Drawing lines

Best known as an eloquent campaigner against pornography, Catharine MacKinnon is a lawyer – a Professor of Law at the University of Michigan Law School. Not all of this book (based on talks given at Princeton) sounds much like legal argument, and particularly when she is talking about pornography she gives a rhetorical display which may well have been breathtaking in the lecture hall. But the book does in fact offer a legal argument, one which is interesting, and also deeply American, in the sense that MacKinnon discusses the problems raised by pornography and also by speech that constitutes sexual or racial harassment in terms of American law and the American Constitution. MacKinnon herself does not accept those terms as presently defined, and her book is an eloquent plea to Americans to move beyond what she sees as the prejudiced limitations of current doctrine, in particular of current liberal doctrine. As a plea to Americans, it takes for granted several aspects of American discussions. Some of this a British reader may find rather bewildering.

The First Amendment to the US Constitution protects ‘freedom of speech’; this has been interpreted in a robust way that makes it quite difficult to ban anything. There are some provisions to restrict pornography, in particular to make child pornography illegal, but hard work has gone into generating the rather shaky formulae that support the restrictions. Some of those who do not want pornography to be Constitutionally protected have tried to argue that it does not count for the purposes of the Constitution as ‘speech’. This is not because it now more often consists of pictures than words – a great deal of Constitutionally recognised ‘speech’ is not verbal. The claim is, roughly, that pornography is not ‘speech’ because it does not convey ideas: it is designed to produce erections rather than opinions. But this line has not found much favour, particularly with liberals. While most pornography conveys no ideas, some expressions that convey ideas may be thought pornographic (a mild case is a jacket of the Vietnam War era, often mentioned in the literature, which said ‘Fuck the Draft.’) More generally, it is hard to draw a line between different types of expression, with respect to their form, or their intentions, or their effects, and proclaim that some and not others count as the ‘speech’ which the First Amendment protects.

This is a point, then, at which liberals do not want to draw a line, and in order to understand some of what MacKinnon says, in particular some of her more vituperative asides, one has to see that she is attacking them on this score. MacKinnon does want to draw a line here. Since she wants the law to suppress pornography (or at least to provide remedies to those who have complaints against pornography), but does not want to suppress political argument on sexual subjects, she needs a distinction between more and less argumentative forms of expression.

While liberals are not keen to draw a line by distinguishing a kind of expression that is (so to speak) less than speech, they do need to distinguish what is ‘merely’ speech from what is more than speech – that is to say, from action. The First Amendment protects speech, argument, the exchange of ideas, and that includes obnoxious ideas, for instance of a racist character; but it does not protect hostile actions designed to intimidate people of another race. The extremely obvious problem is that some speech acts just are intimidating acts of that sort; or, to put it the other way round, some acts of an intimidating kind take the form of ‘mere’ speech, produced in some specific circumstances to a specific audience. In the case of political speech or anything that might conceivably be construed as political speech, the prevailing interpretations of the First Amendment go to remarkable lengths to protect the speaker, rather than the people whom the speech is intended to insult. In 1978, the American Nazi Party proposed to hold a march in Stokie, Illinois, a site chosen because many Jewish Holocaust survivors lived there. This demonstration was legally held to be protected speech, a decision upheld by the Supreme Court (Justice Blackmun dissenting).

This line of interpretation seems particularly perverse in light of the fact that in other connections, especially in relation to conditions of employment, American law is keen on the idea that speech or other forms of expression can constitute action. Under the Fourteenth Amendment, which guarantees ‘equal protection’ to all citizens, legal action can be taken against sexual and racial discrimination, which may include verbal and related kinds of harassment. Attempts have been made, with some success, to extend such provisions from the workplace to university campuses, in the form of ‘speech-codes’. This has given rise to some argument, because of supposed difficulties in distinguishing between loutish insults, on the one hand, and, on the other, academic arguments or other material which a woman or a member of a minority might find contributed to a ‘threatening environment’. In the workplace, however, various forms of speech and other kinds of expression, such as pornographic photographs, have been held to contribute to discrimination and inequality.

Taken together, all this leads to the result that American law can restrain locker-room crudities or dirty photographs in the factory, but neo-Nazi thugs shouting threats and racial insults at elderly Jews in a Chicago suburb are protected by the police. To some, particularly Europeans, this seems quite extraordinary. Catharine MacKinnon writes: ‘It is my observation that anyone who attended primary school anywhere but in the United States tends to regard this approach, and the passion with which it is defended, as an American cultural peculiarity or fetish to be tolerated.’ she is right. Perceptions differ in the other direction as well. A few months ago I expressed a few reservations on these lines to some liberal friends in New York, and later heard that after I had left it was found amazing that this reasonable Englishman should be, on questions of free speech, the next thing to a fascist.

