Not A Moral Issue MACKINNON PDF
Not A Moral Issue MACKINNON PDF
Pornosec, the subsection of the Fiction Department which turnedout cheap pornography
for dittribution among the proles . . . nicknamed Muck House by the people who
worked in it . . .produce[di booklets in sealed packets with titles like Spanking
Stories or One Night in a Girls' School, to be bought furtively by proletarian
youths who were under the impression that they were buying something illegal. ***
A critique of pornography' is to feminism what its defense is to male
supremacy. Central to the institutionalization of male dominance, por-
• Prior versions of this commentary were given as speeches to the Morality Colloquium,
University of Minnesota, February 17, 1983; Women and the Law Conference, panel on
pornography, April 4, 1983; and Conference on Media Violence and Pornography, Ontario
Institute for Studies in Education, February 3-5, 1984. The title of this article is a play on the
title of the anti-pornography film by the Canadian Film Board, Not a Love Slog (1983).
** Associate Professor, University of Minnesota Law School; author of Sexual Harassment
of Working Women. Professor MacKinnon, with Andrea Dworkin, conceived and wrote the
civil rights anti-pornography ordinances passed by the Minneapolis and Indianapolis city
councils.
*** G. ORWELL, 1984, at 108-09 (1949).
1. This text as a whole is intended to communicate what I mean by pornography. The
key work on the subject is A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1981).
No definition can convey the meaning of a word as well as its use in context can. However
what Andrea Dworkin and I mean by pornography is rather well captured in our legal defini-
tion of the term. "Pornography is the graphic sexually explicit subordination of women,
whether in pictures or in words, that also includes one or more of the following: (i) women are
presented dehumanized as sexual objects, things or commodities; or (ii) women are presented
as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects
who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects
tied up or cut up or mutilated or bruised or physically hurt; or (v) women are presented in
postures of sexual submission, servility or display; or (vi) women's body parts-including but
not limited to vaginas, breasts, and buttocks-are exhibited, such that women are reduced to
those parts; or (vii) women are presented as whores by nature; or (viii) women are presented
being penetrated by objects or animals; or (ix) women are presented in scenarios of degrada-
tion, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that
makes these conditions sexual." The ordinance also defines "the use of men, children or tran-
sexuals in the place of women" as pornography. Pornography, thus defined, is discrimination
on the basis of sex and, as such, a civil rights violation. This definition is a slightly modified
version of the one passed by the Minneapolis City Council on December 30, 1983. Minneap-
olis, Minn., Ordinance amending tit. 7, chs. 139 & 141, Minneapolis Code of Ordinances
Relating to Civil Rights. The ordinance was vetoed by the Mayor, reintroduced, passed
again, and vetoed again in 1984.
Many of the ideas in this essay were developed and refined in close collaboration with
Andrea Dworkin. It is consequently difficult at times to distinguish the contribution of each
of us to a body of work that-through shared teaching, writing, speaking, organizing, and
political action on every level-has been created together. I have tried to credit specific con-
Yale Law & Policy Review Vol. 2:321, 1984
tributions that I am aware are distinctly hers. This text is mine; she does not necessarily agree
with everything in it.
2. "Congress shall make no law ... abridging the freedom of speech, or of the
press. . . ." U.S. CONST. amend. I.
3. Justice Black, at times joined by Justice Douglas, took the position that the Bill of
Rights, including the First Amendment, was "absolute." Justice Black, The Bill of Rights, 35
N.Y.U. L. REV. 865, 867 (1960); Cahn,JusticeBlack and First Amendment "Absolutes'" A Publi
Interview, 37 N.Y.U. L. REv. 549 (1962). For a discussion, see Kalven, Upon Rereading Mr.
Justice Black on the First Amendment, 14 UCLA L. REV. 428 (1967). For one exchange in the
controversy surrounding the "absolute" approach to the First Amendment, as opposed to the
"balancing" approach, see, e.g., Mendelson, On the Meaning of the First Amendment. Absolutes in
the Balance, 50 CALIF. L. REV. 821 (1962); Frantz, The First Amendment in the Balance, 71 YALE
L.J. 1424 (1962); Frantz, Is the First Amendment Law.'-A Reply to Professor Mendelson, 51 CALIF.
L. REV. 729 (1963); Mendelson, The First Amendment and the Judtial Process. A Reply to Mr.
Frantz, 17 VAND. L. REV. 479 (1964). In the pornography context, see, e.g., Roth v. United
States, 354 U.S. 476, 514 (1957) (Douglas, J.,joined by Black, J., dissenting); Smith v. Califor-
nia, 361 U.S. 147, 155 (1959) (Black, J., concurring); Miller v. California, 413 U.S. 15, 37
(1973) (Douglas, J., dissenting). It is not the purpose of the current article to present a cri-
tique of absolutism as such, but rather to identify and criticize some widely and deeply shared
implicit beliefs that underlie both the absolutist view and the more mainstream flexible
approaches.
4. The history of obscenity law can be read as a failed attempt to make this separation,
with the failure becoming ever more apparent from the Redrup decision forward. Redrup v.
New York, 386 U.S. 767 (1967). For a summary of cases exemplifying such a trend, see the
dissent by Justice Brennan, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973).
5. Much has been made of the distinction between sex and gender. Sex is thought the
more biological, gender the more social. The relation of sexuality to each varies. See, e.g., R.
