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The Problem of Pornography

Susan Dwyer

McGill University

INTR0DUCTI0N

Constructing the "Problem" of Pornography

1. Introduction

Any serious discussion of pornography quickly leads to two queries: Is pornography somehow problematic (for

example, morally, socially, or politically)? If so, precisely what sort of problems does pornography present? Such

questions have elicited a variety of responses, and in this book you will find some of the most recent answers to

them. But thinking about pornography has changed significantly over the last thirty years. I believe we better

appreciate the current debate about pornography when we understand the substance and motivation for previous

approaches to the topic as well as the reasons those approaches have been rejected and/or replaced. Hence, the aim of

this introduction is to outline and explain some of the several ways in which the problem of pornography has been

constructed or formulated.

2. Pornography as a Business

One cause of the rapidly changing nature of the debate about pornography is the rapidly changing nature of

pornography itself. The history of pornography goes hand in hand with the history of media technology. For

example, it was the advent of the printing press in the sixteenth century that first made possible the publication and

mass circulation of sexually explicit prints and books,1 and the first pornographic films emerged along with advances

in photographic reproduction in the late nineteenth century. In the earliest days of home video technology,

pornography accounted for approximately 75 percent of sales,2 and today guests in many hotels can readily access a

variety of pornographic films. Cable television and interactive computer software have also been utilized by

producers of pornography. Sex is now to be had even over the telephone. The availability of sophisticated technology

has certainly been a major factor in the massive growth of the pornography business. Annual turnover is now

estimated to be approximately $10 billion internationally. Furthermore, many film and photographic equipment

companies advertise in pornographic magazines, and although much of the production and dissemination of

pornography is still limited to certain "red light"' districts or the back of video stores, it would be a mistake to think

that pornography is in any way a "fringe" enterprise.

Like many businesses, the pornography industry has diversified as it has grown-arguably, in response to consumer

demand. The range and content of pornography have changed dramatically. Today, pornography extends from "soft

core" magazines like Playboy, to "hard core" films depicting explicit sexual acts-including vaginal and anal

intercourse, fellatio, and cunnilingus-between persons of opposite genders as well as persons of the same gender.

Most pornography currently available is heterosexual, but there is a substantial market in gay male material, and a

growing one in lesbian pornography. In addition, there is a considerable amount of pornography specifically tailored

to particular audiences-for example, fetishists of various sorts, sadomasochists, pedophiles, and so on. A point of

some controversy concerns just what percentage of all this material contains violence. At least this much can be said:

pornography that combines explicit sex and violence is readily available, and much of this type has entered the

market since the ;ate 1970s.

1For detailed historical accounts of the emergence of pornography see Lynn Hunt, ed., The Invention of Pornography:

Obscenity and the Origins of Modernity, 1500-1800 (New York: Zone Books, 1993); and Walter M. Kendrick, The

Secret Museum: Pornography in Modern Culture (New York: Viking, 1987).

2John Tierncy, "Porn, the Low-Slung Engine of Progress," in New Tork Times, Sunday, 9 January 1994, sec. 2. For

more details on the dimensions of the pornography industry, see Gordon G. Hawkins and Franklin E. Zimring,

Pornography in a Free Society (Cambridge: Cambridge University Press, 1991); and David Hcbditch and Nick

Anning, Porn Gold: Inside the Pornography Business (London: Faber and Faber, 1988).

3. Pornography's Effects

Pornography's intended and most direct effect is to produce sexual arousal. But participants in the pornography debate

have been more concerned with a range of other effects that pornography is alleged to have-for example: that it causes

men to rape and sexually harass women and (sometimes) children; that it contributes to an environment in which its

consumers are indifferent to the real needs of women or fail to take women seriously. A different claim is that

pornography facilitates the harmless satisfaction of otherwise dangerous sexual desires.3 This suggestion that

pornography has a "'cathartic" effect on its consumers often figures in arguments against the restriction or

prohibition of pornography, whereas anti -pornography theorists tend to focus on the claim that pornography has

significant negative effects. In other words, empirical considerations play a role in arguments both for and against

pornography. So the success of these arguments partly depends on what can be established about the connection

between pornography and various types of behavior and attitudes.

That there is some connection between rape, say, and pornography is undeniable. It is well-documented that some sex

offenders admit to being incited by pornography; some even use it during the commission of their assaults. 4

However, it is unclear what generalizations can be made about the connection between the consumption of

pornography and sexual violence against women. Does all pornography cause men to torture and rape women? Does

the use of pornography make men more callous towards women? Is pornography uniquely responsible for the attitude

that women are either sexually insatiable or timid virgins awaiting sexual initiation? Researchers have provided

conflicting answers.

In 1970, the U.S. Commission on Obscenity and Pornography reported that empirical studies on the effects of

pornography were insufficient to establish that pornography is a central causal factor in sexual violence. But in 1986,

the Meese Commission concluded that "the available evidence strongly supports the hypothesis that substantial

exposure to sexually violent materials ...

3Sec, for example, G. L. Simons, "is Pornography Beneficial?" in Pornography without Prejudice (London: Abelard

-Schuman, 1973), 85-103.

