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According to anti-pornography feminists, pornography is not harmless entertainment or cathartic, therapeutic fantasy. Nor is the harm it causes merely that of offence. Unlike moral conservatives, who object to pornography on the grounds of the obscenity of its sexual explicit content and its corrosive effect on the conservative way of life, the primary focus of the feminist objection to pornography is on the central role that pornography is thought to play in the exploitation and oppression of women. (See e.g., Lederer 1980, Itzin 1992, MacKinnon 1984, 1987, 1995.)
This concern is reflected in the distinctive way anti-pornography feminists tend to define "pornography". As we have seen, conservatives typically define "pornography" as including all sexually explicit material. This definition reflects the fact that conservatives object to pornography's sexual explicitness, which is obscene or appeals to "prurient interests". Anti-pornography feminists, however, do not object to pornography's sexually explicit content per se. They typically draw a more fine-grained distinction within the class of sexually explicit materials, between "pornography", on the one hand, and "erotica", on the other. "Erotica" is generally defined as sexually explicit material premised on equality, which depicts women as genuinely equal and consenting participants in sexual encounters. "Pornography", in contrast, is typically defined as that subset of sexually explicit material that depicts women being coerced, abused, dominated or degraded in such a way as to endorse their subordination. Unlike conservatives, anti-pornography feminists have no objection to material which is merely sexually explicit i.e., erotica. For sexually explicit material of this sort does not harm women. The objection is to pornography: that subset of sexually explicit material that subordinates women.
In 1983, two of the most prominent anti-pornography feminists in the United States, Catharine MacKinnon and Andrea Dworkin, drafted an anti-pornography ordinance at the behest of the Minneapolis Council. A similar ordinance was passed by the Indianapolis City Council in 1984, but later overturned on appeal by the U.S. Supreme Court, on the grounds that the ordinance violated pornographers First Amendment right to freedom of speech. Importantly, the ordinance did not seek to impose criminal prohibitions or sanctions on pornography: it did not seek to make the production, sale or consumption of pornography a criminal offence, punishable by imprisonment (as, for example, producing, selling or consuming heroin is a criminal offence). MacKinnon and Dworkin thought that criminalizing the production, publication or consumption of pornography would be counterproductive, serving to drive the industry underground, thereby only further obscuring the harm it causes to women. Rather, the ordinance sought civil remedies that would enable women who are harmed in the making of pornography, or as a result of its consumption, to sue for a future ban on sexually explicit material demonstrated to be harmful and to collect damages from pornographers for provable harm done by that material. There is some argument about whether the proposed legislation would have amounted to censorship, strictly speaking, since it did not seek to place a prior ban on the publication of pornographic materials. But insofar as the legislation allowed for courts to award and enforce injunctions against publication of material demonstrated to be harmful, many think that the legislation may have been functionally equivalent to censorship in practice (assuming that courts would in fact have been willing to award and enforce injunctions).
The ordinance has been the subject of a heated debate among feminists, many of whom are dubious both about the centrality of pornography's role in the subordination of women and about the desirability of employing strategies of legal regulation in the pursuit of feminist goals. (See e.g., Hunter and Law 1985, Lacey 1998: 71-97, Cornell 2000.) But the ordinance was significant, not least for reconceptualizing the question of pornography in the public arena in feminist terms: not as an issue about obscenity or public indecency, as it had hitherto tended to be viewed in legal and political contexts under the influence of moral conservatives, but as an issue about the civil rights of women. It also provided the definition of pornography that has since featured most prominently in feminist discussions. The ordinance defined "pornography" as a civil rights violation, as a systematic practice of sexual discrimination that violates women's right to equality:
We define pornography as the graphic sexually explicit subordination of women through pictures and words that also includes (i) women are presented dehumanized as sexual objects, things, or commodities; or (ii) women are presented as sexual objects who enjoy humiliation or pain; or (iii) women are presented as sexual objects experiencing sexual pleasure in rape, incest or other sexual assault; or (iv) women are presented as sexual objects tied up, cut up or mutilated or bruised or physically hurt; or (v) women are presented in postures or positions of sexual submission, servility, or display; or (vi) women's body parts including but not limited to vaginas, breasts, or buttocks are exhibited such that women are reduced to those parts; or (vii) women are presented being penetrated by objects or animals; or (viii) women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual. (MacKinnon 1987:176.)
Dworkin and MacKinnon allow that sexually explicit material that treats men, children or transsexuals in sexually dehumanising or subordinating ways also counts as pornography.
