In response to:
Women and Pornography from the October 21, 1993 issue
To the Editors:
This letter is not part of a dialogue over pornography or my book, Only Words. NYR consistently makes sure that its articles defend pornography and do not take its harm to women and children seriously. Dissent from this point of view is confined to letters which must focus on correcting the factual errors in the articles. This letter is no exception.
Even in this editorial context, Ronald Dworkin’s review of my recent book [NYR, October 21, 1993] is startlingly incompetent, inconsistent, and ignorant.
It is appalling to read that the equality argument advanced in my book is a “new argument.” In 1983, Andrea Dworkin and I advanced our equality approach to pornography through our ordinance allowing civil suits for sex discrimination by those who can prove harm through pornography. Since then, every argument we have advanced to support this initiative has been an equality argument. Every harm pornography does is a harm of inequality, and we have said so. Equality was the “compelling state interest” urged in support of the Indianapolis ordinance. Equality was the central argument in writing of mine that Ronald Dworkin criticized previously. Equality was Andrea Dworkin’s argument against Ronald Dworkin’s defense of pornography in a debate with him at Davis in the mid-1980s. She even read to him about equality from his work.
Are we to understand that it took him until now to hear it? This is one example of the “silence” he has such trouble understanding. In it, nothing women say is real. Now, after a decade of respectfully repeating ourselves, it becomes clear that he has had no idea what we have been saying, hence no idea what he was talking about.
Maybe a decade from now he will figure out the argument that is new, or newly developed, in Only Words: the argument on pornography’s status as “speech,” that pornography is what it does, not what it says. In light of this, Professor Dworkin’s discussion of protecting “views,” “ideas,” “opinions,” and “tastes” through protecting pornography is beside the point. We are talking about acts of discrimination: sex-based coercion, force, assault, and trafficking in sexual subordination. His discussion of the “offensiveness” of pornography is equally irrelevant to its actual harms. The book repeatedly explains this. It is one thing to disagree on these points; it is another to miss them. To join issue, Professor Dworkin should now explain, instead of assume, how pornography really is about “ideas,” or how being discriminated against on the basis of sex really is just “being offended.”
If his missing the point of the book is surprising, his misstatement of the Seventh Circuit’s decision in American Booksellers v. Hudnut, which ruled on the Indianapolis version of our pornography ordinance, is shocking. Ronald Dworkin says that the court “assumed that pornography is a significant cause of sexual crime only for the sake of the argument it made” and cited other sources “as support for the Court’s own denial of any such demonstrated causal connection.” This is false.
The court said this, unedited, emphasis supplied:
Indianapolis justifies the ordinance on the ground that pornography affects thoughts. Men who see women depicted as subordinate are more likely to treat them so. Pornography is an aspect of dominance. It does not persuade people so much as change them. It works by socializing, by establishing the expected and the permissible. In this view pornography is not an idea; pornography is the injury.
There is much to this perspective. Beliefs are also facts. People often act in accordance with the images and patterns they find around them. People raised in a religion tend to accept the tenets of that religion, often without independent examination. People taught from birth that black people are fit only for slavery rarely rebelled against that creed; beliefs coupled with the self-interest of the masters established a social structure that inflicted great harm while enduring for centuries. Words and images act at the level of the subconscious before they persuade at the level of the conscious. Even the truth has little chance unless a statement fits within the framework of beliefs that may never have been subjected to rational study.
Therefore we accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. In the language of the legislature, “[p]ornography is central in creating and maintaining sex as a basis of discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it produces, with the acts of aggression it fosters, harm women’s opportunity for equality and rights [of all kinds.]” [citation omitted]. Yet this simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation. Pornography affects how people see their world, their fellows, and social relations. If pornography is what pornography does, so is other speech. Hitler’s orations affected how some Germans saw Jews.
This statement unambiguously “accept[s]” what pornography is said to do, because there is “much to” it. Its harms are observed to include sex crimes (rape) but are not confined to them, as sex inequality is not so confined.1 The court could have said it accepted the harms of pornography “only for purposes of argument.” It did not.