4See, for example, Catharine A. MacKinnon, "Francis Biddle's Sister: Pornography, Civil Rights, and Speech,"

Feminism Unmodified: Discourses on Life and Law, (Cambridge, Mass.: Harvard University Press, 1987), 185-186,

291 n. 107; and Pornography and Sexual Violence: Evidence of the Links (London: Everywoman, 1988).

bears a causal relationship to antisocial acts of violence and, for some subgroups, possibly to unlawful acts of sexual

violence."5 In Canada, the "official" view about pornography's effects has been somewhat more consistent: In 1978,

the Standing Committee on justice and Legal Affairs declared, "Tile clear and unquestionable danger of this type of

material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to

reinforce male-female stereotypes to the detriment of both sexes."6 In 1985, the Special Committee on Pornography

and Prostitution, despite accepting that a causal connection between pornography and sexual violence had not been

established, recommended the criminalization of violent pornography "because of the seriousness of the impact of

this sort of pornography on the fundamental values of Canadians."7

Investigation into the effects of pornography is subject to a number of difficulties not unlike those which beset other

social scientific research. Various biases operate in the design of experiments and questionnaires and in tile

interpretation of their results;8 the same "expert testimony" is employed in very different, often opposing,

political and pragmatic arguments.9 Such uncertainty renders problematic the appeal to such research in arguments for

either restrictive or permissive policies oil pornography. And, theorists on all sides of the debate are now far less

inclined to rest their cases on empirical claims alone. This is not to imply that current thought about pornography

takes empirical matters to be irrelevant to philosophical or legal arguments. Indeed, several contemporary theorists

urge us to take a broader view of empirical data. For example, Catharine MacKinnon argues that the empirical

impact of

5Attorney General's Commission on Pornography, Final Report, 2 vols. (Washington, D.C.: U.S. Government

Printing Office, 1986), vol. 1, 326.

6House of Commons, Standing Committee on justice and Legal Affairs, Report on Pornography, no. 18, 22 March

1978, 4.

7Special Committee on Pornography and Prostitution in Canada, Pornography and Prostitution in Canada, vol. 1

(Ottawa: Supply and Services, 1985), 103. More recently, the Supreme Court of Canada argued that, although the

evidence of a causal connection between pornography and violence against women is inconclusive, Parliament has a

"reasonable basis" for restrictive legislation. See R. v. Butler [19921] 1 S.C.R. 452, 613; and the Legal Appendix.

8See, for example, Ferrell M. Christensen, "Cultural and Ideological Bias in Pornography Research," Philosophy of

the Social Sciences 20 (1990): 3 51-375; and, Alison King, " Mystery and Imagination: The Case of Pornography

Effects Studies," in Bad Girls and Dirty Pictures, ed. Alison Assister and Avedon Carol (London: Pluto Press, 1993),

57-87

9For discussion on the use of experimental studies by the Meese Commission see Daniel G. Linz, Edward

Donnerstein, and Steven Penrod, "The Findings and Recommendations of the Attorney General's Commission on

Pornography: Do the Psychological 'Facts' Fit the Political Fury?" American Psychologist 42 (1987): 946-953.

pornography extends far beyond its direct and indirect effects on consurners: it also encompasses what has to happen to real people i

pornography and the social and economic facts of women's inequality. 10

4. The Traditional Approach:

Pornograpby as a Moral Issue

Pornography used to be a sort of litmus test for where one stood on the political spectrum. Conservatives claimed,

sometimes on the basis of religious Considerations (for example, the alleged sinfulness of masturbation or nonprocreative

sex), that pornography is something disgusting and immoral. Liberals, with varying degrees of

enthusiasm, declared pornography something to be tolerated; and a few self-proclaimed sexual radicals argued for less

state control over sexually explicit material. In any case, disagreements about pornography used to be fairly

straightforward because, by and large, people focused on a single feature of pornography-namely, its sexual content.

Arguments for both restrictive and permissive social policies hinged on moralistic claims about the public

dissemination of graphic depictions of sexual activity.11 To the extent that pornography was thought to be a

problem at all, then, it was thought to be a problem about the proper boundaries of sexual morality.

Arguably, for tile first half of the twentieth century, philosophical and legal opinion about pornography mirrored the

simplicity of this commonsense disagreement. In law, Sexually explicit representations were (and continue to be)

dealt with under the rubric of obscenity. For a long time, obscenity statutes were justified on the grounds that they

were necessary to protect tile moral fabric of society. For example, Patrick Devlin is well known for arguing that

one legitimate purpose of the criminal law is to preserve tile moral code of the society whose code it is. 12

10See Catharine A. MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), 3-41.

11A representative selection of liberal and conservative arguments about pornography appears in Douglas A. Ylughes,

ed., Perspectives on Pornography (New York: St. Martin's Press, 1970). See also Fred PL Berger, "Pornography

Sex, and Censorship," Social theory and Practice 4 (1977): 183-209.

12Patrick Devlin, "Morals and the Criminal Law," in 7lie Enforcement of Morals (Oxford: Oxford University Press,

1965), 1-25. And see the Legal Appendix for early definitions of obscenity.