STOLLER, SEX AND GENDER 9-10 (1974). Since I think that the importance of biology to the
condition of women is the social meaning attributed to it, biology is its social meaning for
purposes of analyzing the inequality of the sexes, a political condition. I therefore tend to use
sex and gender relatively interchangeably.
322
Not a Moral Issue
6. The sense in which I mean women's perspective to differ from men's is like that of
Virginia Woolf's reference to "the difference of view, the difference of standard" in her V.
WOOLF, George Elliot, in I COLLECTED ESSAYS 204 (1966). Neither of us uses the notion of a
gender difference to refer to something biological or natural or transcendental or existential.
Perspective parallels standards because the social experience of gender is distinctive. See C.
MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN 107-141 (1979), and articles ref-
erenced at note 11, infra; V. WOOLF, THREE GUINEAS (1938); see also A. DWORKIN, The Root
Cause, in OUR BLOOD: ESSAYS AND DISCOURSES ON SEXUAL POLITICS 96 (1976). I do not
refer to the gender difference here descriptively, leaving its roots and implications unspecified,
so they could be biological, existential, transcendental, in any sense inherent, or social but
necessary. I mean "point of view" as a view, hence a standard, that is imposed on women by
force of sex inequality, which is a political condition. "Male" is an adjective here, a social
and political concept, not a biological attribute; it is a status socially conferred upon a person
because of a condition of birth. As I use it, it has nothing whatever to do with inherency,
preexistence, nature, inevitability, or body as such. Because it is in the interest of men to be
male in the system we live under (male being powerful as well as human), they seldom ques-
tion its rewards or even see it as a status at all.
7. Criminal Code, CAN. REV. STAT. ch. c-34, § 159(2)(c) and (d) (1970). People v.
Sanger, 222 N.Y. 192, 118 N.E. 637 (1918).
8. THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY (1970) (major-
ity report). The accuracy of the Commission's findings is called into question by:
(a) widespread criticism of the Commission's methodology from a variety of perspectives,
e.g., SUTHERLAND, OBSCENITY-THE COURT, THE CONGRESS AND THE PRESIDENT'S COM-
MISSION (1975); Donnerstein, Pornography Commission Revit'ed: Aggresso-Erotica and Violence
Agazist Women, 39 J. OF PERSONALITY & SOC. PSYCHOLOGY 269 (1980); Garry, Pornography
andRespectfor Women, Soc. THEORY & PRACTICE 4 (Summer 1978); Diamond, Pornographyand
Repression, 5 SIGNS: J. OF WOMEN IN CULTURE & SOC. 686 (1980); Cline, Another View. Pornog-
raphy Affects the State of the Art, in WHERE Do YOU DRAW THE LINE? (V.B. Cline ed. 1974);
Bart & Jozsa, Dirty Books, Dirty Films, and Dirty Data, in TAKE BACK THE NIGHT: WOMEN ON
PORNOGRAPHY 204 (L. Lederer ed. 1982);
(b) the Commission's tendency to minimize the significance of its own findings, e.g., those
by Mosher on the differential effects of exposure by gender;
(c) the design of the Commission's research. The Commission did not focus questions
about gender, did its best to eliminate "violence" from its materials (so as not to overlap with
323
Yale Law & Policy Review Vol. 2:321, 1984
the Violence Commission), and propounded unscientific theories such as Puritan guilt to ex-
plain women's negative responses to the materials.
It should further be noted that it is unclear that scientific causality is what legally validates
even an obscenity regulation:
But, it is argued, there is no scientific data which conclusively demonstrate that expo-
sure to obscene materials adversely affects men and women or their society. It is [urged]
that, absent such a demonstration, any kind of state regulation is "impermissible." We
reject this argument. It is not for us to resolve empirical uncertainties underlying state
legislation, save in the exceptional case where that legislation plainly impinges upon
rights protected by the Constitution itself. . . Although there is no conclusive proof of a
connection between antisocial behavior and obscene material, the legislature of Georgia
could quite reasonably determine that such a connection does or might exist.
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60-61 (1973) (Burger, J., for the majority); see
also Roth v. U.S., 354 U.S. 476, 501 (1956).
9. Some of the harm of pornography to women, as defined supra at note I and as discussed
in this article, has been documented in empirical studies. The findings of recent studies are
that exposure to pornography increases normal men's willingness to aggress against women
under laboratory conditions; makes both women and men substantially less able to perceive
accounts of rape as accounts of rape; makes normal men more closely resemble convicted
rapists psychologically; increases attitudinal measures that are known to correlate with rape,
such as hostility toward women, propensity to rape, condoning rape, and predicting that one
would rape or force sex on a woman if one knew one would not get caught; and produces
other attitude changes in men such as increasing the extent of their trivialization, dehumani-
zation, and objectification of women. Russell, Pornography and Violence. What Does the New
Research Say?, in TAKE BACK THE NIGHT, supra note 8, at 216; N. MALAMUTH & E. DONNER-
STEIN, PORNOGRAPHY AND SEXUAL AGGRESSION (1984); Z. VILLMAN, THE CONNECTION
BETWEEN SEX AND AGGRESSION (1984): J.V.P. Check, N. Malamuth & R. Stille, Hostility to
Women Scale (1983) (unpublished manuscript); Donnerstein, Pornography: Its Effects on Volence
Against Women, in N. MALAMUTH & E. DONNERSTEIN, supra; Malamuth and Check, The Ef-
fects of Mass Media Exposure on Acceptance of Violence Against Women: A FieldExperiment, 15 J. OF
RESEARCH IN PERSONALITY 436 (1981); Malamuth, Rape Proclivities Among Males, 37 J. OF
SOCIAL ISSUES 138 (1981); Malamuth and Spinner, A Longitudinal Content Analysis of Sexual
Violence in the Best-Selling Erotica Magazines, 16 J. OF SEX RESEARCH 226 (1980); Mosher, Sex
Callousness Towards Women, in 8 TECHNICAL REPORT OF THE COMMISSION ON OBSCENITY
AND PORNOGRAPHY 313 (1971); Zillman & Bryant, Eects of Masstve Exposure to Pornography, in
