Civil Rights and Speech

The Ordinance takes power from some of the most powerful people in society-those who can buy and sell other human beings for intimate gratification-and gives it to some of the most powerless people in society-those who, as a class, have previously been intimately violated with impunity. Given the way the law has framed the pornography question to benefit the powerful, one could expect that the first judicial response to this redistribution would be negative. It was. In 1985, in a lawsuit brought by a media group (some pornographers, most not) against the City of Indianapolis for passing the Ordinance, the U.S. Court of Appeals for the Seventh Circuit found that the Ordinance violated the First Amendment guarantee of freedom of speech. The decision conceded that pornography does the harm we say it does, and the legislature said it did: contributing materially to rape and other sexual violence, constituting a form of subordination in itself, and being partly responsible for second-class citizenship in many forms, including economic ones. But the decision held the pornography was more important-indeed, that one could tell how important the pornography was by the harm that it did.

Miscasting the Ordinance into obscenity's old drama of ideas, the decision assumed that the Ordinance restricted ideas even though the Indianapolis Ordinance was confined to four practices: coercion into pornography, forcing pornography on a person, assault due to specific pornography, and trafficking in materials that subordinate women. So far as the Ordinance is concerned, all the ideas pornography expresses can be expressed-so long as coercion, force, assault, or trafficking in subordination is not involved. These are acts, not viewpoints or ideas. Coercion is not a fantasy. Force is not a symbol. Assault is not a representation. Trafficking in subordination is an activity two times over-once as trafficking and once as subordination-not just a mental event.

Under United States law, speech interests are regularly found less important than other interests when courts decide that pictures and words are false, obscene, indecent, racist, coercive, threatening, intrusive, or even inconvenient or inaesthetic. Using a child to make sex pictures, or distributing or receiving such pictures-whether or not the child is forced, whether or not one knows that the child is a child, and whatever the sex pictures show-is a crime for which one can be put in jail. Yet the Seventh Circuit decision on the Ordinance tells women that because pornography expresses a viewpoint about women, it does not matter if it is also coerced, assaultive, or discriminatory. Because a picture of a coerced woman might be artistic or scientific or educational, she is told she should have no action for coercion that reaches the pictures. Because films of women being raped and enjoying it express a point of view about women and sex, the fact that they cause assaults of other women-conceded by the court-is not legally important.

The Ordinance, a law against sex-based discrimination, was thus itself held to be discrimination on the basis of "viewpoint." This was apparently because the Ordinance takes a stand for sex equality, not against it. This was because the Ordinance is not neutral on the subject of sex-based exploitation, abuse, and discrimination. Every practice expresses a point of view; acts express ideas. Yet acts and practices are legally restricted anyway, and they do not have to be proven expressionless first. Segregation expresses the view that Blacks are inferior to whites and should be kept separate from them. Segregation is often enforced with pure speech, like signs that read "Whites Only." Segregation is not therefore protected speech. Such a sign is not a defense to a civil-rights violation but evidence of it. Laws against segregation are not discrimination on the basis of viewpoint, although they absolutely prohibit the view that Blacks should not mix with whites from being expressed in this way. This is true even though deinstitutionalizing segregation as a practice in the world does a great deal to undermine the point of view it expresses.

Indeed, most discrimination revolves around words, words that are clear vehicles for an ideology of exclusion or access and use-words like "You're fired, we have enough of your kind around here," "Sleep with me and I'll give you an A," or "Constituent interests dictate that the understudy to my administrative assistant be a man." Discrimination in employment or housing or through sexual harassment could not be addressed by law, far less be proven to have happened, if their speech elements rendered the entire cycle of abuse protected because the words so central to their actualization express a point of view.

