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Against Porn-Suppression digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1994 Sex, Sin, and Women’s Liberation: Against Porn- Suppression. Carlin Meyer New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Part of the Law and Gender Commons, and the Sexuality and the Law Commons Recommended Citation 72 Tex. L. Rev. 1097 (1993-1994) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. Sex, Sin, and Women's Liberation: Against Porn- Suppression Carlin Meyer* I. Preface Men treat women as who they see women as being. Pornography constructs who that is .... [P]ornography is the essence of a sexist social order, its quintessential social act. -Catharine A. MacKinnon Given the cultural history we have inherited from Rabelais to Sade to Magritte, it would be foolhardy to think we can dismiss, segre- gate, or eliminate dehumanizing or violent constructions of male and female sexuality. -Susan Gubar 2 Feminist porn-suppressionists3 claim that pornography4 "constructs" * Associate Professor, New York Law School. J.D. 1974, Rutgers; LL.M. 1988, Yale. For their invaluable comments, criticisms, and support, heartfelt thanks to Ed Baker, Arthur Berney, Robert Blecker, David Cole, Martha Fineman, Karen Gross, Karl Klare, Sylvia Law, Janet Levy, Jethro Lieberman, Jules Lobel, Leonard Meyer, Rudy Peritz, and Nadine Strossen. For their patient assistance in every pbase of research and production, thanks to Marcy Melnikoff, Rose Benedetto, Junling Ma, Christine Huebner, Leo Gordon, Joe Molinari, and Kate McLeod. 1. CATHARINE A. MAcKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAw 148, 154 (1987) [hereinafter MAcKINNON, FEMINISM UNMODIFIED]. 2. Susan Gubar, Representing Pornography, in FOR ADULT USERS ONLY: THE DILEMMA OF VIOLENT PORNOGRAPHY 65 (Susan Gubar & Joan Hoff eds., 1989). 3. I use this term to distinguish feminists who favor porn-suppressiondue to its effects on women, such as law professor Catharine MacKinnon and writer Andrea Dworkin, from others who favor it for religious and moral reasons (I mean to include the latter when I omit the adjective "feminist"), as well as from feminists like myself who agree that much pornography pictures women in degrading ways but, nevertheless, oppose suppression of it. The term "feminist" includes both men and women. 4. As numerous writers have noted, it is notoriously difficult to define pornography, and most definitions ultimately rest more on theprejudgments and prejudices of viewers than on clear delineation. See, e.g., JEFFREY WEEKS, SEXUALITYAND ITS DISCONTENTS: MEANINGS, MYTHS AND MODERN SEX- UALITIE 232 (1985) ("'[P]ornography' is an exceptionally ambiguous yet emotive term which takes on different meanings in different discussions."); cf. LINDA WILLIAMS, HARD CORE: POWER, PLEASURE AND THE "FRENzy OF THE VISIBLE" 2 (1989) (discussing the futility of "attempting some 1097 1098 Texas Law Review [Vol. 72:1097 the way men see and treat women, "eroticises"5 gender inequality and male sexual abuse of women, and "silences" 6 women. So, they urge, just get rid of it; take this sexually explicit, vulgar, and unsettling imagery and suppress it.7 Pass ordinances defining it as discriminatory because it is degrading and injurious to women, and enjoin publication and dissemina- tion of offending images. Even if we do not thereby end gender discrimi- nation, we will surely make a dent in it, and in the meantime, we will be free of pornography's ugly and oppressive presence! definition of this most difficult and politically charged term"); SUSAN SONTAG, The Pornographic Imagination, in STYLES OF RADICAL WILL35, 35 (1969) (clarifying three types of pornography, includ- ing "an item in social history ... a psychological phenomenon... [and a] modality or convention within the arts"). For purposes of this Article, I use the terms "pornography" or "porn" to refer loosely to sexually explicit depiction arguably within the definitional boundaries of feminist-authored, anti-pornography ordinances. For that definition and a discussion of it, see infra section D(B)(1). 