N. MALAMUTH & E. DONNERSTEIN, supra.
10. The following are illustrative, not exhaustive, of the body of work I term the "feminist
critique of pornography." A. DWORKIN, supra note I; Leidholdt, Where Pornography Meets
Fascism, WIN 18 (March 15, 1983); Steiner, Night Words, in THE CASE AGAINST PORNOGRA-
PHY 227 (D. Holbrook ed. 1973); S. BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND
RAPE 394 (1975); R. Morgan, PornographyandRape."Theory andPractice,in GOING Too FAR 165
(R. Morgan ed. 1977); K. BARRY, FEMALE SEXUAL SLAVERY (1979); AGAINST SADO-MAS-
OCHISM: A RADICAL FEMINIST ANALYSIS (R.R. Linden, D.R. Pagano, D.E.H. Russell & S.L.
Star eds. 1982), especially articles by Ti-Grace Atkinson, Judy Butler, Andrea Dworkin, Alice
Walker, John Stoltenberg, Audre Lorde, and Susan Leigh Star; Walker, Coming Apart, in
TAKE BACK THE NIGHT: WOMEN ON PORNOGRAPHY, supra note 8, and other articles in that
Not a Moral Issue
volume with the exception of the legal ones; G. VIDAL, Women's Liberation Meets the Miller-
Maier-Manson Man, HOMAGE TO DANIEL SHAYS: COLLECTED ESSAYS 1952-1972, 389 (1969);
L. LOVELACE, ORDEAL (1980); K. MILLETr, SEXUAL POLITICS (1969); F. RUSH, THE BEST
KEPT SECRET: SEXUAL ABUSE OF CHILDREN (1980). Violent Pornography.-Degradationof Women
versus Right of Free Speech, 8 N.Y.U. REV. L. SoC. CHANGE 181 (1978-79) contains both femi-
nist and non-feminist arguments.
11. For more extensive discussions of this subject, see my prior work, especially Feminism,
Marxismr, Method and the State.- An Agenda for Theoty, 7 SIGNS: J. OF WOMEN IN CULTURE & SOC.
515 (1982) [hereinafter cited as SIGNS I]; Feminism, Marxism, Method and the State.. Toward Femi-
nistJursprudence,8 SIGNS: J. OF WOMEN IN CULTURE & Soc. 635 (1983) [hereinafter cited as
SIGNS II].
12. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
13. Justice Stewart has been said to have complained that this single line was more
quoted and remembered than anything else he ever said.
Yale Law & Policy Review Vol. 2:321, 1984
326
Not a Moral Issue
16
reality. Dworkin's Pornography."Men Possessing Women presents a sexual
theory of gender inequality of which pornography is a core constitutive
practice. The way pornography produces its meaning constructs and
17
defines men and women as such. Gender is what gender means. It has
no basis in anything other than the social reality its hegemony con-
structs. The process that gives sexuality its male supremacist meaning is
therefore the process through which gender inequality becomes socially
real.
In this analysis, the liberal defense of pornography as human sexual
liberation, as de-repression-whether by feminists, lawyers, or neo-
Freudians' 8 -is a defense not only of force and sexual terrorism, but of
the subordination of women. Sexual liberation in the liberal sense frees
male sexual aggression in the feminist sense. What in the liberal view
looks like love and romance looks a lot like hatred and torture to the
feminist. Pleasure and eroticism become violation. Desire appears as
lust for dominance and submission. The vulnerability of women's pro-
jected sexual availability-that acting we are allowed: asking to be ac-
ted upon-is victimization. Play conforms to scripted roles, fantasy
expresses ideology-is not exempt from it-and admiration of natural
physical beauty becomes objectification.
The experience of the (overwhelmingly) male audiences who consume
20
pornography 19 is therefore not fantasy or simulation or catharsis but
327
Yale Law & Policy Review Vol. 2:321, 1984
sexual reality: the level of reality on which sex itself largely operates. To
understand this does not require noticing that pornography models are
real women to whom something real is being done, 2 1 nor does it even
require inquiring into the systematic infliction of pornographic sexuality
upon women, 22 although it helps. The aesthetic of pornography itself,
the way it provides what those who consume it want, is itself the evi-
dence. When uncensored explicit-i.e. the most pornographic-pornog-
raphy tells all, all means what a distanced detached observer would
report about who did what to whom. This is the turn-on. Why does
observing sex objectively presented cause the male viewer to experience
his own sexuality? Because his eroticism is, socially, a watched thing.