The Dworkin-MacKinnon definition has two parts or stages. The first part of the definition defines "pornography" broadly in terms of a certain functional role or, as MacKinnon puts it, in terms of "what it does": it defines "pornography" as that sexually explicit material, whatever it is, that subordinates women.[4] The second part of the definition, the content list (i)-(viii), goes on to list of the sorts of sexually explicit material that MacKinnon and Dworkin think in fact functions to subordinate women, as revealed by the testimonial, experimental, social and clinical evidence. The content list aims to be sufficiently precise so as to minimize the likelihood of legislation against pornography, so defined, threatening other forms of speech-although many "anti-censorship" feminists, along with traditional liberal defenders of pornography, are not convinced that it succeeds (See e.g., Hunter and Law 1985, R. Dworkin 1993).
I draw attention to the two-stages of the definition to reinforce a point made in section 1: that one might agree with Dworkin and MacKinnon that pornography, defined purely functionally or conceptually as sexually explicit material that subordinates women, would be a bad thing; and yet disagree that the material with the features that they go on to list in fact does this. (I think this might help to defuse some of the frequently acrimonious debate in feminist circles surrounding MacKinnon's now famous claim that one cannot genuinely be a feminist and be pro- (or at least fail to be anti-) pornography. For of course feminists are opposed to anything that subordinates or oppresses women. Yet there is surely room for reasonable disagreement about what, if any, sexually explicit material does this, and whether pursuing legal regulation of it is a desirable feminist strategy).
The harms that most concern anti-pornography feminists fall into two broad categories: 1) coercion and exploitation of women actors in the production of pornography; and 2) harms to women, both as individuals and as a group, resulting from the consumption of pornography.
One particularly graphic example of the first sort of harm is documented in a book called Ordeal, written by Linda Marchiano who starred as Linda Lovelace in the famous pornographic film Deep Throat (see Lovelace 1980). In Ordeal, Marchiano tells of how she was abducted, hypnotized, drugged, beaten and tortured in order to perform her starring role. Marchiano was one of a number of women who testified about their experience of the harm caused by pornography at the Minneapolis hearings into pornography in 1983. (The transcript of the hearings is published as Pornography and Sexual Violence: Evidence of the Links 1988.) Marchiano's case is a particularly horrifying and extreme example of how women may be harmed in the making of pornography; and much of what was done to Marchiano (the abduction, the beatings and the torture) are criminal offences in their own right. Many, both liberals and feminists, think that since these physical assaults should not be allowed, enduring pornographic representations of these crimes that cause further harm to the victim's interests should not be permitted to be distributed or consumed either (See e.g., MacKinnon 1987, Wendell 1983).
Of course, not all women who perform in pornography are literally physically coerced as paradigm slaves are, and as Marchiano was. Nonetheless, many anti-pornography feminists are concerned that there is an important sense in which the choice to participate in the making of pornography may not be a genuinely free one for many of the women who perform in it, who often come from underprivileged socio-economic backgrounds and who have few alternative options for making a living. Under these circumstances, there may be an important sense in which the choice to perform in pornography is coerced, insofar as the women would not have chosen to perform in pornography had other reasonable options been available to them. The pornography industry may take unfair advantage of underprivileged women, preying on their psychic and economic vulnerability, to reap enormous profits at their expense. MacKinnon puts the point graphically: pornography is a public institution of sexual slavery, trafficking in vulnerable women and children, and profiting from their suffering and subjugation.
Some of the women who perform in pornography vigorously reject the claim that they are exploited. At least in their own case, they argue, the decision to become a porn star was a genuinely autonomous one. (See Gruen and Panichas 1997.) They regard the claim that they are victims of exploitation as offensively patronizing and paternalistic, implying that pornography is not a worthwhile or valid career choice, and portraying the women who act in pornography as hapless dupes of patriarchy. In reality, female porn actors may be fully autonomous and intelligent citizens pursuing a perfectly valid and rewarding career of their own choosing. Banning pornography, they argue, would constitute unjustified paternalistic interference with their right to pursue their career of choice. Of course, that the decision to pursue a career in pornography is a free and fulfilling one for some women does not go to show that it is necessarily a free and fulfilling choice for all or even most of the women who perform in pornography.
Even if the pornography industry does exploit some of the women who perform in it, however, there is a question about whether this justifies disallowing it. As a number of feminists and liberals have noted in reply, other industries (such as supermarkets or fast food chains) may likewise take advantage of workers with few alternative opportunities. Should these too be banned on grounds of exploitation? Surely not, they think. The best solution to such exploitation is arguably not to ban pornography (or fast food chains). For this would only further deprive those already deprived of one more option, and one that they might prefer over others of the limited range available to them. We may do better to focus our efforts on redressing the underlying economic and material conditions of disadvantage that make exploitation possible, so that the choice to perform in pornography might be made, if it is made, as a genuinely free one, under fuller conditions of equality. (See e.g., Dworkin 1993; Wendell, 1983.)