When the problem of pornography is constructed in these terms, the following sort of argument is likely to be

advanced by anti-pornography campaigners: Because (i) pornography is immoral, and (ii) the purpose of the law

(including the criminal law) is to protect the moral well-being of society, then (iii) the state should prohibit the

production, display, and sale of pornography. On the other side, a variety of strategies are available to the advocate

of less-restrictive policies. Such a person could take issue with (i) and claim that pornography is morally innocuous.

Alternatively, she could concede that pornography is immoral but argue directly against (ii) oil the grounds that the

enforcement of morality is none of the state's business. Finally, it is open to anyone to reject the very way in which

this argument is framed. That is, someone might object to formulating the problem of pornography in this manner;

and this is precisely what has happened.

Popular opinion about the immorality of non-procreative sex and masturbation was transformed during the "sexual

revolution" of the 1960s, and many people claimed that pornography is a valid form of expression, not simply

"smut." In addition, the view that the legislation of moral - especially sexual morality - is a legitimate objective of

the state was subject to intense criticism.13 Accordingly, the problem of pornography was recast as a battle between

an "authoritarian" state, on the one hand, and beleaguered sexual radicals, on the other. As a radical form of

expression, pornography was defended against governmental interference for the same reasons that the expression of

political dissidents was defended. As Catharine MacKinnon has recently put it, the pornography debate was "one of

governmental authority threatening to suppress genius and dissent."14

Two elements are notably absent from these traditional ways of thinking about the problem of pornography. First,

very little detailed attention is paid to the context in which pornography is produced, sold, and consumed. Second, no

specific mention is made about the particular impact that pornography might have on women. A significant change

in the construction of the problem of pornography was brought about when these elements - context and gender -

were emphasized.

I3See, for example, H. L. A. I Hart, Law, Liberty, and Morality (1.ondon: Oxford University Press, 1963).

14MacKinnon, Only Words, 8.

5. Pornography as Harmful to Women

As Laura Lederer reports,15 two factors were instrumental in women's initial organization against pornography: an

increase in the combination of sex and violence in pornography (and other media) and the explicit recognition of

widespread violence against women. In the 1970s, feminists began to document the systematic nature of this

violence, and many were tempted to infer that there is a direct connection between representations of violence against

women and actual violence against women.16 Indeed, some feminists agreed with Robin Morgan, who went so far as

to say, "Pornography is the theory, rape is the practice." Now, this way of looking at pornography has implications

for the sort of argument that can be made against pornography. In order to make these implications clear, we need to

turn more directly to matters of free speech.

A right to free speech is enshrined in both the U.S. Bill of Rights and the Canadian Charter of Rights and

Freedoms,17 and rightly or wrongly, pornography is widely considered to be a form of speech or expression. Hence,

any argument for the restriction or prohibition of pornography must make clear why this particular type of

expression is deserving of less protection than others. Such an argument may be made in slightly different ways, but

each is likely to depend on (i) a view about why freedom of expression is valuable at all, and (ii) a view about the

way(s) in which pornography differs from other forms of expression. So, why is freedom of expression important, or

put another way, how is its protection to be justified?

There appears to be no single answer to this question. A right to freedom of expression has been variously defended:

in terms of the necessity of a "marketplace of ideas" for the discovery and/or test of truth;18 on the

15Laura Lederer, 'Introduction," in Take Bark the Night: Women on Pornography, ed. Laura Lederer (New York:

William Morrow & Co., 1980).

16See, for example, groups like Women against Violence against Women (Toronto, 1977), Women against Violence

in Pornography (San Francisco, 1978), and Women against Pornography (New York City, 1979).

17Thc relevant guarantees are the First Amendment to the United States Constitution, and section 2(b) of the

Canadian Charter of Rights and Freedoms. See the Legal Appendix for a statement of these provisions.

18 Classic sources here are John Locke, A letter Concerning Toleration (1689) and John Smart Mill, On Liberty

(1859). See also Justice Wendell Holmes in Abrams v. United States, 250 U.S. (1919) 616, 630.

grounds that bad consequences are likely to ensue upon the suppression of speech; in terms of the role of free speech

in democratic self-governance;19 and finally, in terms of the connection thought to exist between an individual's

ability to express herself freely (and hear others do so also) and her dignity and moral autonomy.20 It is not obvious

that these justifications are or need be mutually exclusive. But one point of difference among them deserves mention.

The last idea - namely, that freedom of expression is connected to human dignity - has it that freedom of expression

is good in and of itself. However, all the other justifications just mentioned are consequentialist justifications; that

is, they appeal to the likely outcomes of allowing or not allowing free speech. According to these views, then, the

value of free speech is a function of the value of the end to which it is thought to be a (necessary) means - for

example, the discovery of truth, the avoidance of tyranny, or the possibility of democracy.

No matter how the right to free speech is defended, it is rarely defended as an absolute right-that is, as one that may

never be infringed or overridden.21 But, of course, what counts as a sufficient reason to limit the right to free speech

in any particular instance will vary according to how that right is justified in the first place. Suppose, for example,

that we defend the right to free speech on the grounds that it is essential to the pursuit of truth; then We might be

able to argue for the restriction of some form of expression by showing that it plays no role in furthering that goal.

In any case, the right to free speech is justified oil quite substantial grounds, and anyone who wishes to argue that

pornography ought to be restricted has to show that there are very good reasons to do so. (These matters are discussed

in more detail in the introduction to and the essays in Part Two, "Rights, Equality, and Free Speech.")

