CIVIL RIGHTS ANTI-PORNOGRAPHY LEGISLATION:
ADDRESSING THE HARM TO WOMEN
Copyright © 1992
by Steven Hill and Nina Silver.
All Rights Reserved.
Originally published in Transforming a Rape Culture
Published by Milkweed Editions.
The Civil Rights Anti-Pornography Ordinance: Fair or Foul? With all this evidence, it seems difficult--even disingenuous--to argue that no harm results from the production or distribution of pornography. The larger point is: what, if anything, should be done about the harm? Is the civil rights antip ornography approach a worthy attempt, or will it lead to the censorship and "chilling effect" that its detractors claim? To answer this question, it is necessary to examine the Ordinance in some detail.
Like the Canadian counterpart that recently passed in that court, the United States version of the "harm to women"approach to antipornography legislation defines pornography as sex discrimination. Unlike the Canadian law however, the U.S. version has not been framed in the context of a criminal obsc enity law. Rather, it allows victims to bring civil lawsuits to seek monetary damages and injunctive relief from those who have harmed them. The Ordinance spells out five unlawful practices:
* Coercion into performance in pornography; * Forcing pornography on any person, including a child, in any place of employment, education, home or public place; * Assault or physical attack directly caused by specific pornography (there are cases of sexual assault in which certain pieces of pornography were used as actual textbooks that illustrated how to assault); * Defamation of any person through the unauthorized use in pornography of their name, image or likeness; * Trafficking in pornography--production, distribution or sale of material that meets the definition of pornography in the legislation. Critics of the civil rights antipornography legislation--among them the American Civil Liberties Union, the American Booksellers Association, the Pacific Northwest Booksellers Association, libraries, individual artists and owners of bookstores - - center their arguments around the fear that such legislation will promote censorship. They further warn of an a priori "chilling effect" on free speech by causing artists to censor their creations, or bookstore owners to censor materials from their boo kstores to minimize the risk of litigation--thereby prohibiting materials otherwise protected by law, including popular novels, sex education self-help books, much erotic and even religious art, and popular music videos.
Yet the law includes several safeguards to prevent censorship. One section states that "isolated passages or isolated parts shall not be actionable." This means that the isolated love scenes in a literary work, the occasional nude photo or love scenes in a favorite book or film, or even the rape scenes in a romance novel or the erotic poetry of Yeats, could not make these books or films legally actionable. What is actionable are forms of expression that portray page after page, scene after scen e of acts of violence, harm, and degradation against women. Another section of the law excludes from prosecution "city, state, and federally funded public libraries and public university and college libraries in which pornography is available for study."
In addition, civil suits can only be initiated by a victim who has been harmed in one of the five ways mentioned above by a specific piece of pornography, and the burden of proof is on the complainant. That piece must then meet the legal definiti on of pornography, which more than a definition is actually just a description of the types of treatment that women receive in pornography (i.e. "women are presented as sexual playthings who experience sexual pleasure in being raped....as tied up, cut up,
mutilated, bruised...women are reduced to body parts...presented as whores by nature...being penetrated by objects or animals...as sexual objects, things, or commodities...objects who enjoy pain or humiliation"). Unlike current obscenity laws, no crimin al charges can result from the civil law suit, meaning that the ordinance could never be used by the government or law enforcement agencies to close a bookstore or jail someone as the result of producing or distributing pornography.
One owner of a progressive bookstore says that the legislation would burden him and other retailers by requiring them to know the contents of thousands of books in stock. He also fears that the legislation might lead to "nuisance suits." This ar gument is valid, since even the filing of a lawsuit could put the bookstore in the position of having to defend itself via a costly legal process. But is it too much to ask that store owners know what it is that they are selling and is earning them incom e? Are the economic interests and rights of their business more important than the rights of women who are abused in the production and use of pornography? Should profits be more important than the safety and well-being of the millions of women whose ci vil rights are proscribed every time they walk down the street assaulted by pornographic images from newsstands and advertisements?
Statements made by anti-ordinance proponents reveal a lack of concern or awareness about the social realities of pornography. "It is my position to defend my right to write. It's not my position to defend pornographers," states one romance novel ist. Yet in joining a lawsuit filed against the Bellingham Ordinance, the writer placed herself in the paradoxical position of doing just that. Furthermore, she conveyed the message that her privilege to write whatever she chooses--no matter whom it h urts--is more important than the rights of women who are being forced into producing pornography, who are attacked and harassed due to pornography, and whose freedom of speech and rights to physical, economic, and political self-determination are harmed every second by the proliferation of pornography in our society.
