The Ordinance

Statement of Policy

The statement of policy that begins the Minneapolis Ordinance capsulizes its legal approach:

Pornography is sex discrimination. It exists in Minneapolis posing a substantial threat to the health, safety, peace, welfare, and equality of citizens in the community. Existing state and federal laws are inadequate to solve these problems in Minneapolis.

Pornography is recognized as a practice of civil inequality on the basis of gender, posing the threats to its target population that all socially institutionalized inequalities do. This clause also recognizes the obvious fact that, while many of the acts that make up the distinctive harms of pornography are formally illegal, no existing laws are effective against them. If they were, pornography would not flourish as it does, and its victims would not be victimized through it as they are. Lawyers seeking to protect pornography often become extremely ingenious in inventing legal theories that they insist already cover all serious harms of pornography-legal theories they seldom intend to try to make work, by the way.

In fact, no laws now permit those victimized by pornography to sue the pornographers for the pornography. So long as the pornography can be made and sold, the harms of its making and use will continue, and the incentive to make it and sell it will continue. Obscenity laws have proven essentially unworkable against the industry-even with all the power at the disposal of federal, state, and local law enforcement, even in the hands of expert and committed lawyers. Zoning laws move some of the harms of pornography from one district to another, but do nothing to address them. Criminal laws exist against rape, battery, assault, kidnapping, sexual molestation of children, and many other acts that are standard practice in the pornography industry. The problem is, police and prosecutors and judges and juries view the women in the materials the way the pornography does: because of what they are doing, they are not hurt by it. Consider also that the women in pornography are prostitutes, hence unlikely to find the criminal-justice system hospitable to their claims. Privacy laws also exist against commercial exploitation of image in some states. In theory, these would seem to protect some coerced models; in practice, they have proven virtually useless. Some states provide special laws restricting the use of a person's image after they are dead-small consolation to the victim, one imagines. Attempts are being made through sexual-harassment law to address pornography in the workplace; results are extremely mixed. Nothing addresses pornography forced on victims at home.

It is not unusual for civil-rights violations to include many acts that the dominant group has previously recognized as injurious, just not in a way that is workable for the subordinate group. For instance, the acts comprising lynching and much sexual harassment were formally illegal before they were recognized as abuses of civil rights, but until they were so recognized, nothing was done about them. Moreover, if laws currently addressed pornography through its harms to victims, such laws would be precedent for the Ordinance, not necessarily a reason it should not exist. This is only to say that the Ordinance cannot be both unconstitutional and legally redundant. But, in the real world, women who are abused through pornography have essentially made the same realistic assessment of their chances in the legal system that the legislatures who pass the Ordinance make: no laws now on the books are likely to work because they have not worked. Defending the legal status quo at a point like this is nothing but complacency and complicity with human suffering.