Now that we understand something of the commitment to free speech that lies in the background of discussion about

pornography, we are in a better

19See, for example, Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper,

1948); and Martin H. Redish, "The Value of Free Speech," University of Pennsylvania Law Review 130 (1982):

591-645.

20For this "constitutive"' justification of free speech see Ronald Dworkin, "The Coming Battles over Free Speech,"

The New York Review of Books, 11 June 1992, 55-58, 61-64.

2INotable exceptions here are Justices Hugo Black and William 0. Douglas. See, for example, Black's dissent in

Beauharnais v. Illinois, 343 U.S. 250 (1952); E. Cahn, "Justice Black and First Amendment 'Absolutes': A Public

Interview," New York University Law Review 37 (1962): 549-563.

position to grasp the way in which early feminists constructed the problem of pornography. They argued that

pornography is harmful to women. Surely, if it could be established that pornography is causally responsible for

violence against women, this would constitute a good enough reason for pornography's restriction or prohibition.

There is indeed philosophical precedent for just this sort of argument.

In On Liberty, John Stuart Mill defended freedom of expression oil the grounds that an unfettered exchange

of ideas is essential to the attainment of truth. He argued that the restriction of speech and expression would likely

have nothing but bad consequences: it would permit the rise of authoritarian government; it would hinder the critical

examination of moral and political ideas; and so on.22 But Mill was aware of the dangers of completely

unconstrained liberty, and in On Liberty lie also articulated what has come to be known as the harm principle. Very

roughly, the idea is that the state is not justified in prohibiting actions (that is, limiting its citizens' liberty) unless it

can be proven that those actions are harmful and that the benefits of prohibiting such actions outweigh the costs of

allowing them. In these terms, some one who would argue for the prohibition of pornography would bear the burden

of showing (i) that pornography has demonstrably harmful effects and (ii) that the benefits of prohibiting

pornography are greater than the costs of permitting a free market in pornography. Within this framework, someone

who would argue against the prohibition or restriction of pornography could adopt any of the following three

strategies. First, she could point to evidence that pornography is not harmful, or not as harmful as its opponents

would make out, and so deny that the costs of a permissive policy oil pornography warrant the restriction of free

speech. Second, she might agree there is reason to believe that some pornography is harmful but argue that this is

not sufficient to warrant the censorship of all pornography. Or, third, she might invoke what philosophers call a

slippery-slope argument: If pornography is prohibited on the grounds that some of it might be harmful, do we not

then set a dangerous precedent for the restriction of other forms of expression about which we might be suspicious?

22Mill thus appears to advance what I earlier called a consequentialist justification of free speech. As a utilitarian,

Mill was certainly apt to rely on consequentialist arguments. However, I believe there is sufficient evidence in On

Liberty and in his Utilitarianism to attribute to Mill a constitutive justification of free speech-that is, one that

emphasizes the role of freedom of expression in the realization and maintenance of an individual's self-respect and

dignity.

As we saw above, the empirical evidence does not univocally support the claim that pornography is causally

responsible for violence against women. Although there is a large amount of anecdotal evidence implicating the

consumption of pornography in sexual violence against women, taken together it is still not considered sufficient to

justify state intervention. An anti-pornography advocate might try to respond that, of all forms of expression, the

restriction of pornography represents an exception to the general requirement of establishing demonstrably harmful

effects. In order to do this, she or lie would have to show how pornography differs in principled ways from other

types of expression. Otherwise the singling Out of pornography as a legitimate target of state control appears to be

entirely arbitrary; and it is the threat of arbitrariness that underlies slippery-slope objections to state interference with

free speech.

In short, given our current knowledge of pornography's effect, when the problem of pornography is constructed as

representing a conflict between freedom of expression and probable harm to women, no argument for its restriction is

likely to prove successful. This result has led many people, especially feminists, to question the adequacy of a

"liberal" approach to the problem of pornography. The liberal approach focuses on abstract rights and liberties, often

to the exclusion of the substantive realities of women's lives. Moreover, it is precisely this way of thinking about

the problem of pornography that compels the sort of cost-benefit analysis I outlined above, and it therefore places a

very heavy (perhaps unattainable) burden of proof on those who would argue for pornography's restriction or

prohibition. Thus, a new type of argument against pornography has emerged. Like the harm approach, this new and

highly influential way of constructing the problem of pornography - the sex discrimination model - is inspired by

feminist thought. However, it is important to note that it does not represent the feminist position on pornography;

nor need it be the only adequate way of conceiving of the issue.23

23See, for example, the essays in Pleasure and Danger: Exploring Female Sexuality, ed. Carol Vance (London:

Pandora Press, 1992), and in Bad Girls and Naughty Pictures, ed. Alison Assister and Avedon Carol (London: Pluto

Press. 1993) and Elizabeth Fox- Genovese, "Pornography and Individual Rights", in Feminism without Illusions

(Chapel Hill: University of North Carolina Press. 1991), 87-112.

6. Pornography as a Form of Sex Discrimination

Although it has proved very difficult to establish a definitive causal connection between violent pornography and the

incidence of rape and other sexual assault, feminists (and others) have continued to insist that the widespread display

and consumption of pornography contribute to a cultural and social environment that is damaging to women.

