WHY THE ACLU OPPOSES CENSORSHIP OF "PORNOGRAPHY"
Sexually explicit material, in literature, art, film, photography and music, has always been controversial in the United States, from James Joyce's Ulysses -- which was banned in the 1930s -- to rap music performed by 2 Live Crew, a target of prosecution in the 1990s. Traditionally, political conservatives and religious fundamentalists have been the primary advocates of tight legal restrictions on sexual expression, based on their view that such expression undermines public morality. In the late 1970s, however, those traditional voices were joined by a small but extremely vocal segment of the feminist movement. These women, who do not by any means speak for all feminists, charge that "pornography" is a major cause of discrimination and violence against women and should, therefore, be suppressed.
Although unsupported by any reliable evidence, this theory has been especially influential on college and law school campuses, leading to several incidents in which speech and works of art -- including works by women artists -- have been labeled pornographic" and censored. Even classics like Francisco de Goya's painting, The Nude Maja, have been targeted.
The American Civil Liberties Union has fought censorship from the time of its founding in 1920. In our early days, we defended sex educator/activists Margaret Sanger and Mary Ware Dennett against criminal obscenity charges. Today, we continue to defend the free speech rights of all expression, including sexual expression. We believe that the suppression of "pornography" is not only damaging to the First Amendment, but also impedes the struggle for women's rights.
Here are some answers to questions often asked by the public about the ACLU's opposition to the suppression of pornography.
IS PORNOGRAPHY PROTECTED BY THE FIRST AMENDMENT?
œ Yes. The First Amendment absolutely forbids the suppression of ideas or images based on their content alone. Moreover, a basic tenet of U.S. Supreme Court jurisprudence is that laws must be "viewpoint" neutral. And even though the Court has carved out a narrow exception to the First Amendment for a category of sexually explicit material deemed "legally obscene," the term "pornography" has no legal significance at all.
The dictionary defines pornography simply as writing or visual images that are "intended to arouse sexual desire." Pro-censorship feminists have greatly expanded the common meaning of pornography, redefining it as "the sexually explicit subordination of women through pictures and/or words." They then define "subordination" as the depiction of women "in postures or positions of sexual submission, servility, or display." These extraordinarily subjective interpretations would apply to everything from religious imagery to news accounts of mass rape in Bosnia. Because the Supreme Court has consistently ruled that the government may not make content-based rules limiting free speech, material that depicts "the subordination of women" enjoys the same First Amendment protection afforded material that depicts women in other ways. Were that not so, the government could suppress any ideas it didn't like, rendering the First Amendment meaningless.
IS PORNOGRAPHY A FORM OF DISCRIMINATION AGAINST WOMEN?
Sexually explicit words and images aimed at arousing sexual desire -- pornography -- constitute a form of expression. Pro-censorship feminists seek legal recognition of their counter-claim that such images are a form of sex discrimination because they reinforce stereotypes of women as inferior. The architects of the latter concept are law professor Catharine MacKinnon and writer Andrea Dworkin, who drafted a model law
that would permit any woman claiming to have been harmed by pornography to bring a civil lawsuit for monetary damages, and to halt the production, distribution and sale of pornographic works.
The model law has been considered in numerous locales around the country, but when it was adopted by the Indianapolis City Council in 1984 it collapsed under a legal challenge brought by a coalition of booksellers and publishers and supported by the ACLU as a friend-of-the-court. Leaving no doubt that the law targeted expression, federal Judge Sara Barker wrote: "To deny free speech in order to engineer social change in the name of accomplishing a greater good for one sector of our society
erodes the freedoms of all and... threatens tyranny and injustice for those subjected to the rule of such laws."
The ACLU's fears about the censorious effects of the MacKinnon/Dworkin law have been borne out in Canada, where the Canadian Supreme Court incorporated that law's definition of pornography into a 1992 obscenity ruling. Since then, more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some
materials suspended by the government. The most susceptible to repression have been stores that specialize in lesbian and gay writings.
WOULDN'T RIDDING SOCIETY OF PORNOGRAPHY REDUCE SEXISM AND VIOLENCE AGAINST
WOMEN?
Although pro-censorship feminists base their efforts on the assumption that pornography causes violence against women, such a causal relationship has never been established. The National Research Council's Panel on Understanding and Preventing Violence concluded, in a 1993 survey of laboratory studies, that "demonstrated empirical links between pornography and sex crimes in general are weak or absent."
Correlational studies are similarly inconclusive, revealing no consistent correlations between the availability of pornography in various communities or countries and sexual offense rates. If anything, studies suggest that a greater availability of pornography seems to correlate with higher indices of sexual equality. Women in Sweden, with its highly permissive attitudes toward sexual expression, are much safer and have more civil rights than women in Singapore, where restrictions on
pornography are very tight.
DOESN'T PORNOGRAPHY EXPLOIT THE WOMEN WHO PARTICIPATE IN ITS PRODUCTION?
The ACLU supports the aggressive enforcement of already existing civil and criminal laws to protect women from sexual violence and coercion in the process of making sexually oriented material. At the same time, we oppose the notion, advanced by anti-pornography feminists, that women can never make free, voluntary choices to participate in the production of pornography, and that they are always coerced, whether they realize it or not. This infantilization of women denies them the freedom of choice to engage in otherwise legal activities.
There are cases of women who say they were coerced into working in the pornography industry, the most well known being "Linda Lovelace," who starred in the movie "Deep Throat." But the majority of women who pose for sexually explicit material or act in pornographic films do so voluntarily. Indeed, these women resent attempts to outlaw their chosen occupation. As one actress exclaimed, "For them to tell me I can't make films about naked men and women making love is a grotesque violation of my civil rights."
WHY DOES THE ACLU SAY THAT ANTI-PORNOGRAPHY LAWS HARM WOMEN'S STRUGGLE FOR
FULL LEGAL EQUALITY?
A core idea of the anti-pornography movement is the proposition that sex per se degrades women (although not men). Even consensual, nonviolent sex, according to MacKinnon and Dworkin, is an evil from which women -- like children -- must be protected. Such thinking is a throwback to the archaic stereotypes of the 19th century that formed the basis for enacting laws to "protect" women from vulgar language (and from practicing law or sitting on juries lest they be subjected to such language). Paternalistic legislation such as that advocated by MacKinnon and Dworkin has always functioned to prevent women from achieving full legal equality.
Furthermore, history teaches that censorship is a dangerous weapon in the hands of government. Inevitably, it is used against those who want to change society, be they feminists, civil rights demonstrators or gay liberationists. Obscenity laws, especially, have been used to suppress information and art dealing with female sexuality and reproduction. Thus, the growing influence of anti-pornography feminism threatens to undermine long- established principles of free speech.
Finally, the focus on sexual imagery and symbols diverts attention from the real causes of discrimination and violence against women, as well as from problems such as unequal pay, lack of affordable childcare and sexual harassment in the workplace.
ACLU Department of Public Education December 11, 1994
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