Pornography and Civil Rights

Law has traditionally considered pornography to be a question of private virtue and public morality, not personal injury and collective abuse. The law on pornography has been the law of morals regulation, not the law of public safety, personal security, or civil equality. When pornography is debated, in or out of court, the issue has been whether government should be in the business of making sure only nice things are said and seen about sex, not whether government should remedy the exploitation of the powerless for the profit and enjoyment of the powerful. Whether pornography is detrimental to "the social fabric" has therefore been considered; whether particular individuals or definable groups are hurt by it has not been, not really.

Since, in this traditional view, pornography can only violate an idea of the society one wants to think one lives in, the question of pornography has not required looking into who can violate whom and get away with it. Once pornography is framed as concept rather than practice, more thought than act, more in the head than in the world, it's effects also necessarily appear both insubstantial and unsubstantiated, more abstract than real. So both what pornography is and what it does have been to lie in the eye of the beholder, to be a matter of what one is thinking about when one looks at it, to be a question of point of view. And since the accepted solution for differing moral views has been mutual tolerance, one man's harm has been another's social value as the pornography industry in the United States has been doubled in the last ten years without effective interface from the courts.

The law has been wrong. Obscured beneath the legal fog of obscenity law and the sheild of the law of privacy and the perversely cruel joke of the law against prostitution has been the real buying and selling of real individuals through coercion or entrapment, or through exploiting their powerlessness, social worthlessness and lack of choices and credibility, their despair and sometimes their hope. Shielded from public view, in part through the collaboration of law, has been the manufacture from skin and blood and ruined lives of a vicious product by vicious people. Veiled as well has been the shameless profiteering in run-down parts of town, the pressure deals with unscrupulous politicians and judges, the arm-twisting of retailers, the take overs of magazine distribution networks and underground control of legitimate entertainment businesses, the threats and sabotage of the personal, occupational, and public lives of anyone who gets in their way, and the outright buying of liberal credibility, which parades a traffic in human beings-this auction block on every newsstand in the country-as a principled means of sexual and expressive freedom, and stigmatizes doing or saying anything about it as censorship.

Equally clouded by specious media reports and outright lies has been the direct evidence of a causal relationship between the consumption of pornography and increases in social levels of violence, hostility, and discrimination. *So, few knew of those trapped in sexually toxic marriages or jobs to keep a roof over their heads and to feed their children. Few-except the many who did it or had it done to them-knew that the abuses of pornography's production are a mere prelude to the abuse mass-produced through pornography's mass distribution and mass consumption: the rapes, the battery, the sexual harassment, the sexual abuse of children, the forced sex, the forced prostitution, the unwanted sexualization, the second-class status. And the increasing inability to tell the difference between all of that and sex-all of that and just what a woman is.

Those who do this are silent in order to protect their power, profits, and pleasure. Many who have this done to them are silent because they are ashamed, afraid, bought, or dead. But overwhelmingly they are silent because even when they speak no one listens. This makes them ashamed and afraid-and even, for all we know, bought or dead. For the rest, those who have known have not cared, and those who might have cared have not known-or were kept from knowing, or were not permitted to care, or thought they could not afford to know or care. Completely absent from most legal and political debate on the subject have been the twelve individual men whose names virtually never surface. These are the heads of large organized-crime families who own, control, and profit from the pornography industry, buying with terror whatever legitimacy and impunity they cannot buy with money, thriving while others pay the human cost. The entire debate over pornography is primarily for their benefit.

The legal conception of what pornography is has authoritatively shaped the social conception of what pornography does. Instead of recognizing the personal injuries and systemic harms of pornography, the law has told the society that pornography is a passive reflection or one-level-removed "representation" or symptomatic by-product or artifact of the real world. It thus becomes an idea analog to, a word or picture replay of, something else, which somehow makes what it presents, that something else, not real either. So its harms have not been seen as real. They have, in fact, been protected under the disguise of the name given that world of words and pictures which are not considered real: "speech." This could happen because law is an instrument of social power first, and those who produce and consume pornography have social power. Pornography is made unreal to protect it, in order to protect the pleasure, sexual and financial, of those who derive its benefits. Those who are hurt by pornography-society's powerless, its disregarded, its rejects, the invisible and voiceless, mostly women and children-are made unreal in order to keep their abuse defined the way those who enjoy it define it: as sex. Particularly with women, whose social definition as inferior is a sexual one, victimization through pornography has been perceived as a natural state, not as victimization at all but as fitting and chosen. When they are thought to be paid for their exploitation, that both confirms that this is what they have to sell and, by making it a market transaction, makes it appear not to be exploitation at all.

Law is often thought to be a neutral instrument. But law has participated directly in making pornography a legal and social institution. Obscenity law misdefines the problem of pornography as offensive and immoral public displays of sex, evades the real harms, and is unworkable in design, while always making it seem that the problem could be solved with greater exercise of prosecutorial will. It is the seductiveness of obscenity law to seem potentially effective because its terms are so meaningless they could mean almost anything. As a result, they have meant almost nothing, being (actually) dependent upon the viewpoint of the observer. This makes obscenity law less useful the more pornography is a problem, because the more pornography is consumed, the more observers' views are shaped by it, and the more the world it makes confirms that view. Privacy law has further institutionalized pornography by shielding the sexual sphere, where so much of pornography's violence to women is done, including by outright guaranteeing the right to possess pornography in the home, the most violent place for women. Pornography has also been legally institutionalized through decrying but permitting pimping and prostitution (of which pornography is one form), making sure prostitutes are the ones who pay for doing what the entire social system has given them, as women, little choice but to do in one form or another.