Pornography conveys certain messages about what women are like and about what they want from sex. In particular,

much of what is currently available suggests that women are primarily sexual creatures, that they are essentially

submissive, that they want to be humiliated and hurt, and that they derive sexual pleasure from being treated ill these

ways. As Helen Longino puts it in "Pornography, Oppression, and -Freedom: A Closer Look" (Part One),

pornography lies about women's sexuality. It presents a distorted view of women, which, if accepted as the truth by

men who consume it, is likely to affect the ways in which those men respond to and behave towards women in

general. Some may choose to rape women; others may adopt the attitude that women are just sex toys and are thus

not to be taken seriously. These general attitudinal effects of pornography, it is argued, have far-reaching

implications for women's ability to participate fully and equally in tile political process. For if women are perceived

to be nothing but sexual creatures, it is unlikely that their fellow citizens will be inclined to give them power (for

example, elect them to high governmental office).

Now, it might be argued that pornography is not unique in having these effects. As Ronald Dworkin suggests in

"Liberty and Pornography" (Part Two), much of mainstream advertising also presents a distorted and potelltially

damaging view of women. Indeed, Dworkin believes that tile negative effects of advertising and soap operas are likely

to be greater than the negative effects of violent pornography. He writes:

Television and other parts Of Popular culture Use sexual display and sexual innuendo to sell

virtually everything, and they often show women as experts in domestic detail and unreasoned

intuition and nothing else. The images they create are subtle and ubiquitous, and it would not be

surprising to learn, through whatever research might establish this, that they do indeed do great

damage to tile way women are understood and allowed to be influential in politics. Sadistic

pornography, though much more offensive and disturbing, is greatly overshadowed by these dismal

cultural influences as a causal force.

Suppose Dworkin is right about the effects of television and advertising - namely, that they are more potent than

violent pornography in molding attitudes about women. Consistency would then demand of someone who argues for

the restriction or prohibition of pornography solely oil the basis of its attitudinal effects that she also be committed

to the legitimacy of substantial state interference with advertising and television. Now, the state certainly does

exercise some control over both of these media, but few people who value free speech would be happy to see the

state's power extended in this way.

At the end of the last section, I suggested that a proponent of a restrictive policy on pornography could concede that

pornography is a form of expression and that freedom of expression ought generally to be protected, but could

nonetheless try to argue that pornography is a special form of expression. I said that such a person would have to

persuade us that pornography has some distinctive feature(s) that sets it apart from expression of other sorts. Given

the background commitment to free speech in both the United States and Canada, it is only in this way that a person

proposing the restriction or prohibition of pornography could avoid the force of slippery-slope objections like

Dworkin's above. the hypothesis that pornography causes sexual violence against women has not been definitively

established. We have just seen that a weaker claim-namely, that pornography uniquely contributes to a hostile

environment for women-also cannot be sustained. What, then, might be suggested as a way of singling out

pornography from other forms of expression in such a way as to make an argument for its restriction or prohibition

more plausible?

The newest turn in the pornography debate is to argue that pornography is not merely a form of expression with

potentially bad effects. Some theorists encourage us to think of pornography also as a practice, specifically as a

practice of sex discrimination. Catharine MacKinnon, Andrea Dworkin, and Susan Cole24 argue that pornography is

more than just a form of expression, and they insist upon a broader understanding of pornography's empirical

dimensions. Pornography is a form of expression: it has, in legal terms, expressive content or a message. But

pornography has the content it

24MacKinnon, "Francis Biddle's Sister: Pornography, Civil Fights, and Speech," 163-197; Andrea Dworkin,

Pornography: Men Possessing Women (New York: Phime, 1989); Slisan G Cole, Pornography and the Sex Crisis

(Toronto: Ainanita, 1989).

has only because certain things happen to particular people. As MacKinnon says, "Suppose that the sexually explicit

has a content element: it contains a penis ramming into a vagina. Does that mean that the picture of this conveys the

idea of a penis ramming into a vagina, or does the viewer see and experience a penis ramming into a vagina?"25 Her

point is that the production of pornography, especially photographic magazines and films, requires that real things,

some of which are dangerous or abusive, happen to real women and men. Furthermore, MacKinnon argues,

pornography delivers its message in a unique way. Because pornography is primarily a tool for masturbation, when

men become aroused and orgasmic using pornography, they are performing a sex act. In other words, to the extent

that pornography's message is grasped by its consumers, it is grasped through sex. Oil these grounds, we are

encouraged to construe pornography in very inclusive terms: pornography does not refer just to a collection of

magazines, films, and books; the term also encompasses the conditions required for its production, its use, and its

ultimate effects. It is this broader focus that underlies the view, espoused by MacKinnon and others, that

pornography not only says certain things, it also does certain things. It is a form of expression that is also a

particular activity.