Actually, the court misses Indianapolis’s argument in the same way Professor Dworkin misses ours. Both Indianapolis and my book argue that what matters for law is how pornography affects behavior, not “thoughts”; the ordinance made some of that behavior, and no thoughts, actionable. Our argument is not that ideas and actions are causally connected, although they no doubt are. It is that pornography is factually connected in many ways to a whole array of tangible human injuries.
The court observes in a footnote that it is accepting the legislative resolution of a disputed empirical question. It could have found the empirical support for the legislation insufficient; it found to the contrary. It did not have to adopt the legislative view as its own; it did. There were no legislative findings on slavery or the Holocaust, yet the court’s views on these subjects were presented to support its view on the parallel relation between those literatures of inequality and attendant harms.
In other words, far from denying a demonstrated causal connection between pornography and social harms, this court explicitly embraced one. It went on to say that the materials matter more than the people who are harmed through them. Criticizing this was my point in Only Words, one of many Professor Dworkin evades.
That the Seventh Circuit accepts that pornography causes harms as its own position is indisputably reasserted in a later case, involving no legislative review. In Schiro v. Clark, expert evidence supported the lower court’s finding that Thomas Schiro, convicted of rape and murder, could not appreciate the wrongfulness of his acts, due to his extensive consumption of sadomasochistic pornography and snuff films. Whether he can be executed turned in part on whether this conclusion can be drawn from this evidence.2 The reviewing court, which included the author of Hudnut, faced a dilemma: having decided that pornography causes rapes but must be permitted, must it also permit the rapes pornography causes, because it causes them? The court stated that “the recognition in Hudnut that pornography leads to violence against women does not require Indiana to establish a defense of insanity by pornography” (emphasis added). It refused “to tell Indiana that it can neither ban pornography nor hold criminally responsible persons who are encouraged to commit violent acts because of pornography!” To repeat: Hudnut held that pornography “leads to” violence against women. Schiro recognized that persons like Schiro exist, who “are encouraged to” commit violent acts because of pornography. Both are causal connections.
Professor Dworkin’s review begins by conceding the gendered nature of pornography and then forgets it. Expressed concern for women is a figleaf behind which to write as if women do not exist. Reports from women’s real lives are then trivialized as “intended to shock.” Apparently Ronald Dworkin’s life has shielded him from their reality. Maybe we can spread the privilege, so some day more women can feel incredulity rather than recognition when encountering these atrocities on a page.
Although his tone is formally respectful, he often demeans the book instead of coming to grips with it. “Grim” is my view of the world, without discussion of whether the fun world “we” presumably live in is real or for whom. Direct address to listeners and readers—my invitation that you imagine yourselves being abused like the women in the materials (which for many readers calls on memory, not imagination)—is “rhetorical” stereotyping of “all female readers.” Is it that unthinkable, Professor Dworkin, that I am talking to you?
When otherwise at a loss for a rock to throw, he questions the intellectual honesty of the author. On the Indianapolis ruling, I am “disingenuous.” See above. Dismissing the book’s main argument as “intellectual sleight of hand” is as close as he gets to it. At the same time, he concedes much of it. In his view of equality, “Sexists and bigots have no right to live in a community whose ideology of culture is even partially sexist or bigoted.” But nobody has a right to stop them? Search me.
It is absurd to have to publish, in the only space I am allowed here, columns of Judge Easterbrook’s ruling on pornography’s harms, in order to defend craft values on a point that is not even a matter of interpretation. It is also more than absurd. If this space were not wasted establishing the incontestable, we might have a real discussion. What would be the risk? It is time to consider that misrepresentation, shoddy scholarship, ignorance, and evasion are all pornography’s defenders have to offer. It is past time to conclude that reviews like this pose as an exchange of ideas but are really whatever-it-takes defenses of an article of faith and a vested interest. It is beginning to look like one cannot face facts, address the real arguments, and still defend pornography. After a decade of recycled junk from liberals like Ronald Dworkin to conservatives like Judge Richard Posner, from kept writers in pornography magazines to scholars who should know better—a distance increasingly measurable in millimeters and microseconds—we wait. And women continue to be ground down.