If objectivity is the epistemological stance of which objectification is
the social process, 23 the way a perceptual posture is embodied as a social
form of power, the most sexually potent depictions and descriptions
would be the most objective blow-by-blow re-presentations. Pornogra-
phy participates in its audience's eroticism because it creates an accessi-
ble sexual object, the possession and consumption of which is male
sexuality, to be consumed and possessed as which is female sexuality. In
this sense, sex in life is no less mediated than it is in art. Men have sex
with their image of a woman. Escalating explicitness, "exceeding the
bounds of candor," 24 is the aesthetic of pornography not because the
does not harm women. See Lagelan, The PolticalEconomy ofPornography,AEGIS: MAGAZINE ON
ENDING VIOLENCE AGAINST WOMEN, Autumn 1981, at 5; Cook, The A-Rated Economy,
FORBES, Sept. 18, 1978, at 60. Personal observation reveals that women tend to avoid por-
nography as much as possible-which is not very much, as it turns out.
20. The "fantasy" and "catharsis" hypotheses, together, assert that pornography cathects
sexuality on the level of fantasy fulfillment. The work of Donnerstein, particularly, shows
that the opposite is true. The more pornography is viewed, the more pornography-and the
more brutal pornography-is both wanted and required for sexual arousal. What occurs is
not catharsis, but desensitization, requiring progressively more potent stimulation. See works
cited supra at note 9; Straus, Leveling, Ciility, and Violence inthe Family, 36 J. OF MARRIAGE &
FAMILY 13 (1974).
21. L. LOVELACE, supra note 10, provides an account by one coerced pornography model.
See also Dworkin, Pornography's "Exquiite Volunteers," Ms., March 1981, at 65.
22. However, for one such inquiry, see Russell, supra note 9, at 228 (random sample of 900
San Francisco households found that 10 percent of women had at least once "been upset by
anyone trying to get you to do what they'd seen in pornographic pictures, movies or books.")
Obviously, this figure could only include those who knew that the pornography was the
source of the sex, which makes its findings conservative. See also D. RUSSELL, RAPE IN MAR-
RIAGE 27-41 (1983) (discussing the data base). The hearings Andrea Dworkin and I held for
the Minneapolis City Council on the ordinance, cited in note 1, produced many accounts of
the use of pornography to force sex on women and children. Pubhlic Hearings on Ordinances to
Add Pornography as DiscriminationAgainst Women, Committee on Government Operations, City
Council, Minneapolis, Minn., Dec. 12-13, 1983. (Hereinafter Hearings).
23. See SIGNS I, supra note 11. See also Sontag, The PornographicImagination, 34 PARTISAN
REVIEW 181 (1977).
24. "Explicitness" of accounts is a central issue in both obscenity adjudications and audi-
ence access standards adopted voluntarily by self-regulated industries or by boards of censor.
See, e.g., Grove Press v. Christenberry, 175 F. Supp. 488, 489 (S.D.N.Y. 1959) (discussion of
Not a Moral Issue
materials depict objectified sex but because they create the experience of
a sexuality which is itself objectified. It is not that life and art imitate
each other; in sexuality, they are each other.
II
"candor" and "realism"); Grove Press v. Christenberry, 276 F. 2d 433, 438 (2d Cir. 1960)
("directness"); Mitchum v. State, 251 So. 2d 298, 302 (Fla. Dist. Ct. App. 1971) ("show it
all"); Kaplan v. California, 413 U.S. 115, 118 (1973). How much sex the depiction shows is
implicitly thereby correlated with how sexual (i.e., how sexually arousing to the male) the
material is. See, e.g., Memoirs v. Massachusetts, 383 U.S. 413, 460 (1966) (White, J., dissent-
ing); Heffner, What G, PC, R and A' Really Means 126, CONG. REc. 172 (daily ed. Dec. 8, 1980);
Report of the Committee on Obscenity and Film Censorship (the Williams Report) (1981). Andrea
Dworkin brilliantly gives the reader the experience of this aesthetic in her account of the
pornography. A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN, supra note 1, at 25-
47.
25. To the body of law ably encompassed and footnoted by Lockhart & McClure, Litera-
ture, The Law of Obscenity and the Constitution, 38 MINN. L. REV. 295 (1954) and Censorship of
Obscenity, 45 MINN. L REv. 5 (1960), I add only the most important cases since then: Stanley
v. Georgia, 394 U.S. 557 (1969); U.S. v. Reidel, 402 U.S. 351 (1970); Miller v. California, 413
U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Hamling v. U.S., 418 U.S.
87 (1973); Jenkins v. Georgia, 418 U.S. 153 (1973); U.S. v. 12 200-Ft. Reels of Super 8MM
Film, 413 U.S. 123 (1973); Erznoznick v. City of Jacksonville, 422 U.S. 205 (1975); Splawn v.
California, 431 U.S. 595 (1976); Ward v. Illinois, 431 U.S. 767 (1976); Lovisi v. Slayton, 539
F.2d 349 (4th Cir. 1976). New York v. Ferber, 458 U.S. 747 (1982).
26. For a discussion of the role of the law of privacy in supporting the existence of pornog-
raphy, see Colker, Pornographyand Privacy." Towards the Development of a Group Based Theory for Sex
Based Intrusions of Privacy, 1 LAW AND INEQUALITY: A JOURNAL OF THEORY AND PRACTICE
191 (1983).
27. Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COL. L. REV. 391, 395
(1963).
329
Yale Law & Policy Review Vol. 2:321, 1984
28. These parallels are discussed more fully in SIGNS II, supra note 11. It may seem odd to
denominate "moral" as female here, since this article discusses male morality. Under male
supremacy, men define things; I am describing that. Men define women as "moral." This is
the male view of women. My analysis, a feminist critique of the male standpoint, terms
"moral" the concept that pornography is about good and evil. This is my analysis of them, as
contrasted with their attributions of women.