"If people are willing to accept that books can have good influences, they must accept that some books may have negative influences on some people," says a librarian. The "free speech" argument, however, ignores the reality that pornography is a $10 billion industry, and that real women and girls are coerced and abused in the actual production of porn. This argument also ignores the irony that when brutal or sexist acts become frozen into a media form, they are transmogrified into "art" and are then entitled to legal protections as "free speech."
Also--and this is very telling--the critics' claims that the Ordinance would automatically lead to censorship are based on fears of "what ifs" and a distrust in the people who sit on juries to apply this legislation in a responsible fashion. Does the possibility exist for someone to abuse this law? Of course--just as someone might abuse sexual harassment or racial discrimination laws, or any other civil rights law. Undoubtedly, there have been civil suits which made unjust claims of discr imination of one sort or another. People motivated by money will try to abuse the system to "get rich quick." But does this mean we should eliminate all civil rights legislation pertaining to racial discrimination or sexual harassment? Of course not! Similarly, with the civil rights antipornography approach: its potential benefits more than outweigh any harms. At least, the Canadian Supreme Court thinks so.
The Psychology of Resistance
The huge volume of scientific studies and personal testimonies notwithstanding, most pro-pornography/anti-ordinance advocates still claim there is no proof that words and images have an effect on people's consciousness. But if words and images do n't have power, what then is the basis for advertising? Reese's candy enjoyed a marked upsurge in sales after it made a brief appearance in the movie ET. And daily we hear of the increase in various types of violence that mimic whatever was just in the news or in the latest crime movie. Clearly, there is more at stake here than just the presumed protection of "artistic expression." Why are otherwise educated people--even some feminists--refusing to educate themselves about the modern-day realities of the sex industry, about the scientific studies and women's testimony, and instead defending the pornographers? Why are they defending our image of freedom instead of perceiving the lack of freedom behind the image?
The constant barrage of the mass media, desensitizing us to the routine and familiar existence of degrading images, becomes an a priori psychological inhibitor to anti-pornography measures like the Dworkin-MacKinnon Ordinance. Women's bodies glut billboards, magazines, movies, and television, giving the message that women are less than human and enjoy such treatment. After a point, people become callous to the sexual violence we see around us, whether real or Hollywood-created, and the violence ceases to have meaning. The misogyny and degradation become invisible--not because they aren't present, but because we have blocked them out. The constant becomes commonplace, commonplace becomes normal, normal becomes natural; and what seems natural can then only be regarded as right. Most women would rather numb themselves to block out this horrifying input. To be aware of it daily may mean saying to themselves, "I live in a world where I am degraded, systematically humiliated, and considered wort hless--and where all this is regarded as normal." How many women are willing to allow themselves to become this aware? It may mean living every single day with unbearable pain, especially if the woman's husband, lover, brother, friend, or father is an aficionado of pornography. How can she live with the contradiction?
And as for men: most men seem unwilling to admit and examine this contradiction inside themselves. To do so would mean that no matter how good a lover, provider, or parent a man thinks he is, his tacit approval of pornography makes him at best in sensitive, at worst misogynistic, toward the very person he professes to care about. For men to give up what is culturally condoned--pornography--means confronting not only the violence in themselves but the male privileges that go along with it.
Part of male privilege is the control over money and power. And we fail to recognize that those with money and power control the image-making process. In fact, in the United States, it is possible for a wealthy person or institution to buy so mu ch "free" speech in the form of magazines, radios, newspapers, and television stations, that the freedom of speech of even a whole class of people i.e. women, can be limited. The objective of power-mongers--whether they are pornographers, government of ficials, corporations, or special interest lobby groups--is to retain their position and power. And to do this they skillfully manipulate the images that deluge us every day.
Call to Freedom
After all the data is examined, we are left with the nagging question: What can be done about the women who are coerced into the making of pornography, and the rape, child abuse, and other forms economic, political, and social discrimination that pornography fosters? The First Amendment must be balanced against Fourteenth Amendment rights, which guarantee each citizen "equal protection of the law."
This balancing is essentially what the Canadian Supreme Court did: it considered both the freedom of expression provisions and the equality provisions of the Canadian Charter of Rights and Freedom, and then rendered its decision. Kathleen Mahone y, law professor at the University of Calgary who argued the case for the Women's Legal Education and Action Fund, put it thus: "The court said that while the obscenity law does limit the charter's freedom of expression guarantee, it's justifiable because this type of expression harms women personally, harms their right to be equal, affects their security, and changes attitudes toward them so they become more subject to violence."