However, it is not simply a question of cultural peculiarities. All democracies have problems about the relations of free speech to other political values, but the United States has problems which are severe and not always adequately acknowledged. I do not think that MacKinnon exaggerates when she says that ‘the law of equality and the law of freedom of speech are on a collision course in this country.’ MacKinnon herself tends to be on the side of control, of affirming equality by punishing speech, but you do not have to go all the way with her on that to acknowledge the problem.

The present liberal position requires one to hold three views at once. The first: there is no safe or clear line between speech and other forms of expression less than speech. The second: there is a clear and enforceable line between speech and action that is more than speech. The third: there is an effective line between insults directed to particular people in work-places and insults directed to classes of people in public space. The third view means, in effect, that there is a kind of speech that is, in a very broad sense indeed, political or public, and this is protected by the First Amendment, as opposed to speech which is (let us say) ‘non-political’, which is not protected. In particular, ‘political’ speech cannot be constrained by any provision that favours one side of an argument over the other, so racist speech must be tolerated. Racial discrimination in action, however, is forbidden, so at this point one has to rely – when in a ‘political’ context – on the distinction between speech and action (the second of the three views). In a ‘non-political’ context, however, it is accepted that speech can be action, and it can be legally restrained. But where can we find a distinction between the ‘political’ and the ‘non-political’ strong enough to support these two different ways of treating speech?

The first of the three liberal views is based on the idea that all sorts of behaviour of an expressive kind can contribute one way or another to the moral and political environment: if we are to protect the ‘political’, this view says, we must protect much more than public political argument. But then, why are offensive acts or displays in the work-place not protected, since they also presumably contribute fairly generously to the moral environment? Conversely, if it is right to defend racial equality by controlling speech in the work-place, why is it not right to control the speech of racist groups in public places chosen in order that the speech shall harass – which one might think was a more spectacular form of harassment?

These problems are under discussion in America, and liberals are anxious to find legal formulations that will distinguish what I have called the ‘political’ and the ‘non-political’. But there is a real conflict between ideals here, and its resolution is likely to require a rethink, not simply cleverer distinctions. The United States claims to be dedicated to affirming racial equality; the Fourteenth Amendment is mobilised to express this; its writ allows the possibility of much intrusive legal activity. When it comes to matters that involve the First Amendment, there is an enormous strain in combining this with what MacKinnon calls ‘the studied inability to tell the difference between oppressor and oppressed that passes for principled neutrality in this area’. The strain is yet more severe when one must say that speech which is action in a ‘non-political’ area is not action in a ‘political’ area; and when, moreover, what counts as speech in the ‘political’ area is construed so broadly that it is unclear why there is a ‘non-political’ area.

MacKinnon has strong arguments, it seems to me, to show that in these ways American liberal opinion is in a tight corner. However, there is more than one reason why the reader might not immediately see what these arguments are. One is that, as I said earlier, she takes for granted or mentions only obliquely what she is attacking, and British readers, in particular, may not only fail to recognise the target, but may wonder why the detailed hagiography of the First Amendment matters to them. (There is an answer to that: we deeply need something like the First Amendment, as we need affirmations of other basic rights, and should be warned of problems that can come with them.)

There is another reason, however, why any reader might find it hard to follow her argument. The reason is that it is associated with a polemic about pornography that often conceals the argument and for some people is likely to discredit it altogether. On the strength of its first chapter and its closing pages, you might say that the book is actually about pornography, and that the arguments about the First Amendment are mobilised only as a weapon in that cause, but I do not read it in that way. It seems to me a book about the law and politics of equality and free speech, overlaid by an oration about pornography which is rhetorically spectacular and in that line sometimes quite enjoyable, but which systematically runs together most of the distinctions that are needed if one is going to make sense of the problems of controlling pornography. Indeed, they are distinctions that are needed if MacKinnon is to make sense of her central argument.

Two assumptions are made throughout the oration, both of them untrue. The first is that all pornography is both heterosexual and sadistic. Pornography is solely a matter of the abuse of women by men, and gay pornography, or pornography which is erotic rather than aggressive in effect, simply disappear from the discussion altogether. The second false assumption is that it is straightforwardly known, scientifically established, proved beyond doubt etc, that pornography ‘causes’, ‘is responsible for’, ‘is the agent of’ rape, sexual abuse, sexual murder and so forth. Beyond wearily noting that this is no better known now than it ever has been, and that MacKinnon offers no evidence for it, I shall leave aside this kind of claim – which is anyway not as distinctive a part of MacKinnon’s case as two other assertions she continually (and it is clear, intentionally) runs together with it. One is that crimes are sometimes committed in the course of making pornography. This is certainly true, and any sensible scheme of regulation will seek to ban pornography which can be supposed to involve such crimes. (The Committee on Obscenity and Film Censorship which I chaired in the late Seventies recommended this as the one ground for banning pornographic materials, as opposed to restricting them to adults who choose to view them.) American law bans child pornography under this principle. MacKinnon approves of this ban, but finds American practice inconsistent in not extending it to other cases. However, she does not tell us how far she would extend it. If there are ‘snuff’ movies, or movies that make us suspect that real torture or coercion was involved in making them, many would agree that there is reason not just to pursue those crimes, but to suppress the movie. How much further does MacKinnon want to go? Sometimes she seems to think that no woman would appear in a porno movie unless she was coerced by a man, so the mere existence of a porno movie shows that a crime was committed in making it.