29. A reading of case law supports the reports in R. WOODWARD & S. ARMSTRONG, THE
BRETHREN 194 (1979), to the effect that this is a "bottom line" criterion for at least some
justices. The interesting question becomes why the tactics of male supremacy would change
from keeping the penis hidden, covertly glorified, to having it everywhere on display, overtly
glorified. This suggests at least that a major shift from private terrorism to public terrorism
has occurred. What used to be perceived as a danger to male power, the exposure of the
penis, has now become a strategy in maintaining it.
30. One possible reading of McClure & Lockhart, supra note 25, is that this was their
agenda, and that their approach was substantially adopted in the third prong of the Miller
doctrine. For the law's leading attempt to grapple with this issue, see A Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S.
413 (1966), overruledin part, Miller v. California, 413 U.S. 15 (1973). See also U.S. v. One Book
Entitled "Ulysses," 5 F. Supp. 182 (S.D.N.Y. 1933), aft'd 72 F.2d 705 (2d Cir. 1934).
31. Andrea Dworkin and I developed this analysis in our class, "Pornography," at the
University of Minnesota Law School, Fall 1983. See also Dworkin, Why So-Called RadicalMen
Love and Need Pornography,in TAKE BACK THE NIGHT, supra note 8, at 141 (the issue of pornog-
raphy is an issue of sexual access to women, hence involves a fight among men).
Not a Moral Issue
32. Those termed "fathers" and "sons" in Andrea Dworkin's article, supra note 31, we
came to term "the old boys," whose strategy for male dominance involves keeping pornogra-
phy and the abuse of women private, and "the new boys," whose strategy for male dominance
involves making pornography and the abuse of women public. In my view, Freud, and the
popularization of his derepression hypothesis, figures centrally in "the new boys" approach
and success. To conclude, as some have, that women have benefitted from the public availa-
bility of pornography, hence should be grateful for its continuing availability, is to say that
the merits of open condoned oppression relative to covert condoned oppression warrant its
continuation. This reasoning obscures the possibility of ending the oppression. The benefit of
pornography's open availability, it seems to me, is that women can know who and what we
are dealing with in order to end it. How, is the question.
Yale Law & Policy Review Vol. 2:321, 1984
a work's value among men enhances its injury to women. Existing stan-
dards of literature, art, science and politics are, in feminist light, remark-
ably consonant with pornography's mode, meaning and message.
Finally and foremost, a feminist approach reveals that although the con-
tent and dynamic of pornography are about women-about the sexual-
ity of women, about women as sexuality-in the same way that the vast
majority of "obscenities" refer specifically to women's bodies, our invisi-
bility has been such that the law of obscenity has never even considered
38
pornography a women's issue.
To appeal to "prurient interest" 39 means, I believe, to give a man an
erection. Men are scared to make it possible for some men to tell other
men what they can and cannot have sexual access to because men have
power. If you don't let them have theirs, they might not let you have
yours. This is why the indefinabihily of pornography, "all the one man's
this is another man's that," 40 is so central to pronography's defnl'tion. It
is not because they are such great liberals, but because those other men
might be able to do to them whatever they can do to those other men,
and this is more why the liberal principle is what it is. What this ob-
scures, because the fought-over are invisible in it, is that the fight over a
definition of obscenity is a fight among men over the best means to
guarantee male power as a system. The question is, whose sexual prac-
graphed while masturbating surely suffers the same psychological harm whether the
community labels the photography 'edifying' or 'tasteless.' The audience's appreciation of
the depiction is simply irrelevant to New York's asserted interest in protecting children from
psychological, emotional, and mental harm." New York v. Ferber, 458 U.S. 747, 774-75
(1982) (concurring). Put another way, how does it make a harmed child not harmedthat what
was produced by harming him is great art?
38. Women typically get mentioned in obscenity law only in the phrase, "women and
men," used as a synonym for "people." At the same time, exactly who the victim of pornog-
raphy is, has long been a great mystery. The few references to "exploitation" in obscenity
litigation clarify the issue in at least one respect: the victim is not female. For example, one
reference to "a system of commercial exploitation of people with sadomasochistic sexual aber-
rations" concerned the customers of women dominatrixes, all of whom were male. State v.
Von Cleef, 102 N.J. Super. 104, 245, A.2d 495, 505 (1968). The children at issue in Ferber
were male. Justice Frankfurter invoked the "sordid exploitation of man's nature and im-
pulses" in discussing his conception of pornography in Kingsley Pictures Corp. v. Regents,
360 U.S. 684, 692 (1958).
39. Miller v. California 413 U.S. 15, 24 (1973)
40. See, e.g., Miller v. California, id., at 40-41 (Douglas, J., dissenting) ("What shocks me
may be sustenance for my neighbors."); U.S. v. 12 200-Ft. Reels of Film, 413 U.S. 123, 137
(1972) (Douglas, J., dissenting) ("[W]hat may be trash to me may be prized by others.").
Cohen v. California, 403 U.S. 15, 25 (1970) (Harlan, J.,) ("One man's vulgarity is another's
lyric"). Winters v. New York, 333 U.S. 507, 510 (1947) ("What is one man's amusement,
teaches another's doctrine."); D.H. Lawrence, PORNOGRAPHIC AND OBSCENITY 5 (1929). As
put by Chuck Traynor, the pimp who forced Linda Lovelace into pornography, "I don't tell
you how to write your column. Don't tell me how to treat my broads," quoted in G.
