography Victims Protection Act in 1984. Specter, who would later be criticized for insensitivity toward women because of his cross-examination of Anita Hill during the hearing on Clarence Thomas’ nomination to the Supreme Court, drew the substance of the bill directly from the Indianapolis ordinance. It authorized women who were "coerced" into appearing in sexually explicit material the right to sue the producer and distributors of the material. Like the Indianapolis ordinance, the bill provided virtually no way for the defendant to prove that participation hadn’t been coerced, since it disallowed such evidence of consent as a contract and the payment of money. Specter introduced the Pornography Victims Protection Act on several occasions, however, it was never brought to a committee vote. A second bill inspired by the MacKinnon approach, the Pornography Victims Compensation Act (S. 1521), became a major battleground in Congress in 1991. S. 1521 was introduced by Senator Mitch McConnell, a conservative Republican from Kentucky. It authorized the victim of sexual crimes to sue the producer and distributors of sexually explicit material that allegedly "caused" the attack. While the original version of the bill targeted all sexually explicit material, including non- obscene works, the bill was soon amended to apply strictly to legally obscene material and child pornography. Nevertheless, producers and distributors remained concerned by the bill’s potential chilling effect on non-obscene material. Despite spirited opposition, the bill was approved by the Senate Judiciary Committee, 7-6, with two conservative Democrats joining the Republicans to form the majority. However, the bill did not reach the Senate floor for a vote before Congress adjourned. Despite her far-reaching impact on the debate over censorship, MacKinnon remained largely unknown to the general public until late 1991. On October 6, the New York Times Magazine made MacKinnon the subject of a laudatory cover story. The very next day, Anita Hill announced that she was willing to testify against Supreme Court nominee Clarence Thomas. During the ensuing controversy, MacKinnon was sought out as an expert on sexual harassment. She appeared on "Donahue," NBC’s "Today," ABC’s "Nightline," PBS’ "MacNeil-Lehrer News Hour" and worked as an NBC commentator during the three days of hearings. When she could, MacKinnon used her opportunity to press the case against sexually explicit material. She told the Gannett News Service that Thomas’ alleged references to pornography during conversations with Hill was common in harassment cases: It’s extremely common for women to be sexually harassed through pornography. Sometimes it’s explicitly posted as part of the working environment, sometimes it’s pulled out of drawers and referred to while (a women is ) present, and sometimes (a women is confronted with it in person, in his own mouth. The only thing unusual about these (Thomas) allegations is that we have heard about them. She was frustrated by the failure of the Democratic Senators failure to ask Thomas about his alleged use of pornography. She also blamed pornography for the fact that some people didn’t believe Hill: This is a country that’s saturated with pornography. What you’re doing with a country that’s saturated with pornography is you a creating a population that will not believe Anita Hill....[You] create the belief in people that women lie about sex...
MacKinnon’s support for the censorship of sexually explicit material did not tarnish her fame. In the wake of the Hill/Thomas hearings, the Yale University Press ordered another printing on MacKinnon’s book on sexual harassment, which had sold only 17,000 copies. Her celebrity was established beyond cavile by a report that Faye Dunaway had sat in on one of her classes. "Dunaway is interested in portraying law professor Catherine MacKinnon in a movie about sexual harassment," Time reported. MacKinnon moved from one triumph to the next. Before the end of the 1991, she was back in demand as a commentator on the rape trial of William Kennedy Smith. Smith’s acquittal gave MacKinnon the opportunity to restate the view that she had been expressing throughout her career: that rape is the way that a masculine society perpetuates the subordination and inferiority of women; therefore, it does not differ materially from the way lynching was used to prevent blacks from exercising their constitutional rights. But MacKinnon was no longer speaking to small coeteries of women. "The Palm Beach Hanging" appeared on the Op-Ed page of the New York Times. MacKinnon’s influence hit a new high in February 1992 when the Canadian Supreme Court endorsed the view that some sexually explicit material that is "violent and degrading" harms women. MacKinnon was a co-founder of the Women’s Legal Action Fund, the Canadian group whose brief shaped the new definition. Her influence was clear in the court’s definition of "degrading" materials as those that "place women (and sometimes men) in positions of subordination, servile submission or humiliation." MacKinnon was elated. "This makes Canada the first place in the world that says what is obscene is what harms women, not what offends our values," she said. What the Canadian Supreme Court decision really proved was that anti- censorship feminists were right when they predicted that the first persons to be hurt by censorship would be women. Three months after the Supreme Court decision, the Ontario Provincial Police brought the first charge under the new definition of obscenity against a gay and lesbian bookstore in Toronto, Glad Day Bookshop. The owner and manager of the store were charged with selling a lesbian magazine that included pictures of bound, naked women. "It just points up the dangers of investing the police with determing what is degrading," Nan Hunter, a member of FACT, observed. Even Kathleen Mahoney, who worked with MacKinnon on the brief in the Butler case, agreed that at least in this case the new definition appeared to have misfired. "I think what’s interesting is that the police would prosecute a lesbian store. Lesbian porn is not a problem in Canada," Mahoney said.