The other distinctive idea that MacKinnon appeals to here is that there is no relevant distinction between doing it in a movie and doing it. This is not the idea that pornography causes rapes, nor the idea that some pornography may be made by bringing about a rape. This is the idea that a pornographic representation of a rape just is rape. It is the most extreme version of the idea that speech is action.

It is true that photographic pornography is, as it might be grandly put, ‘auto-iconic’: so far as basic sexual activity is concerned, at least in the hardcore case, the participants are doing what they are represented as doing. But this, platitudinously, does not extend to everything that they are represented as doing; for instance, to leave aside simulated violence for the moment, they may be represented as having just cheerfully got together on a bicycling holiday, when they have in fact wearily started on the fourth day of filming sex in an LA cellar. Similarly, the reactions of people watching the movie are not necessarily the same as if they were watching everything represented in the movie. It is because these truths are so obvious, presumably, that MacKinnon devotes her advocacy so single-mindedly to obscuring them. ‘In terms of what the men are doing sexually,’ she writes, ‘an audience watching a gang rape in a movie is no different from an audience watching a gang rape that is re-enacting a gang rape from a movie, or an audience watching any gang rape.’ That weasel qualification, ‘in terms of what the men are doing sexually’, has to do a lot of work to stop that from being, to put it plainly, a lie.

MacKinnon deliberately enacts an indifference to almost every distinction that might be thought relevant to this subject: between what actually happens and what is represented as happening; between reality and fantasy; between crimes possibly caused by the film and crimes actually committed on the set; between pornography that shows women being humiliated and dismembered and pornography that represents them as active and enterprising sexual participants. This indifference does not come, I am certain, from intellectual confusion, but from a deliberate policy. It is part of a strategy to obliterate the liberals’ usual hiding places, to deny them their lines of intellectual communication. In the open spaces that will be left when the usual distinctions have been blown away, the liberals will be seen for what they are, the guerrilla forces of male power.

Like other strategies of the same kind, this has considerable political and human costs. One victim of MacKinnon’s tactic is her responsibility to the law. It is quite unclear what her proposals about pornography would in fact catch. She and Andrea Dworkin designed a Model Ordinance making pornography actionable as a civil rights violation; it was declared unconstitutional in the United States, though a version of it has had more success, with rather dubious results, in Canada. It is drawn in terms that leave it very unclear what it might be taken to cover. Again – besides the distinction between what is and what is not political argument, which I have already mentioned – MacKinnon also needs the law to distinguish between mere pornography and works of art or radical expression which (just once and very briefly) she admits should be defended. But there is no reason to think that this can be done, and in the Report of the Committee on Obscenity and Film Censorship we argued, I still think correctly, that the whole idea of legal protection for creative works, entrenched in English law in the form of the ‘Public Good Defence’ under the Obscene Publications Act, is misguided in principle.

What is clear is that MacKinnon, at least at this stage of her campaign, does not mind about any of this. There is a rather alarming note of angry, moralistic, populist impatience with these legal quibbles. This is not suitable to someone who is presumably committed to the integrity of the law. It is also not necessarily very clever politics. It is a tone more familiar, in these subjects, from the Right, and MacKinnon should reflect – as feminists have often been asked to reflect – who are her real allies; who would use the vague and moralistic laws she wishes to introduce, and to do what? She will be lucky if they are the friends of women’s freedom.

MacKinnon claims, imperiously and without any questions, to speak for women. But many women may not want to be spoken for in such tones. It is not only that they may take a more positive view of some pornography than MacKinnon allows (as Linda Williams, for one, does in her book Hardcore). They may wonder whether pornography can be quite the all-consuming, omnipresent and supremely important threat to their freedom and autonomy that MacKinnon makes out. She quotes her friend Andrea Dworkin as saying ‘pornography is the law for women.’ This seems to me an insult to women, who have more to fear from the law, and more to hope from it, than this would allow.

Slogans of this kind also obscure the force of MacKinnon’s more general arguments. She has laid bare significant weak spots in the modern liberal doctrine of free speech, particularly in the United States; but many people, including many women, will fail to take her seriously on this if they have no alternative to crouching together with American liberals under the indiscriminate onslaught which she aims at all consecutive thought about pornography.