This understanding makes possible a different sort of argument for the restriction or prohibition of pornography. In

particular, it permits ail argument that does not rely on (i) denying that pornography is a form of expression, or (ii)

rejecting the importance of protecting free speech, or (iii) indeterminate empirical studies about the negative effects of

pornography. It so happens that in the United States there is considerable jurisprudential precedent to the effect that

some forms of expression or speech do not fall under First Amendment protection because these forms of speech are

also forms of discriminatory conduct: "social life is full of words that are legally treated as the acts they constitute

without so much as a whimper from the First Amendment."26 Among these "exceptions" to tile First Amendment

are: "fighting words," or words "which by their very utterance inflict injury or tend to incite an immediate breach of

the peace,"27 and various utterances that, produced in a certain context, in fact constitute discriminatory

2SMacKinnon, Only Words, 24. 26M acKinnon, Only Words, 12. 27 Chaplinkiy P. New Hampshire, 3 15 U.S. 568, 572 (1942).

25 MacKinnon, Only Words, 24.

26 MacKinnon, Only Words, 12.

27 Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).

Behavior - for example, "'help wanted-male,' 'sleep with me and I'll give you an A,' 'fuck me or you're fired.’"28

In Canada, the situation is slightly different. Hate propaganda - that is, speech which willfully promotes hatred

against any identifiable group on the basis of color, race, religion, or ethnic origin - is illegal.29 However, in R. v.

Keegstra,30 the Canadian Supreme Court ruled that hate propaganda does fall under the protection of section 2(b) of

the Charter. Nonetheless, it argued, this expression can be legitimately restricted under section 1, which states the

following perfectly general constraint on all the rights and liberties in the Charter: "'Tile Canadian Charter of Rights

and Freedoms guarantees the rights and freedoms set out in it subject to reasonable limits prescribed by law as call be

demonstrably justified in a free and democratic society." Hence, three ways of making the desired argument about

pornography would be: in the United States, (i) to show that pornography is relevantly similar to other forms of

unprotected expression; and in Canada, (iia) to show either that pornography is hate propaganda or (iib) that its

restriction is legitimate in a free and democratic society. Let us look briefly at (iia) and (iib) first.

Several feminists have suggested that we ought to construe pornography as a form of hate propaganda;31 and in

1978, the Fraser Committee in Canada wrote, "If one accepts the argument that pornography is all expression of

rnisogyny, then use of the hate propaganda section of the Code in this connection is particularly attractive."32 But it

is not obvious that pornography satisfies the legal definition of hate propaganda, as it appears ill tile Canadian

Criminal Code. Section 319(2) makes the willful promotion of hatred against all identifiable group a crime. Thus, in

order for pornography to be actionable under the rubric of hate propaganda, it must be established

28Catharine A. MacKinnon, Only Words, 13-14. MacKinnon cites, in order, the following case law for these

utterances: Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 379 (1973);

Alexander v. Yale University, 459 F. Supp. 1, 3-4 (D. Conn. 1977), aff’d. 631 F.2d 178 (2d Cir. 1984); Stockett v.

Tolin, 791 F. Supp. 1536, 1543 (S.D. Fla. 1992).

29See section 319(2) of the Canadian Criminal Code.

30R. v. Keegstra [1990] 3 S.C.R. 697.

31See, for example, Margaret Atwood, "Pornography," in Contemporary Moral Issues, 2nd ed., ed. Wesley Cragg

(Toronto: McGraw-Hill Ryerson, Ltd., 1987); Susan Brownmillcr, Against Our Will.- Men, Women and Rape (New

York: Simon & Schuster, 1975); and Susan Griffin, Pornography and Silence: Culture's Revenge against Nature

(New York: Harper & Row, 1981).

35Special Committee on Pornography and Prostitution in Canada, Pornography and Prostitution in Canada, vol. I

(Ottawa: Supply and Services, 1985), 319.

that it is the conscious intention of those who produce pornography to promote hatred against women. Not only

would this be very hard to do; it is also probably untrue that the deliberate intention of pornographers is to promote

misogyny. (Their intention to make a profit from the sale of this material is undeniable.) Pornography has thus not

been addressed legally in Canada as a form of hate propaganda.33 However, the second argument available in a

Canadian context-namely, that pornography is a form of "protected" speech that nonetheless may be legitimately

restricted in a free and democratic society-has been made.

In 1992, the Canadian Supreme Court unanimously ruled 34 that, although the obscenity provision of tile Criminal

Code (section 163) constitutes an infringement of the right to free speech guaranteed under section 2(b) of the

Charter, the prohibition of certain types of pornography is warranted in light of the threat they are presumed to pose

to other Charter values-especially to equality and dignity. The Court conceded the indeterminacy of the empirical

evidence linking pornography with violence against women but argued that it is reasonable to hold that the

dissemination of certain forms of pornography is both directly and indirectly harmful to women. Thus, the current

situation ill Canada is that material which depicts "explicit sex with violence" or "explicit sex without violence but

which subjects people to treatment that is degrading or dehumanizing" is legally obscene and is thus prohibited.

Sexually explicit representations that do not depict violence, degradation, or dehumanization are not illegal.

Let us now turn to the U.S. context. I suggested above that a potentially successful strategy for the anti-pornography

advocate would be to show that pornography resembles, in the relevant respects, other forms of speech or expression

that the Supreme Court has deemed unprotected. Some forms of speech do not fall under the protection of the First

Amendment by virtue of the sort of conduct they constitute-for example, the verbal incitement to violence and

various forms of discrimination that are realized by words. This strategy is adopted by Catharine MacKinnon in her

essay "'Francis Biddle's Sister: Pornography, Civil Rights, and Speech" (in Part One), in which she argues that

pornography, understood broadly as a practice that trafficks in women's bodies, is a form of sex discrimination.