STEINEM, The Real Linda Lovelace, in OUTRAGEOUS ACTS AND EVERYDAY REBELLIONS 243,
252 (1983).
Yale Law & Policy Review Vol. 2:321, 1984
tices threaten this that can afford to be sacrificed to its maintenance for
the rest? Public sexual access by men to anything other than women is
less likely to be protected speech. This is not to say that male sexual
access to anything-children, other men, women with women, objects,
animals-is not the real system. The issue is how pub/'c that system will
be, which the obscenity laws, their definition and patterns of enforce-
ment, are major in regulating. The bind of the "prurient interest" stan-
dard here is that, to find it as a fact, someone has to admit that they are
sexually aroused by the materials 4 1 but male sexual arousal signals the
importance of protecting them. They put themselves in this bind and
then wonder why they cannot agree. Sometimes I think that what is
ultimately found obscene is what does not turn on the Supreme Court, or
what revolts them more, which is rare, since revulsion is eroticized;
sometimes I think that what is obscene is what turns on those men that
the men in power think they can afford to ignore; sometimes I think that
part of it is that what looks obscene to them is what makes them see
themselves as potential targets of male sexual aggression, even if only
momentarily; sometimes I think that the real issue is how male sexuality
is presented, so that anything can be done to a woman but obscenity is
42
that sex that makes male sexuality look bad.
Courts' difficulties framing workable standards to separate "prurient"
from other sexual interest, commercial exploitation from art or advertis-
ing, sexual speech from sexual conduct, and obscenity from great litera-
ture make the feminist point. These lines have proven elusive in law
because they do not exist in life. Commercial sex resembles art because
both exploit women's sexuality. The liberal's slippery slope is the femi-
nist totality. Whatever obscenity may do, pornography converges with
more conventionally acceptable depictions and descriptions like rape
does with intercourse because both express the same power relation.
Just as it is difficult to distinguish literature or art against a background,
a standard, of objectification, it is difficult to discern sexual freedom
41. For the resolution of this issue for non-standard sexuality, see Mishkin v. New York,
383 U.S. 502, 508 (1966).
42. None of this is intended as a comment about the personal sexuality or principles of
any judicial individual, but rather as a series of analytic observations that emerge from a
feminist attempt to interpret the deep social structure of a vast body of case law on the basis
of a critique of gender. Further research should systematically analyze the contents of the
pornography involved in the cases. For instance, with respect to the last hypothesis in the text
above, is it just chance that the first film to be found obscene by a state supreme court depicts
male masturbation? Landau v. Fording, 245 C.A.2d 820, 54 Cal. Rptr. 177 (1966). Given
the ubiquity of the infantilization of women and the sexualization of little girls, would Ferber
have been decided the same way if it had shown 12-year-old girls masturbating? Is the depic-
tion of male sexuality in a way that men think is dangerous for women and children to see,
the reason that works like LADY CHATrERLEY'S LOvER and TROPIC OF CANCER got in
trouble?
334
Not a Moral Issue
43. Roth v. U.S., 354 U.S. 476 (1957), but cf. Stanley v. Georgia, 394 U.S. 557 (1969) in
which the right to private possession of obscene materials is protected as a First Amendment
speech right. See 67 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE
UNITED STATES: CONSTITUTIONAL LAW 850 (P. Kurland & G. Casper eds. 1975).
44. See, e.g., THE REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY,
supra note 8, at I (charging the Commission to study "[tlhe effect of obscenity and pornogra-
phy upon the public and particularly minors and its relation to crime and other antisocial
behavior.").
45. N. Scheman, "Making it All Up," (transcript of speech, Jan. 1982, available from the
author).
335
Yale Law & Policy Review Vol. 2:321, 1984
and so has been defined out of the customary approach taken to, and
dominant values underlying, the First Amendment.
The theory of the First Amendment under which most pornography is
protected from governmental restriction proceeds from liberal assump-
tions46 which do not apply to the situation of women. First Amendment
theory, like virtually all liberal legal theory, presumes the validity of the
distinction between public and private: the "role of law [is] to mark and
guard the line between the sphere of social power, organized in the form
of the state, and the area of private right. '4 7 On this basis, courts distin-
guish between obscenity in public (which can be regulated, even if at-
tempts founder, some seemingly in part because the presentations are
public) 48 and the private possession of obscenity in the home. 49 The
problem is that not only the public but also the private is a "sphere of
social power" of sexism. On paper and in life pornography is thrust
upon unwilling women in their homes.50 The distinction between pub-
lic and private does not cut the same for women as for men. 5 1 It is men's
right to inflict pornogi-aphy upon women in private that is protected.
The liberal theory underlying First Amendment law further believes
that free speech, including pornography, helps discover truth. Censor-
ship restricts society to partial truths. So why are we now-with more
pornography available than ever before-buried in all these lies? Laissez
faire might be an adequate theory of the social preconditions for knowl-
edge in a nonhierarchical society. But in a society of gender inequality
the speech of the powerful impresses its view upon the world, concealing
46. For the general body of work to which I refer, which is usually taken to be diverse, see
T. I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT (1967); T. I.
EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); A. MEIKELJOHN, FREE
SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948); Whitney v. California, 274 U.S.
357, 375 (1927) (Brandeis, J., concurring, joined by Holmes, J.); Scanlon, A Theory of Free
Expression, 1 PHIL. & PUB. AFF. 204 (1972); Ely, Flag Desecration: A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975); Z.