Second, anti-pornography feminists point to a range of harms to women that result from the consumption of pornography. (For a variety of analyses here see A. Dworkin 1981, MacKinnon 1987, Jeffreys 1990, Kappeler 1986, Coward 1984, Smart 1989: ch. 6, Itzin 1998.) These may include, but are not limited to, pornography's role as a cause of violent sexual crime. Some feminists in the U.K. have argued for anti-pornography legislation on the model of existing U.K. laws preventing racial incitement: pornography is speech that incites sexual violence, and prohibition of such speech as incites sexual violence is justified for the same reason as prohibitions against racially incendiary speech, namely, to protect the physical security and bodily integrity of individuals. (See e.g., Itzin 1992)
Other feminist arguments focus instead, or as well, on the broader role pornographic representations may play in harming other of women's significant interests. Some have suggested that pornography can be viewed as a sort of false advertising about women and sexuality, or as being akin to libellous speech: speech that defames women as a group, causing corresponding harm to their reputation, credibility, opportunities and income expectations. They argue that women as a group have a right to (civil) legal protection from these harms, and to claim for compensation for such harm as pornographic speech can be demonstrated to have produced. (See Longino 1980, Hill 1987, MacKinnon 1995: 3-28. For criticism see Sobel 1985). This is a promising strategy for anti-pornography feminists, since many liberals already accept that individuals have a right to protection from libellous or defamatory speech.
Other feminist arguments focus on the related role pornography may play in restricting women's autonomy, by reproducing and reinforcing a dominant public perception of the nature of women and sexuality that prevents women from articulating and exploring their own conceptions of sexuality and of the good life. (Easton 1994, Dyzenhaus 1992.)
Yet another line of feminist argument draws on the work of the prominent liberal philosopher, John Rawls, to suggest that regulation of pornography is justified insofar as rational, self-interested individuals in the original position would not agree to basic social institutions that "asymmetrically either forced or gave strong incentives to members of one sex to become sex objects for the other" (Okin 1987:68). Rae Langton (1990) also seeks to use liberals' own theoretical commitments to make a (liberal) case for the legitimacy of censorship, though her chosen liberal is Ronald Dworkin. Langton seeks to turn the tables on Dworkin's argument in an ingenious way, arguing that a consistent application of Dworkin's own principles actually supports a policy that prohibits pornography, rather than the permissive policy he himself favours. For preferences to consume pornography necessarily depend on external preferences about the inferior worth of women that violate women's right to moral independence. Furthermore, positive arguments for prohibiting pornography may aim at securing social equality for women. If this is the goal then, by Dworkin's own lights, pornographers would have no rights against a prohibitive policy.
Many of these concerns figure in a somewhat new light in a significant, rights-based strand of feminist argument, associated most prominently with Catharine MacKinnon. Since this approach has provoked particular interest and discussion among both liberals and feminists, and has come to constitute a dominant framework for much of the contemporary debate between liberals and feminists over pornography, it is worth examining it in more detail. According to MacKinnon, pornography harms women in a very special and serious way: by violating their civil rights (MacKinnon 1984, 1987, 1992). In particular, pornography subordinates women or violates their right to equal civil status; and it silences them or violates their civil right to freedom of speech.
Pornography subordinates women by sexualising their inequality. Pornography both expresses the view that women exist primarily as objects for men's sexual gratification-that they are men's sexual slaves, and frequently their willing sexual slaves-and it propagates this view, by conditioning consumers to regard women's subordination as a sexy, natural and legitimate feature of normal heterosexual relations. Pornography "sexualises rape, battery, sexual harassment, prostitution and child sexual abuse, it thereby celebrates, promotes, authorizes and legitimises them." (MacKinnon 1987:171-72). By authorizing and legitimating the subjection of women, pornography makes the very real harm of women's subordination invisible as harm: rape, harassment and other forms of oppression come to be seen simply as sex. "The harm of pornography, broadly speaking, is the harm of the civil inequality of the sexes made invisible as harm" (MacKinnon 1987: 178). The view of women and sexuality that pornography helps to form and perpetuate manifests itself not simply in crimes of sexual violence against women, but in discrimination against women more generally: in the legal system, in politics and public debate, and in the workplace. Pornography "institutionalizes the sexuality of male supremacy...Men treat women as who they see women as being. Pornography constructs who that is" (MacKinnon 1987:172). By conditioning consumers to view and treat women as their sexual subordinates, pornography undermines women's ability to participate as full and equal citizens in public, as well as private, realms.