Lynching expresses a clear point of view about Blacks, one it is difficult to express as effectively any other way. One point of lynching is that other Blacks see the body. The idea expressed by the body being hung on view in public is that all Blacks belong in a subordinate position and should stay there or they will be horribly brutalized, maimed, and murdered like this one was. Another point of lynching is that whites see the body. Its display teaches them that they are superior and this was done for them. Photographs were sometimes taken of lynchings and made available for 50 cents apiece. Compare such a photograph with a 1984 Penthouse spread in which Asian women were bound, trussed, and hung from trees. One cannot tell if they are dead or alive. In both cases, individuals are hung from trees; often the genitals were displayed. In both cases, they are people of color. In both cases, sexual humiliation is involved. But because the victim of the lynching is a man, the photograph is seen to document an atrocity against him and an entire people, while, because the victim of the pornography is a woman, it is considered entertainment and experienced as sex and called speech and protected as a constitutional right.

If lynchings were done in order to make photographs, on a ten-billion-dollar-a-year scale, would that make them protected speech? The issue here is not whether the acts of lynching are illegal or not. (As with the acts surrounding pornography, on paper they mostly were illegal, while in reality they mostly were not-not until a specific law, a civil-rights law, was passed against them.) The issue is also not whether lynchings or sexual atrocities can be visually documented. The issue is rather, given the fact that someone must be lynched to make a picture of a lynching, how is a picture of a lynching regarded, socially and legally. If it takes a lynching to show a lynching, what is the social difference, really, between seeing a lynching and seeing a picture of one? What would it say about the seriousness with which society regards lynching if actual lynching is illegal but pictures of actual lynching are protected and highly profitable and defended as a form of freedom and a constitutional right? What would it say about the seriousness and effectiveness of laws against lynching if people paid good money to see it and the law looked the other way, so long as they saw it in mass-produced form? What would it say about one's status if the society permits one to be hung from trees and calls it entertainment-calls it what it is to those who enjoy it, rather than what it is to those to whom it is done?

Courts have often sided with those who would lose power if equality were taken seriously. One way courts have done this is by invalidating effective measures against discrimination by calling them discrimination in reverse, or reverse discrimination. The Court of Appeals did exactly this in its decision in the legal challenge to the Ordinance: it called legislative action against discrimination itself a form of discrimination. The court thus actively supported discrimination by blocking legal action against it. In other words, the court acted as if state-sanctioned sex inequality were state neutrality on the subject by holding that allowing citizens to pursue sex equality was state-sanctioned discrimination. In this way, acting against discrimination was made indistinguishable from discrimination itself, and inequality was made indistinguishable from equality as a state policy goal. Although the court did not for a moment question that pornography is a form of sex discrimination, it seemed not to understand that in protecting the pornographers, the court embraced admitted sex discrimination as state policy. In perhaps its final conceptual perversity, the Seventh Circuit elevated the law against obscenity-and obscenity is nothing but an idea that depends on moral and value judgments, which themselves depend entirely on point of view-as a standard by which to find the Ordinance, which restricts bigoted acts, unconstitutional as a form of "thought control."

Yes, pornography is propaganda; yes, it is an expression of male ideology; yes, it is hate literature; yes, it is the documentation of a crime; yes, it is an argument for sexual fascism; yes, it is a symbol, a representation, an artifact, a symptom of male dominance; yes, it conveys ideas as any systematic social practice does. It is also often immoral, tasteless, ugly, and boring. But none of this is what pornography distinctively is, how it works, what is particularly harmful about it, or why we have to stop it. Was the evil of the Holocaust what it said about Jews? Was ending it a form of thought control? If Dachau had been required to make anti-Semitic propaganda, should it have been protected speech? Pornography is a systematic act against women on every level of its social existence. It takes a rape culture to require and permit it. It takes acts against women to make it; selling it is a series of acts (transactions) that provide the incentive to make it and mass-produce the abuse; consuming it is an act against women and spawns more acts that make many more women's actual lives dangerous, meaningless, and unequal. It is therefore an act against women to protect and defend it.

Women, it is said, should be loyal to pornography because our freedom and equality depend on protecting it. This is because pornography, it is said, is freedom and equality, so doing anything about it is repression, fascism, and censorship. In practice, this has meant that whatever the pornographers do is "speech," and whatever those who oppose them do is censorship. Actually, this is a matter of point of view. Whoever takes the point of view that pornography is "speech" takes the officially protected viewpoint, hence is uttering "speech" that is protected as such.

