digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1993 Feminist Critique of the Feminist Critique of Pornography, A Essay Nadine Strossen New York Law School Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Recommended Citation 79 Va. L. Rev. 1099 (1993) 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. ESSA Y A FEMINIST CRITIQUE OF "THE" FEMINIST CRITIQUE OF PORNOGRAPHY' 2 Nadine Strossen TABLE OF CONTENTS INTRODUCTION: THE FEMINIST ANTI-CENSORSHIP MOVEMENT ................................................. 1103 I. THE FEMINIST PRO-CENSORSHIP FACTION IS STILL INFLUENTIAL ........................................... 1114 A. Public Opinion ...................................... 1114 . (Mis)alliancewith Conservative Censorship Advocates . 1114 C. Governmental Assaults on Sexually Explicit Speech ... 1116 D. Governmental Initiatives against "Pornography"..... 1120 E. Sexual HarassmentLaw ............................. 1122 F. Impact in Other Countries ........................... 1126 1 See Catharine A. MacKinnon, Not a Moral Issue, 2 Yale L. & Pol'y Rev. 321, 325 (1984) ("Pornography, in the feminist view, is a form of forced sex .... an institution of gender inequality." (emphasis added)). 2 Professor of Law, New York Law School; President, American Civil Liberties Union; A.B. 1972, Harvard-Radcliffe College; J.D. 1975, Harvard Law School. Professor Strossen is a founding member of Feminists for Free Expression, see infra text accompanying notes 35-37, and a member of the National Coalition Against Censorship's Working Group on Women, Censorship & "Pornography," see infra text accompanying note 41. This paper grew out of a lecture that Professor Strossen delivered at the University of Virginia School of Law in September 1992. Some passages are drawn from Nadine Strossen, The Convergence of Feminist and Civil Liberties Principles in the Pornography Debate, 62 N.Y.U. L. Rev. 201 (1987) (reviewing Women Against Censorship (Varda Burstyn ed., 1985)). The author thanks Carolyn Richmond for having provided the "lioness' share" of the research assistance. For additional such assistance, she thanks Dennis Cauchon, Jon Cummings, Marjorie Heins, Jennifer Lopes, Thelma McCormack, Nancy Meyers, William Mills, Joseph Molinari, Robert Peck, Catherine Siemann, and Phillip Stillman. She is especially grateful to Leanne Katz, Carlin Meyer, and Marcia Pally for the benefit of their thinking and writing on the issues discussed. Last, but far from least, she thanks the New York Law School administration for its generous support of her research and writing. 1099 1100 Virginia Law Review [Vol. 79:1099 II. POINTS OF AGREEMENT AND DISAGREEMENT AMONG PRO- AND ANTI-CENSORSHIP FEMINISTS ................ 1127 A. EducationalAspects of the Anti-"Pornography" Movem ent ........................................... 1127 1. Ambiguous Aspects of "Pornographic"Imagery ... 1128 2. Positive Aspects of "Pornographic"Imagery ....... 1131 B. Anti- "Pornography"Strategies Based on Private Persuasion .......................................... 1134 C. Punishment of Violent or Discriminatory Conduct .... 1136 D. Posingfor "Pornography" ........................... 1137 1. Coerced Posing .................................. 1137 2. Consensual Posing ............................... 1138 III. CENSORING "PORNOGRAPHY" WOULD UNDERMINE WOMEN'S RIGHTS AND INTERESTS ...................... 1140 A. Any Censorship Scheme Would Inevitably Encompass Many Works that are Especially Valuable to Fem inists ........................................... 1141 B. Any Censorship Scheme Would Be Enforced in a Way that Discriminatesagainst the Least Popular,Least Powerful Groups in Our Society, including Feminists and Lesbians ........................................ 1143 C. Censorship Is Paternalistic,Perpetuating Demeaning Stereotypes about Women, including that Sex Is Bad for Us .............................................. 1147 D. Censorship Perpetuates the DisempoweringNotion that Women Are Essentially Victims ...................... 1151 E. Censorship Distractsfrom Constructive Approaches to Countering Anti-Female Discriminationand Violence. 1153 1. Distractionfrom Real Causes of and Solutions to Gender Inequality ............................... 1154 2 Distractionfrom Real Causes of and Solutions to Misogynistic Violence ............................ 1156 3. "Blaming the Book" and "Blaming the Victim".. 1159 F. Censorship Would Harm Women Who Make a Living in the Sex Industry .................................. 1162 G. Censorship Would Harm Women's Efforts to Develop Their Own Sexuality ................................ 