The law has helped make pornography a social institution more indirectly as well. The law of rape makes the pornographic assumption that women may consent to forced sex. The law of child custody applies the pornographic definition of the female to mothers. Women who have sexual relations with a man or men not the father of their children have long been considered loose women, hence not good mothers. Lesbian mothers have found that a woman who is not being sexually used by a man is considered an inadequate woman, hence also not a good mother. The frequent failures of attempts under sex-discrimination law to get women the same pay as men when they do different work of comparable value permits job definitions and pay scales to continue based on pornographic definitions of women's proper role as men's hierarchical subordinates, as sexually pleasing to men visually, and as servicers of male needs. It also keeps women so poor they need to sell sex to men to survive. The law of evidence pervasively permits a woman's credibility to be based upon the pornographic standard that what a woman is sexually and does sexually is the relevant measure of her word and her worth. If she has had sex, she is worthless as a human being and can neither be violated nor believed. If she has not had sex, she is worthless as a woman, hence is not worthy of belief. Pervasively, whether by the collaboration of ineffective of perverse action, or by the complicity of inaction, the legal system has supported the existence and burgeoning of this industry and it's social propriety as well. Deep legal echos on all levels of the system support the existence of pornography in the world and make it seem right that the legal system condones it. What the law does, the law must undo.

Law in the United States provides a forum for airing disputes recognized as legitimate and an avenue for redressing grievances and harms considered worth intervention. For individuals who are hurt by other individuals, civil court promises dignity to conflict, recognition to an arguable harm, some ground rules beyond overt force, an opportunity to fight for one's life, a chance for vindication, and the possibility of relief...maybe even a little change. Those whose harms the society takes seriously are permitted access to court; they are full citizens. Those whose harms the law refuses even to allow into court are not; they are victims, period. In this country, civil-rights law particularly has been an oppositional force for change. It has given people dignity, self-respect, and hope, without which people cannot live. Ever since Black people demanded legal change as one means to social change, civil rights has stood for the principle that systematic social inequality-the legal and social institutionalization of group-based power and powerlessness-should and would be undone by law. Law would do this both because it had a shameful part in creating and maintaining social inequality and because it could do something about it. The fact that law had obscured or permitted inequality, had reflected and furthered it both, was seen not as a reason that law should be disregarded but as a reason it had to be used.

This was not done out of political naivete or civics- class faith in the legal system's intrinsic justice. It was done out of determination to make this society's normal everyday mechanisms work for normal everyday people-all of them. Civil rights is a "Look, we live here, too" movement. It is not dedicated primarily to making the society more comfortable for outlaws or to lessening the stigma of marginality or to making powerlessness feel better. It is dedicated to changing basic norms so that what was outlaw and marginal and powerless no longer is. It aims to alter the mainstream. For civil-rights movements, then, the fact that law is an instrument of the powerful has never been an inert fact to be met with complacency or despair, far less a reason to leave it's power in the hands of the powerful. It has been a reason that the law cannot afford to be ignored. the law's pretense at providing equal justice did not provide an occasion for cynicism, but a hypocrisy to be exposed and a promise to be delivered, not a radical reason to do nothing. The law of sex discrimination, aimed at altering the inequality of women to men, at eliminating the subordination of women to men as a norm, has been part of this tradition, at least to some of us.

The civil-rights approach to pornography is an application of this tradition, this analysis, and this determination to the emergency of pornography and the condition of women. Accordingly, the antipornography civil-rights law ("the Ordinance") does not admonish or moralize or apologize or request. By making it possible for women who can prove harm to sue pornographers, it draws a line by making action possible. In so doing, it defines a standard that tells the pornographers and their consumers that women are human beings, meaning that when they are hurt, something can be done about it. Unlike any prior approach to pornography, this law is based on proof of a harm, not a judgment about the permissibility of an idea. And, like all civil-rights legislation, it addresses a harm that derives its meaning and sting from group status.

* This evidence is consistent across social studies (studies on real people or real data in the real world), laboratory studies (controlled exposure and response situations in isolated settings), and testimony by both professionals (for example, therapists who work with victims and offenders, police who observe evidence of sex crimes) and direct victims (women in all walks of life, such as prostitutes, daughters, wives, students, employees). The evidence is summarized in Diana E.H. Russell, "Pornography and Rape: A Causal Model," Political Psychology Vol.9 No.1 (March 1988):41-73. Most of the major social and laboratory studies are discussed in N. Malamuth and E. Donnerstein, eds., Pornography and Sexual Aggression (1984) and D. Zillman, Connections Between Sex and Aggression (1984). All the relevant studies, together with analysis of victim testimony, are listed in the Attorney General's Commission on Pornography, Final Report (July 1986), 299-349; 1885-1906. Women and men testified to their experience of the causal relation between pornography and harm to them in the hearings held by the Minneapolis City Council on the Ordinance, Public Hearings on Ordinances to Add Pornography as Discrimination Against Women, Committee on Governmental operations, City Council, Minneapolis, Minn. (Dec 12-13, 1983).RETURN