Catharine A. MacKinnon
Ronald Dworkin replies:
Professor MacKinnon says that my review of her book is incompetent, inconsistent, ignorant, appalling, shocking, rock-throwing junk, and that there is next to no difference between me and “kept writers in pornography magazines.” This carpet bombing is aimed mainly at my two-sentence discussion, in a footnote, of the Seventh Circuit Court of Appeals decision in the Hudnut case, which declared unconstitutional an antipornography statute MacKinnon and Andrea Dworkin had drafted. I said that that court “assumed that pornography is a significant cause of sexual crime only for the sake of the argument it made,” and that it in fact denied that any such significant causal connection had been “demonstrated.” MacKinnon sets out three paragraphs of Judge Easterbrook’s opinion to show how inaccurate my report is, and adds that her quotation is “unedited.” In fact, however, she omitted a crucial footnote, which he attached to the third sentence of the third paragraph she cites, qualifying particularly his remarks about the effect of pornography on sexual violence. Though she mentions the footnote later in her letter, she gives no sense of what it actually contains. Here is the omitted footnote in full (with emphasis added).
MacKinnon’s article collects empirical work that supports this proposition. The social science studies are very difficult to interpret, however, and they conflict. Because much of the effect of speech comes through a process of socialization, it is difficult to measure incremental benefits and injuries caused by particular speech. Several psychologists have found, for example, that those who see violent, sexually explicit films tend to have more violent thoughts. But how often does this lead to actual violence? National commissions on obscenity here, in the United Kingdom, and in Canada have found that it is not possible to demonstrate a direct link between obscenity and rape or exhibitionism. The several opinions in Miller v. California discuss the US commission. See also Report of the Committee on Obscenity and Film Censorship 61–95 (Home Office, Her Majesty’s Stationery Office, 1979); Special Committee on Pornography and Prostitution, 1 Pornography and Prostitution in Canada 71–73, 95–103 (Canadian Government Publishing Centre 1985). In saying that we accept the finding that pornography as the ordinance defines it leads to unhappy consequences, we mean only that there is evidence to this effect, that this evidence is consistent with much human experience, and that as judges we must accept the legislative resolution of such disputed empirical questions. See Gregg v. Georgia, 428 US 153, 184–87, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (opinion of Stewart, Powell, and Stevens, J.J.).
When a court is asked to declare a statute unconstitutional, it defers to the findings of fact on which the legislature based the statute if the court thinks there is any evidence supporting those findings, even if in its view that evidence is inconclusive. The court is particularly likely to give the legislature the benefit of the doubt about the facts, in that way, when it decides that the statute would be unconstitutional even if the facts were as the legislature supposed. That is what Judge Easterbrook decided in the Hudnut case: he held that even if pornography does cause violence, it could do so only through “mental intermediation,” and the First Amendment, he said, forbids banning material because it might produce dangerous effects that way. His footnote is explicit in stating that he “accepts” the legislature’s findings out of deference, for the sake of the constitutional argument. But he says more: he questions the probative force of the only evidence for the finding that he mentions, and he cites a variety of prestigious reports to the contrary, all claiming that it is impossible to show a causal connection between obscenity and rape. It seems an understatement to conclude that he did not believe that such a connection had been “demonstrated.”
MacKinnon also refers to the later Schiro case in which the Seventh Circuit allowed Indiana to reject a killer’s defense that he had been rendered insane by reading pornography. The Schiro court said that it would be inconsistent for the Seventh Circuit to insist, as it had in the Hudnut decision, that Indiana could not ban pornography even if pornography did lead to violence, on the grounds that such violence would be mediated by intellectual processes, and then to forbid Indiana to convict a killer who said that his intellectual processes had been destroyed by pornography. That argument, like the earlier Hudnut decision it described, “recognizes” that pornography leads to violence only in the hypothetical sense made explicit in the footnote MacKinnon omitted.