1163 1993 A Feminist Critique 1101 H. Censorship Would Strengthen the Religious Right, Whose PatriarchalAgenda Would Curtail Women's R ights .............................................. 1165 L By Undermining Free Speech, Censorship Would Deprive Feminists of a Powerful Tool for Advancing Women's Equality ................................... 1167 1. Anti-"Pornography" Movement's Use of "Pornography".................................. 1167 2. Effect of Debriefings in Laboratory Studies Regarding the Impact of Exposure to "Pornography" .................................. 1167 3. Free Speech Consistently Has Been an Important Ally of the Women's Rights Movement; Censorship Consistently Has Been Its Enemy ................ 1169 J Freedom for Sexually Explicit Expression Is an EssentialAspect of Human Freedom; Restricting It Undermines Human Rights More Broadly ............ 1171 IV. THE ARGUMENT THAT CENSORING "PORNOGRAPHY" WOULD REDUCE DISCRIMINATION OR VIOLENCE AGAINST WOMEN IS SPECULATIVE AT BEST ............ 1173 A. The Flawed Assumption that the Effective Suppression of "Pornography" Would Significantly Reduce Exposure to Sexist, Violent Imagery .................. 1174 B. The Flawed Assumption that Censorship Would Effectively Suppress "Pornography" .................. 1175 C. The Flawed Assumption that Exposure to Sexist, Violent Imagery Leads to Sexist, Violent Behavior .... 1176 1. Laboratory Research Data ....................... 1176 2. CorrelationalData ............................... 1183 CONCLUSION ................................................. 1185 APPENDIX: LETTER FROM FEMINISTS FOR FREE EXPRESSION TO THE SENATE JUDICIARY COMMITTEE, OPPOSING THE PORNOGRAPHY VICTIMS' COMPENSATION ACT .......... 1188 1102 Virginia Law Review [Vol. 79:1099 The radicalmessage offeminism is the recognition that equality is not just a measure of equalization or fairness ... but ... part of a largerstruggle for social change... Equalpay for work of equal value is no more or less important than the right of women to explore the range and depths of human experience, the diverse models of human relations as well as the psychological limits and beyond of acceptable behavior. If we are ever to find our own identity and give equality a social meaning, there is a process of cognitive reflection and emotional insight; we must be free to think about saints and sinners ... slavery and freedom, deviants and conformists, sadists and martyrs, Mother Teresa and Madonna. State censorship denies us that experience .... - Thelma McCormack Sexual expression is perhaps the most fundamental manifestation of human individuality. Erotic material is subversive in the sense that it celebrates, and appeals to, the most uniquely personal aspects of an individual's emotional life. Thus, to allow freedom of expression and freedom of thought in this realm is to ... promote diversity and non- conformist behavior in general .... It is no coincidence that one of thefirst consequences of democratiza- tion and political liberalization in the former Soviet Union, Eastern Europe and China was a small explosion of erotic publications. Suppression of pornography is not just a free-speech issue: Attempts to stifle sexual expression are part of a larger agenda directed at the suppression of human freedom and individuality more generally.4 - Gary Mongiovi 3 Thelma McCormack, If Pornography is the Theory, Is Inequality the Practice? 12 (Nov. 1992) (unpublished paper delivered at public forum held in York, Canada, Refusing Censorship: Feminists and Activists Fight Back) (on file with the Virginia Law Review Association). 4 Letter to the Editor, Civil Liberties, Spring/Summer 1991, p. 2, from Gary Mongiovi, Ph.D., an economist who teaches at St. John's University. 1993 A Feminist Critique 1103 INTRODUCTION: THE FEMINIST ANTI-CENSORSHIP MOVEMENT 0 VER the past decade, some feminists-led by Andrea Dworkin' and Catharine MacKinnon 6 -have had great influence in advancing the theory that certain sexually oriented speech should be regulated because it "subordinates ' 7 women.' They have labeled this subset of sexually explicit speech "pornography" to distinguish it from the separate subset of sexually explicit speech that the Supreme Court has defined as proscribable "obscenity." 9 This Essay counters the Dworkin-MacKinnon pro-censorship position with an argument grounded in feminist principles and concerns. It refers to objections that are based on traditional free speech principles only in passing. The term "pornography" is so vague, subjective, and expansive that it could apply to all sexually oriented speech. Even the so-called "Meese Pornography Commission," 10 which advocated strict govern- 5 See, e.g., Andrea Dworkin,