CHAFEE, FREE SPEECH IN THE UNITED STATES 245 (1948). This literature is ably summa-
rized and anatomized by Ed Baker, who proposes an interpretative theory that goes far to-
ward responding to my objections here, without really altering the basic assumptions I
criticize. See Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964 (1978)
and The Process of Change and the Liberty Theory of the First Amendment, 55 So. CAL. L. REV. 293
(1982).
47. T.I. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 28 (1966).
48. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Bread v. Alexandria, 341
U.S. 622, 641-45 (1951); Kovacs v. Cooper, 336 U.S. 77, 87-89 (1949).
49. Stanley v. Georgia, 394 U.S. 557 (1969).
50. See A. Walker, Coming Apart, in TAKE BACK THE NIGHT, supra note 8, at 95; D. Russell
supra note 9; Hearings (Minneapolis) supra note 22. Cf Paris Adult Theatre I v. Slaton, 413
U.S. 49, 71 (1973) (Douglas, J., dissenting) ("[In] a life that has not been short, I have yet to
be trapped into seeing or reading something that would offend me."). He probably hadn't.
51. See my The Male Ideology of Privay. A Feminist Perspectiveon the Right to Abortion, RADICAL
AMERICA, Feb. 1984, at 23-35, for a fuller discussion of this point.
336
Not a Moral Issue
337
Yale Law & Policy Review Vol. 2:321, 1984
53. The essentially scientific notion of causality did not first appear in this law at this
time, however. See, e.g., U.S. v. Roth, 237 F.2d 796, 812-17, 826 n. 70 (1957) (Frank, J.,
concurring) ("According to Judge Bok, an obscenity statute may be validly enforced when
there is proof of a causal relation between a particular book and undesirable conduct. Almost
surely, such proof cannot ever be adduced.").
Werner Heisenberg, criticizing old ideas of atomic physic, in light of Einstein's theory of
relativity, states the conditions that must exist for a causal relation to make sense: "To coordi-
nate a definite cause to a definite effect has sense only when both can be observed without
introducing a foreign element disturbing their interrelation. The law of causality, because of
its very nature, can only be defined for isolated systems..." W. HEISENBERG, THE PHYSI-
CAL PRINCIPLES OF THE QUANTUM THEORY 63 (1930). Among the influences that disturb
the isolation of systems are observors. Underlying the adoption of a causality standard in
obscenity law is a rather hasty analogy between the regularities of physical and social systems,
an analogy which has seldom been explicitly justified or even updated as the physical sciences
have altered their epistemological foundations. This kind of causality may not be readily
susceptible to measurement for the simple reason that social systems are not isolated systems;
experimental research (which is where it has been shown that pornography causes harm) can
only minimize what will always be "foreign elements." Pornography and harm may not be
two definite events anyway; perhaps pornography is a harm. Moreover, if the effects of por-
nography are systematic, they may not be isolable from the system in which they exist. This
would not mean that no harm exists; rather, because the harm is so pervasive, it cannot be
sufficiently isolated to be perceived as existing according to this causality model. In other
words, if pornography is only seen as harmful if it causes harm by this model, and if it exists
socially only in ways that cannot be isolated from society itself, that means that its harm will
not be perceived to exist. I think this describes the conceptual situation in which we find
ourselves.
54. Horowitz, The Doctrine of Objective Causation, in THE POLITICS OF LAW 201 (D. Kairys
ed. 1982). The pervasiveness of the objectification of women has been considered as a reason
why pandering should not be Constitutionally restricted: "The advertisements of our best
338
Not a Moral Issue
magazines are chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the poten-
tial buyer's attention to lotions, tires, food, liquor, clothing, autos, and even insurance poli-
cies." Ginzburg v. U.S., 383 U.S. 463, 482 (1966) (Douglas, J., dissenting). Justice Douglas
thereby illustrated, apparently without noticing, that somebody knows that associating sex, i.e.,
women's bodies, with things causes people to act on that association.
55. L. LOVELACE, supra note 10.
56. Two boys masturbating with no showing of explicit force demonstrates the harm of
child pornography in New York v. Ferber, 458 U.S. 747 (1982), while shoving money up a
woman's vagina, among other acts, raises serious questions of "regulation of 'conduct' having
a communicative element" in live sex adjudications, California v. LaRue, 409 U.S. 109, 113
(1972) (live sex can be regulated by a state in connection with serving alcoholic beverages).
"Snuff" films, in which a woman is actually murdered to produce a film for sexual entertain-
ment, are known to exist. People v. Douglas and Hernandez, Felony Complaint
#NF8300382, Municipal Court, Judicial District, Orange County, California, August 5,
1983, alleges the murder of two young girls to make a pornographic film.
57. Both Susan Griffin (PORNOGRAPHY AND SILENCE, supra note 15) and the oldest An-
glo-Saxon obscenity cases locate the harm of pornography in the mind of the consumer. See,
e.g., Regina v. Hicklin, 3 Q.B. 360, 371 (1868) ("tendency ... to deprave and corrupt those
whose minds are open to such immoral influences and into whose hands a publication of this
sort may fall"). The data of Court and of Kutchinsky, both correlational, reach contrary
conclusions on the issue of the relation of pornography's availability to crime statistics.