She has other complaints: she is angry that I called one of the arguments in her book a new one. I did not mean, however, the very general argument she now mentions: that pornography should be banned because “every harm pornography does is a harm of inequality.” It is indeed a familiar argument that pornography offends sexual equality by contributing to women’s social, economic, and political subordination, and though MacKinnon says she is appalled that I have been unaware of that argument—she offers my failure to hear it as evidence that she herself has been “silenced”—I have in fact discussed it at length in the New York Review (“Liberty and Pornography,” August 15, 1991; “The Coming Battle Over Free Speech,” June 11, 1992) and elsewhere.
The argument I said I had not discussed is a much more specific constitutional thesis: that even if anti-pornography laws do offend the First Amendment’s guarantee of free speech taken on its own, such laws should nevertheless be sustained because they protect rights that the Constitution also guarantees, through the equal protection clause of its Fourteenth Amendment. MacKinnon may mean that she has made that specific argument before; if so, I am sorry that I did not notice and consider it in an earlier article. But since I think, as I said, that the argument is a particularly bad one, I am unclear why she should be so upset that I did not. In any case, the Hudnut court seems to have been unaware of the constitutional argument as well: though Easterbrook referred to and discussed a wide range of both her and Andrea Dworkin’s arguments, he neither mentioned nor addressed that one. I have no memory whatever, finally, of any such argument arising in the public discussion between Andrea Dworkin and myself.
It is more important that MacKinnon thinks I ignored the real point of her book, which, she says, is that pornography is not “speech” because “pornography is what it does, not what it says.” I did not ignore that claim. I did say that I could find no genuine argument in it—I still can’t—but I tried. I reported her suggestion that a pornographic description of a rape is itself a kind of rape, which I said is silly, and her claim that pornography is “reality” rather than speech because it produces erections and aids masturbation, which, as I said, seems an unsatisfactory basis on which to deny First Amendment protection.
She also demands that I defend my view that “being discriminated against on the basis of sex” is just being ‘offended.”‘ But I said nothing even close to that: on the contrary, I said that distributing pornography, as distinct from using it to sexually harass, does not constitute sexual discrimination. She also demands that I defend the view that pornography is about “ideas.” In fact, I took care explicitly to reject that view: I said that much pornography offers no ideas at all, and that it would be wrong to base a First Amendment claim on the view that it does. I added, however, that everyone has an equal right to contribute to what I called the “moral environment”—even people whose tastes reflect no “ideas” but only very offensive “prejudices, life styles, and cultures.”
Her reaction to that claim is the most disturbing part of her letter. She refers to my statement that sexists and bigots have no right that laws and institutions be sexist or bigoted, even partially, in proportion to their numbers. She is astonished (“Search me”) that, in that case, I can think that no one has a right to “stop them.” I added, just after the passage she quotes, that “In a genuinely egalitarian society, however, those views cannot be locked out, in advance, by criminal or civil law: they must instead be discredited by the disgust, outrage, and ridicule of other people.” MacKinnon is not satisfied: she has in mind a quicker, more chilling way of “stopping them” than that.
She ends her letter, characteristically, by picturing me and her other critics as indifferent to the suffering of women. But many feminists, including several who wrote or spoke to me about my review, regret her single-minded concentration on lurid sex. They think that though it has predictably attracted much publicity, it tends to stereotype women as victims, and takes attention from still urgent questions of economic, political, and professional equality. They deplore her alliances with right-wing groups that have produced, for example, a Canadian censorship law that, as many had warned, has been used by conservative moralists to ban gay and lesbian literature by well-known authors, a book on racial injustice by the black feminist scholar Bell Hooks, and, for a time, Andrea Dworkin’s own feminist writing as well. Perhaps MacKinnon should reflect on these suggestions that the censorship issue is not so simple-minded, so transparently gender-against-gender, as she insists. She should stop calling names long enough to ask whether personal sensationalism, hyperbole, and bad arguments are really what the cause of sexual equality now needs.
Narrowing the harms of pornography from all forms of inequality to “sex crime,” and then demanding a showing of an exclusive linear causal relation between them—rather than, say, a powerful contribution, or an interactive relation—are standard ploys of pornography’s apologists. This particular concept of causality is never argued for and is not required in law. ↩
The US Supreme Court is reviewing this case now. ↩