One significant dimension of this inequality is that women's speech, where it occurs, lacks the credibility, authority and influence of men's. Women as a group are systematically and differentially silenced, MacKinnon thinks; and pornography contributes to this in at least three ways (MacKinnon 1987, 1995).
First, pornography silences women by helping to shape and reinforce a hostile and uncomprehending social environment which makes many women reluctant to speak at all. Thus, for example, rape, sexual harassment and other violent sexual crime is significantly underreported by women.
Second, pornography creates a social climate in which, even where women do speak, their opinions are frequently paid little serious attention-especially where what women say contradicts the picture of women contained in pornography. Thus women who do report sexual crime are often disbelieved, ignored, ridiculed, or dismissed as neurotic. In MacKinnon's words, pornography "strips and devastates women of credibility, from our accounts of sexual assault to our everyday reality of sexual subordination. We are stripped of authority and reduced and devalidated and silenced". (MacKinnon 1992: 483-4.)
Third, pornography may silence women by causing their speech to fail to be understood, or to be misunderstood. For example, pornography may help to form and reinforce the general view that women who utter no in sexual contexts frequently do not intend to refuse a man's sexual advantages by so speaking, and indeed may often intend to further encourage them. In a social environment in which this expectation is prevalent, women may not be able to successfully communicate the idea of refusal to others: although they may utter the appropriate sounds (e.g., no), those sounds may frequently fail to communicate the idea they were intended to express. Pornography may thus prevent women from communicating their ideas to others, not by preventing them from producing or distributing sounds and scrawls, but by preventing those sounds and scrawls from being understood by hearers as expressing the idea they were intended to express. (See Langton 1993, Hornsby 1995, Hornsby and Langton 1998, West 2003. For replies to Hornsby and Langton see Jacobsen 2001, Bird 2002). If pornography silences women in this way, there may be some reason to be sceptical that the solution preferred by many liberals (and feminists) of countering the harms of pornography with more speech-protest, satire, education and public debate-will be effective. For pornography may make the relevant speech acts "unspeakable" for women.
For MacKinnon, then, a desire for pornography and sexual violence is not an epiphenomenal symptom or side-effect of other material and social conditions that lie at the root of women's subordinate position in society, as some other feminists are inclined to think. Rather, it is a central cause of the subordinate position of women in society. So long as there is pornography, MacKinnon thinks, women will remain subordinate and silenced.
One novel and strategically ingenious feature of MacKinnon's argument against pornography (and one that has provoked much of the more recent interest and debate) is her conceptualisation of the harm of pornography as the violation of women's civil rights, of which sexual violence against women may be but one, albeit significant, dimension. The violation of civil rights is a harm that most liberals have special reason for taking very seriously. For while some liberals understand the notion of "harm" to others very narrowly, as including only physical interference with a person's bodily integrity (e.g., murder, battery, torture, kidnap, rape and other such physical assaults etc.), most liberals nowadays are inclined to accept a slightly broader interpretation of the harm principle. On this broader, interest- or rights-based interpretation of the harm principle, any speech or conduct that wilfully or negligently interferes with important interests or rights of others is harmful conduct. On this interest-based interpretation of the harm principle, the state is entitled to pass laws against conduct that deliberately or negligently interferes with the rights of others, just so long as the rights-violation is sufficiently serious and the harm cannot effectively be prevented by other, less costly means (for example, through public education or debate). Of course, how this version of the harm principle applies depends crucially on the nature and relative importance of the rights that individuals have; and this is the subject of much ongoing debate.
Some liberals have accepted that pornography may contribute to women's subordination: if not by directly causing crimes of sexual violence, then at least by conditioning consumers to view women as sex objects, rather than as autonomous individuals worthy of equal concern and respect. They grant that this may contribute to discrimination against women in society, and that it may prevent women from having the same social and political influence that men generally possess. But, they argue, this harm is not sufficiently great to justify interfering with pornographers' freedom of speech. The right to freedom of expression is a more important right. So, if we have to choose between the right to equality (of women) and the right to freedom of speech (of pornographers), we must choose freedom of speech.[5] But MacKinnon's argument, if successful, would turn the tables on these traditional liberal defences of pornography: pornography could no longer be defended simply on the grounds of the primacy of the right to freedom of speech, for permitting pornography violates womens right to freedom of speech too. We now seem to have a conflict of rights: not simply between pornographers' right to freedom of speech and women's right to equal civil status, but within the right to freedom of expression itself-between pornographers' right to freedom of speech and women's right to freedom of speech. Why should pornographers' right to freedom of expression take precedence over women's? I will return to the debates surrounding this question in the next section.
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