Despite the critics' claims of "chilling effects" and the specter of "government censorship" invading our lives to rip The Color Purple out of our hands and our libraries, the civil rights/"harm to women" approach to anti-pornography legislation i s gaining acceptance precisely because it is a carefully conceived legal attempt to come to grips with the widespread availability of sexist and violent pornographic images in our society. There is a vast difference between the thought police--the cens ors which pro-Ordinance activists are often accused of being--and the act of suing for damages resulting from pornography. The civil-rights approach of the Pornography Victims Compensation Act and the Dworkin-MacKinnon Ordinance contrasts markedly with the moralistic approach of obscenity laws in the United States. "Obscenity laws," author John Stoltenberg writes in Refusing To Be A Man, "are inherently subjective and arbitrary in their application because they criminalize a notion of indecency that d oes no real harm. There's no evidence that obscenity causes any harm. But there's a lot of evidence that pornography--as defined in the civil-rights Ordinance--is harmful."
To sum up: In the civil-rights legislation, pornography is defined according to harm and the claim is based on injury to victim. With the U.S. obscenity law, obscenity is defined by arousal and the crime is based on offense to public morals. The reparation for a civil law breach consists of money damages or injunction. The criminal redress for the obscenity law is imprisonment, fine, or censorship. The Ordinance is intended to protect people from circumstances such as those that Linda Marchian o endured, where she was kidnapped, forced at gunpoint to perform various demeaning acts, and raped off as well as on camera. Those women who "choose" to act in pornographic movies, or pose for centerfolds, will not be deprived of their right to do so. But the Ordinance will allow those who wish to sue the distributors of the "art" they were subjected to or engaged in against their will, providing they can prove damage.
What the civil rights/"harm to women" approach to antipornography legislation ultimately means is women believing in their human dignity and in their right to receive compensation through the justice system for brutal acts done to them. It's temp ting for its critics to see the Ordinance as other than it is, as somehow the same as U.S. obscenity laws, since demeaning printed and visual images--in advertising and other media as well as pornography--have so greatly saturated our lives and everyd ay consciousness that we tend to dismiss them as normal, as "the way things are." But "the way things are" has been proven to be devastating, not only by the scientific studies but also by the countless testimonies of women about their degradation, intim idation and discrimination as a result of pornography. The theoretical realm of "just images and words" permeates right into our daily lives.
With freedom of speech comes responsibility for that speech. Surely, taking responsibility for the effects of one's actions--whether free speech, driving a car, caring for a child, whatever--must be a cornerstone of a democracy. However, por nography is not democratic. The pornographer is not concerned about taking responsibility for the criminal acts involved in the production of pornography. Nor does the pornographer care about the responsibility of portraying people or sexuality in an et hical manner, or the damage that may result from a deceptive portrayal as evidenced by the weight of the sociological evidence and the heartbreaking testimony of many women and children. Pornography is about profits, pure and simple. And in this marketpl ace gone amok, anything is considered an exploitable and expendable resource, particularly women's bodies and human sexual relations.
Federal Judge Frank Easterbrook of the Seventh Circuit, who penned the opinion that stuck down the Indianapolis Ordinance, nevertheless accepted the argument that pornography harms women: "Depictions of subordination tend to perpetuate subordinati on. 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." Remarkably, Judge Easterbrook's opinion declared that "this simply demonstrates the power of pornography a s speech," and that First Amendment rights take precedence over the harms done to women.
But the Canadian Supreme Court rejected this notion, for the first time acknowledging that women should not be forced to shoulder an unequal burden of harm. "If true equality between male and female persons is to be achieved," wrote Justice John Sopinka, "we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material." The Canadian Supreme Court's decision gives hope and encouragement to those working to end violence and discrimina tion against women around the world.
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Steven Hill is a writer, community organizer, youth counselor and co-editor of the national pro-feminist publication Activist Men's Journal. His articles, commentaries, poems and poetry reviews have appeared in The Humanist, Making Violence Sexy edited by Dr. Diana Russell, the Seattle Times, Crossroads, The Madison (Wisconsin) Edge, Minnesota Review, Seattle Post-Intelligencer, Seattle Community Catalyst, La Voz, The Stranger, Written Arts, Prophetic Voices, The Peacemaker, The People's Weekly W orld, San Fernando Poetry Journal, African Literature, Analysis and Critical Perspectives, the anthologies Grasp the Rainbow, Poets for a Liveable Planet, and others.
Nina Silver is a Reichian therapist and writer whose essays on feminism, psychology, and sexuality have appeared in The New Internationalist, off our backs, Gnosis, Green Egg, Jewish Currents, and the anthologies Women's Glib, Call It Courage: Wom en Transcending Violence, Childless by Choice and Closer To Home: Bisexuality and Feminism. Her criticism of pornography and child abuse in the nudist movement was cited in The Utne Reader and The New Yorker, and her volume of poetry Birthing, will be pu blished in 1994 by Woman in the Moon Publications. Currently enrolled in a Ph.D. program in counseling psychology, she has just completed a book combining feminism, depth psychology, and the bodymind theories of Wilhelm Reich.
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