At the time of the Canadian decision, MacKinnon had predicted that it would mark the beginning of a change that would sweep the United States as well. "There are going to be several pieces of legislation in Congress soon, predicated on the harm approach and recognizing that both the making of pornography and its use do harm to women," she promised. But as the year progressed, MacKinnon could not have been encouraged about the prospects for new Federal legislation. In part, this was because the Canadian decision had only made anti-censorship feminists in the United States more determined to prevent a similar outcome here. The anti-censorship feminists had been energized by the fight against the Pornography Victims Compensation Act. Although MacKinnon declined to endorse the act because it did not target a wide enough range of sexually explicit material, S. 1521 clearly embodied MacKinnon’s approach. Moreover, it was supported by other members of the feminist anti-pornography movement who claimed wide support for the bill among women’s groups. To counter this claim, a group called Feminists for Free Expression sent a letter to the Senate Judiciary Committee opposing the bill on behalf of 180 prominent women. The Feminist Anti-Censorship Task Force, which had been inactive since 1984, was revived to oppose the bill. Five state chapters of the National Organization for Women, including New York and California, joined in the feminist opposition to S. 1521. But the fact that women were organizing to oppose MacKinnon only shows how far she had come. By the middle of 1993, MacKinnon could look back on the last 11 years with considerable satisfaction. Her academic career was flourishing. She had risen from an itinerant lecturer to a tenured faculty member; published three books, and delivered the distinguished Gauss Lectures in Criticism at Princeton, which were to be published by the Harvard University Press in September. Smith College had presented her with the Smith Medal, and Reed College, Haverford College and Northeastern University had made her a recepient of honorary degrees. She almost touched the pinnacle of her profession in April when the Harvard Law School faculty voted on whether to offer her a tenured position. The vote was 33-22 in her favor, however, she was just shy of the 2/3 majority she required. Her career on the public stage had also prospered mightily. She had acquired a national and an international reputation as a militant champion of women. Despite the fact that the courts had rejected her anti-pornography ordinance twice, MacKinnon was still able to get a hearing for her bill in Massachusetts in 1992. In Canada, she was hired by the federal government to help draft a law to shield the sexual histories of the victims in rape prosecutions. When two Croatian women’s groups were looking for someone to represent Muslim and Croatian women who had been raped by Serbian nationalist soldier, they hired MacKinnon. Even her private life became a subject of public comment. When MacKinnon became engaged to Jeffrey Masson, a former psychoanalyst who had written a scathing attack on Freudianism, it was reported in Time and made the subject of a cover story in New York magazine. A mere 11 years after she rose to speak at the Minneapolis Zoning Commission, MacKinnon had made it big.
The rise of Catherine MacKinnon reflects the profound changes in the role of women in American society. A concern with sexual equality had always concerned some women and men. It did not become a widespread social concern, however, until women became a significant part of the paid labor force and began to encounter sexual discrimination and harassment on the job. MacKinnon’s anger captured the frustration of women dealing with changing sexual roles and expectations in new environments. It is ironic, then, that MacKinnon portrays the relationship between men and women as unchanging. Her indictment of society gains its power from the injustices that women have suffered over the centuries. The persistence of some of these injustices is her pretext for attempting to suppress speech that supports them. The courts have supplied a definitive answer to her attempt to abridge First Amendment rights. Yet MacKinnon’s feminist critics have supplied an additional answer that goes to the heart of her contention that censorship is the only way to defend women’s rights. Women are no longer the passive instruments of male society. Although they continue to encounter serious obstacles to equality, they are acquiring the power to conquer them. They organize other women and run for office. They write articles and legal briefs. They protest. The rise of Catharine MacKinnon is an example of the growing power of women. It is also a complete answer to those who argue that women require special treatment.