5. Catharine MacKinnon and Andrea Dworkin, the main theorists of porn-suppression, claim that pornography, by making male abuse of women seem erotic ("eroticizing" it), encourages and impor- tantly undergirds misogyny and sex discrimination. For MacKinnon, "the erotization of [male] dominance and [female] submission" is "central" in the subordination of women to men. MACKINNON, FEMINISM UNMODIFIED, supra note 1, at 152. Pornography, which "eroticises" male dominance and is "central to [its] institutionalization," is therefore a "core constitutive practice" of gender discrimination. Id. at 146, 148-49; see also Susan G. Cole, Pornography:What Do We Want?, in GOOD GIRLS/BAD GIRLS: FEMINISTS AND SEX TRADE WORKERS FACE TO FACE 157, 161 (Laurie Bell ed., 1987) [hereinafter GOOD GIRLS/BAD GIRLS] ("The best way to institutionalize a dynamic of power is to eroticize it."). It is this claim, which concerns the importance of pornography in fostering misogynist ideology and acts, that I address in this Article. For other claims concerning direct linkagebetween pornography and specific acts of violence against women, also addressed by feminist anti-pornography ordinances, see infra note 8 and note 63 with accompanying text. 6. For a discussion of the "silencing" claim, see infra subpart II(E). 7. Feminist porn-suppression efforts center on gaining passage of ordinances that define pornog- raphy as a "practice" of gender discrimination and permit anyone harmed hy its presence to seek to enjoin production, distribution, or display of offending images. Hereinafter I use the terms "images" and "imagery" to mean verbal as well as pictorial depiction. Suppression advocates and their allies also use nongovernmental avenues such as puhlic pressure and self-help suppression of purportedly porno- graphic work. For discussion of anti-porn ordinances, see infra section n(B)(1). For examples of private and self-help suppression, see infra notes 65, 101, 102, and accompanying text. 8. In this Article, I focus only on the claim that pornography fosters and is centrally responsible for misogynist views and, indirectly, men's treatment of women. Porn-suppressionists argue, in addition, that pornography causes direct harm to women: to models coerced and abused in its produc- tion, and to victims of those whom porn supposedly directly propels to commit violent and abusive acts. See, e.g., MACKINNON, FEMINISM UNMODIFIED, supra note 1, at 157, 187. These claims have been extensively addressed by others, who have shown that neither claim offers convincingjustification for suppressing porn. See LYNNE SEGAL, SLOW MOTION: CHANGING MASCULINITIES, CHANGING MEN 223-25 (1990) [hereinafter SEGAL, SLOW MOTION] (reviewing the literature on the causal connection between pornography and violence, and highlighting the failure of the research to identify a firm connection); Augustine Brannigan, Obscenity and Social Harm:A ContestedTerrain, 14 INT'L J.L. & PSYCHIATRY 1, 3-5 (1991) (arguing that the evidence that social scientists typically examine to demonstrate the link between pornography and sex crimes is flawed and unreliable); Ben Kutchinsky, Pornographyand Rape: Theory and Practice?, 14 INT'LJ.L. & PSYCHIATRY 47, 61 (1991) (determin- ing that in four countries in which porn prevalence went from "extreme scarcity to relative abundance," in no country did rape increase more than nonsexual crime and that in all but the United States, "rape increased less than nonsexual assault"); see also DANIEL LINZ & NEIL MALAMUTH, COMMUNICATION 1994] Sex, Sin, and Women's Liberation 1099 Who could object? Only "sexual liberals" who want a world where everyone can write, portray, say whatever they want-no matter the cost to women.9 On the other hand, those who take seriously the pervasive sexual violence against women-rape, mutilation, spousal and child abuse, sexual harassment-would surely agree on the benefits of ridding society of pornography. Or would we? Granted, pornography often depicts women in dehu- manizing ways-violated, subjugated, dominated, and degraded. The displays of breasts and buttocks screaming for attention from magazine stalls and not-so-hidden in back corners of video rental stores, as well as the crass sexist photos and cartoons of Hustler and Playboy, are often among the most blatant, vulgar, and ugly expressions of patriarchal soci- ety's reduction of women to "tits and ass" available for the taking-to be used, abused, bought, sold, dissected, digested, violated, molested, muti- lated, and killed. Certainly, a world that did not produce such imagery would probably be a far better world for women.'0 But will the effort to suppress these images help change the society CONCEPTS 5: PORNOGRAPHY 46-47 (1993) (noting that studies show that individual predisposition to sexual violence strongly influences the receptivity to pornographic violence); MARCIA PALLY, SENSE AND CENSORSHIP: THE VANITY OF BONFIRES 40 (1991) (citing a study that found a greater correlation between reading Field and Stream and committing sex crimes than between viewing porn and commit- ting sex crimes); George C. Thomas I1, A Critique of the Anti-PornographySyllogism, 52 MD. L. REV. 122, 124 (1993) (reviewing the literature and finding that "evidence... of a lack of causal link
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