(Because MacKinnon draws

33On the desirability of treating pornography as a form of hate propaganda, see Law Reform Commission of Canada,

Working Paper 50, Hate Propaganda, 1986.

34 R. v. Butler [1992] 1 S.C.R. 452.

on the work of Andrea Dworkin, let us call this the MacKinnon -Dworkin approach.) This argument embodies two

further claims. First, requiring, as it sometimes does, the coercion and abuse of women for its manufacture, and

leading, as it sometimes does, to the rape and assault of women, pornography is said to subordinate women. Second,

it is claimed that pornography silences women: by creating and maintaining a social hierarchy in which women are

believed to be inferior and essentially sexual, it prevents women from being heard authentically-that is, it robs their

speech of power. Arguably, too, pornography is used against women to prevent them from speaking.35

The MacKinnon -Dworkin approach to constructing the problem of pornography differs from earlier feminist anti

-pornography arguments in at least the following respects. First, it is underpinned by a far more complex and

sophisticated theory of gender and of the social construction of sexuality (see Andrea Dworkin's and MacKinnon's

essays in Part One). Second, although it, too, is motivated by the alleged negative effects of the end-products of

pornography (for example, magazines and films), the MacKinnon- Dworkin approach emphasizes an inclusive

understanding of pornography's empirical dimensions. MacKinnon and Dworkin urge that we pay as much attention

to the production of pornography as to its consumption and the effiects of that consumption. Third, and most

important, MacKinnon and Dworkin suggest that pornography does more than simply give men bad ideas about

women or cause men to harm women; they claim that pornography itself subordinatts and sikncts women. Thus,

MacKinnon and Dworkin do not construct tile problem of pornography as a conflict about sexual morality and tile

state's role in enforcing it. Nor do they see it as a conflict between the good and bad consequences of free speech. By

attributing to pornography itself the power to subordinate and silence women, MacKinnon and Dworkin argue that

pornography poses a substantial threat to women's equality-so much of a threat, in fact, that women's equality is

unimaginable while pornography continues to exist.

If the MacKinnon- Dworkin analysis is plausible, an argument for a prohibitive policy on pornography based upon it

would not be immediately vulnerable to the objections raised against the earlier feminist analysis (discussed in the

previous section). Furthermore, if the claim that pornography silences

35See tile testimony presented at the Public Hearings in Minneapolis in Pornography and Sexual Violence: Evidence

of the Links (London: Everywornan, 1988); and Linda Lovelace, Ordeal (Secaucus, N.J.: Citadel Press, 1980).

women can be established, then even the most ardent defenders of free speech will have to take note. This, at any

rate, is the hope. However, Dworkin's and MacKinnon's arguments have been subject to considerable criticism.

From within feminist theory, the account of gender and its role in the social construction of sexuality, which

underpins MacKinnon's approach in particular, has met with objections.36 As the essays by Ellen Willis and

Mariana Valverde in Part Three show, there is plenty of debate among feminists concerning the proper way to

formulate tile problem of pornography and about what theoretical and strategic position that problem ought to

occupy on various feminist agendas. Not all contemporary feminists share MacKinnon's view about what

pornography is; far less do they agree on what ought to be done about it.

Neither has MacKinnon's account met with legal success. In 1983, Catharine MacKinnon and Andrea Dworkin

drafted a model anti-pornography ordinance for the city of Minneapolis. The ordinance was premised on a detailed

definition of pornography (which appears in the Legal Appendix) and was devised to allow individual women (and

others who could show they had been treated as women) to seek damages from the consumers, producers, and

distributors of pornography, which they could demonstrate had been harmful to them. This ordinance was passed by

the City Council but vetoed by the mayor. A somewhat modified version of it was proposed in Indianapolis in 1984

with more success, but it was immediately challenged as unconstitutional. Two lower courts determined that the

ordinance was indeed unconstitutional, and the Supreme Court summarily dismissed the appeal to this ruling. (See

the Legal Appendix for details.)

Finally, a cluster of philosophical problems also arise. Not long after tile MacKinnon - Dworkin ordinance appeared,

philosophers began to raise questions concerning the coherence of the claims that pornography is the subordination

of women and that it silences women.37 How is it possible, they asked, that pornography as such could do such

things? Isn't subordination something that only people can do to other people? How could mere

36See, for example, Drucilla Cornell, Beyond Accommodation (New York: Routledge, 1991), chap. 3.

37See Melinda Vadas, "A First Look at the Pornography/Civil Rights Ordinance: Could Pornography Be the

Subordination of Women?" Journal of Philosophy 84 (1987): 487-511; and W. A. Parent, "A Second Look at

Pornography and the Subordination of Women," Journal of Philosophy 87 (1990): 205-211.

representations rob women of the power of effective speech? These objections-along with responses to them by Rae

Langton and Jennifer Hornsby-are discussed in detail in Part Four. Langton and Hornsby attempt to show how speech

act theory-a philosophical account of tile workings of language that emphasizes the things we can do with words can

be used to good effect in defending the twin claims that pornography subordinates and that it silences.