Kutchinsky, Towards an Explanationof the Decrease in RegisteredSex Crimes in Copenhagen, 7 TECH-
NICAL REPORT OF THE COMMISSION ON OBSCENITY AND PORNOGRAPHY 263 (1971); Kutch-
insky, The Effect of Easy Avaiiability of Pornography on the Incidence of Sex Crnes: The Danish
Experience, 29 J. oF Soc. ISSUES 163 (1973); f Court, Pornographyand Sex Crines:A Re-Evalua-
tion in the Light of Recent Trends Around the World, 5 INT'L J. OF CRIMINOLOGY AND PENOLOGY
129 (1977). More recent investigations into correlations focused on rape in the United States
have reached still other conclusions. L. Baron and M. Straus have found a strong correlation
between state-to-state variations in the rate of reported rape and the aggregate circulation
rate of popular men's sex magazines, including PLAYBOY and HUSTLER. "Sexual Stratifica-
tion, Pornography, and Rape," Family Research Laboratory and Department of Sociology,
University of New Hampshire, Durham, New Hampshire, Nov. 18, 1983 (manuscript). The
authors conclude, at page 16, that "the findings suggest that the combination of a society
which is characterized by a struggle to secure equal rights for women, by a high readership of
sex magazines which depict women in ways which may legitimize violence, and by a context
in which there is a high level of non-sexual violence, constitutes a mix of societal characteris-
tics which precipitate rape." See also the Williams Report (1981), supra note 24, and the opin-
ions of Justice Harlan on the injury to "society" as a permissible basis for legislative
judgments in this area. Roth v. U.S., 354 U.S. 476, 501-2 (1956) (concurring in companion
case, Alberts v. California).
339
Yale Law & Policy Review Vol. 2:321, 1984
hoods,"'15 but the normal level of sexual force-force that is not seen as
force because it is inflicted on women and called sex-has never been a
policy issue. Until the last few years experimental research never ap-
proached the question of whether pornographic stimuli might support
sexual aggression against women 59 or whether violence might be sexually
stimulating or have sexual sequelae. 60 Only in the last few months are
we beginning to learn the consequences for women of so-called consen-
61
sual sexual depictions that show normal dominance and submission.
We still don't know the impact of female-only nudity or of depictions of
specific acts like penetration or of even mutual sex in a social context of
gender inequality.
The most basic assumption underlying First Amendment adjudica-
tion is that, socially, speech is free. The First Amendment says, "Con-
gress shall not abridge the freedom of speech." Free speech exists. The
problem for government is to avoid constraining that which, if uncon-
strained by government, is free. This tends to presuppose that whole
segments of the population are not systematically silenced socialy, prior
to government action. The place of pornography in the inequality of
the sexes makes such a presupposition untenable and makes any ap-
proach to our freedom of expression so based worse than useless. For
women, the urgent issue of freedom of speech is not primarily the avoid-
ance of state intervention as such, but finding an affirmative means to
get access to speech for those to whom it has been denied.
III
340
Not a Moral Issue
66. D. HUME, Of PersonalIdentity,in A TREATISE OF HUMAN NATURE, bk. I, pt. IV, Sec.
VI (1888).
67. B. WILLIAMS, Are Persons Bodies?, PersonalIdentity and Individualization, and Bodily Con-
tinuity and Personal Identity in PROBLEMS OF THE SELF 1, 64 (1973). Bernard Williams was
principal author of the Willtams Report, supra note 22, Britain's equivalent to the U.S. Com-
mission on Obscenity and Pornography, in which none of his values of "persons" were noticed
lacking in, or women deprived of them by, pornography.
342
Not a Moral Issue
71. This, again, does not mean that it is an idea. A new theory of ideology, prefigured in
Andrea Dworkin's PORNOGRAPHY, supra note 1, will be needed to conceptualize the role of
pornography in constructing the condition of women.
72. A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN, supra note 1, 115.
73. "Echoing Macaulay, 'Jimmy' Walker remarked that he had never heard of a woman
seduced by a book." U.S. v. Roth, 237 F.2d 796, 812 (1957) (appendix to concurrence of
Frank, J.) What is classically called seduction, I expect feminists would interpret as rape or
forced sex.
344
Not a Moral Issue
IV
I said all that in order to say this: the law of obscenity has the same
surface theme and the same underlying theme as pornography itself.
Superficially both involve morality: rules made and transgressed for
purposes of sexual arousal. Actually, both are about power, about the
equation between the erotic and the control of women by men: women
made and transgressed for purposes of sexual arousal. It seems essential
to the kick of pornography that it be to some degree against the rules;
but it is never truly unavailable or truly illegitimate. Thus obscenity
law, like the law of rape, preserves the value without restricting the abil-
ity to get, that which it purports to both devalue and to prohibit. Ob-
scenity law helps keep pornography sexy by putting state power-force,
hierarchy-behind its purported prohibition on what men can have sex-
ual access to. The law of obscenity is to pornography as pornography is
to sex: a map that purports to be a mirror, a legitimization and authori-
zation and set of directions and guiding controls that project themselves
onto social reality, while purporting merely to reflect the image of what
is already there. Pornography presents itself as fantasy or illusion or
idea, which can be good or bad as it is accurate or inaccurate, while it
actually, hence accuratey, distributes power. Liberal morality cannot deal
with illusions that constitute reality because its theory of reality, lacking a
substantive critique of the distribution of social power, cannot get be-
hind the empirical world, truth by correspondence. On the surface,
both pornography and the law of obscenity are about sex. In fact, it is
the status of women that is at stake.