This recent work on speech act theory and pornography certainly makes more plausible tile claims that pornography

subordinates and silences women. But nothing obvious about what can legitimately be done about pornography

follows from the coherence of those claims. Even if it is intelligible to say that pornography is capable of doing

these things, it does not follow automatically that pornography does do them. In his essay "Liberty and

Pornography" (Part Two) and elsewhere,38 Ronald Dworkin argues against the idea that tile problem of pornography

should be constructed as (i) a conflict between women's liberty to participate in the political process and

pornographers' liberty of expression or (ii) a conflict between women's and pornographers' rights to free speech. As

we have already seen, Dworkin is skeptical of the power of pornography-exclusively or overwhelmingly-to limit

women's ability to participate in political decision making and action. Even if this were true, Dworkin argues, "tile

right to free speech [that] includes a right to circumstances that encourage one to speak, and a right that others grasp

and respect what one means to say" is not a right (or rights) "'that any society can recognize or enforce." In other

words, a constitutional or Charter guarantee of free speech does not (and cannot) carry with it a guarantee of "a

sympathetic or even competent understanding of what one says."

This new construction of the problem of pornography has certainly deepened our understanding of what sort of

problem pornography presents, and it raises many new and interesting questions of its own. In particular, as the

papers in this volume make clear, we need to think carefully about the language and concepts we employ in our

discussions about pornography. Could it be, as Elizabeth Fox-Genovese has suggested, that any construction of the

problem of pornography that focuses oil individual rights and liberties will be insufficiently sensitive to

considerations of community and to what we might call public morality? That is, might we not reach a better

understanding

38"Ronald Dworkin, "Women and Pornography," New York Review of Books, 21 Octobcr 1993.

of pornography, its effects, and what we ought to do about it if we were to focus even more fully on contextual

matters?39

An insistence that we pay attention to the context in which pornography is produced and consumed is a central theme

in the work of several feminist writers represented here. It is important to note that this context is the same context

in which we must think about our rights and liberties. This idea is evident in Stanley Fish's essay, "There's No Such

Thing as Free Speech and It's a Good Thing, Too" (Part Two). Speaking about free speech generally, Fish does not

reject the importance of individual rights and liberties, but, he says, we must think about liberty and equality in

concrete, not purely abstract, terms. Human beings, their freedoms, and their status relative to one another are

matters of substance. People and their lives are shaped by the access they have or do not have to certain Political

goods, and effective argument oil public policy (for example, what to do about pornography) Must take these facts

into account. North Americans do live in a world of inequality, and it is arguable that tile abstraction and the

(alleged) neutrality in existing laws make for bad application in actual cases. In the context of inequality, the

deployment of neutral principles runs the risk of Perpetuating that inequality. The ideal of neutrality-of treating like

cases alike-naturally goes along with the ideal of justice as fairness. If we can assume, for the purposes Of public

policy, that all citizens are the same with respect to their access to basic civic goods such as free speech, then the

neutral application of neutral principles is well-motivated. But it is precisely this assumption that is presently under

attack and from a variety of quarters. Thus, it might be suggested that tile problem of pornography is a special case

of what may be the greatest challenge Currently facing Western democracies.

7. Conclusion

We have considered three ways in which tile problem of pornography has been constructed. The first saw the problem

of pornography as a conflict between liberals and conservatives over the moral status of non-procreative sex

39See, for example, Michael Sandel, "Morality and tile Liberal Ideal," New Republic, 7 May 1984, 1.5-17. Such

skepticism regarding the efficacy of individualistic approaches to social policy is now widespread in contemporary

thought and arises for issues other than pornography; for example, see Kathryn Pyne Addeiscm, "Knower/Doers and

Their Moral Problems," in Feminist Epistemologies, ed. Linda Alcoff and Elizabeth Potter (New York: Routledge,

1993), 265-294.

masturbation, and sexually explicit representation; the second as a conflict between the value of free speech and the

disvalue of probable harm to women. The third takes pornography to be a form of sex discrimination. I have outlined

some of the arguments that go along with each of these ways of formulating the problem of pornography as well as

some of the difficulties that beset them. In North America, our sexual morality has changed dramatically during this

century, and given tile reluctance of the courts to engage in legislating morality, perhaps it is better to recognize, as

Catharine MacKinnon suggests, that pornography is "not [only] a moral issue."40 However, the difficulty in

establishing the causal connection between pornography and violence against women renders tile simple harm-based

approach inadequate. Finally, the sex discrimination construction of the problem of pornography opens up a host of

new and nasty political and philosophical queries.

As the essays in this collection make vivid, thinking seriously about pornography is a complicated matter. Not only

is it the case that pornography raises extraordinarily complex philosophical and legal questions; it has also been one

of the most politically charged topics of our time. Perhaps where one stands on the problem of pornography, indeed,

what one takes the problem of pornography to be, is still a litmus test-only now for very different things.

40Catilarine A. MacKinnon, "Not a Moral Issue," Feminism Unmodified (Cambridge, Mass.: Harvard University

Press, 1987), 146-162.

 
 
Copyright 2001 Dr. Ellen Miller. All rights reserved. Document last modified