Whoever takes the point of view that pornography is a practice of censorship and silence and institutionalized deprivation of liberty is, in this view, practicing censorship, even if only words are used. This point of view can be silenced in the name of speech. Women screaming in pain in a pornography film is "speech." Women screaming in the audiences to express their pain and dissent is breach of the peace and interferes with "speech." "Snuff" is "speech." Demonstrators who use strong language to protest "Snuff" are arrested for obscenity. When Penthouse hangs Asian women from trees, it is "speech." When antipornography activist Nikki Craft leaflets with the same photographs in protest, she is threatened with arrest for public lewdness. When B. Dalton sells pornography in a shopping mall displayed at a child's eye level, that is "speech." When Nikki Craft holds up the same pornography in the same shopping mall in protest, she is detained in a back room of B. Dalton's by the police for contributing to the delinquency of minors. When pornographers make pornography of feminists, that is "speech." When publishers refuse to publish feminist work, saying that publishing Andrea Dworkin is bad for freedom of speech because of her opposition to pornography, that is the way freedom of "speech" is supposed to work. Nor could she get an article published discussing these examples.

When the Attorney General's Commission on Pornography wrote a letter to solicit information on pornography sales, the Commission was sued by pornographers saying that these words were intimidating, and a court enjoined publication of the results. Now, the pornographers censor the government in the name of freedom of speech, while those who speak of women's rights against pornographers are called censors for trying to do something about it.

When the Seventh Circuit's decision on the constitutionality of the Ordinance was appealed to the U.S. supreme Court, a new kind of silence enveloped it: the silence of the powerful. The Court disposed of the case by a procedure called summary affirmance, meaning no written briefs, no oral arguments, and no reasons. This procedure, designed primarily for cases that prior law has clearly resolved, was highly unusual for the Court to use in this sort of case, one in which a federal Court of Appeals invalidated a local ordinance on a U.S. constitutional ground on a theory the Supreme Court had never heard before. The Supreme Court (with three dissents) summarily affirmed the Court of Appeals decision, bare of supporting authority, presumably because there is none. In this arrogant way, the Indianapolis Ordinance was in effect found unconstitutional.

Technically, a summary affirmance upholds only the result and whatever is essential to it; no view is expressed on the reasoning the court below used. So there is no way of knowing what the Supreme Court really thinks about the civil-rights approach, because it said nothing about its reasons. The Seventh Circuit's decision remains a precedent until another case on the Ordinance is heard. But the Supreme Court could take another case on the Ordinance at any time without being bound either by the logic of the Seventh Circuit decision or by its own prior summary action. So the ultimate constitutionality of the civil-rights approach has not yet been determined. The current barriers to its reenactment and use are political, not legal-or, rather, they are politics disguised as law.

The truth is, a revised Ordinance taking the civil-rights approach could be passed today and ultimately receive new scrutiny before the Supreme Court. In a test of the constitutionality of such an Ordinance-perhaps in a real case brought by a victim of pornography, rather than by a media plaintiff-the role of the Seventh Circuit decision and the Supreme Court's summary affirmance would be one matter to be argued. The summary affirmance would not mean that such an argument could not happen or that its outcome was already decided in advance. If this was any problem other than pornography, any problem power wanted to solve-especially given the virtual invitation to try again provided by the three Supreme Court dissents-state, local, and federal legislators and their legal counsel would be falling all over themselves and each other to be the first to devise an antipornography civil-rights ordinance that would solve the problem yet be found constitutional. Instead, in a capitulation to authority, it is widely supposed that nothing more can be done. Media lies have been widely believed that because of the summary affirmance, the civil-rights approach to pornography is constitutionally dead. As with slavery and segregation, which the U.S. Supreme Court once held constitutional, what the courts say is accepted and the truth is not. And, as with the pornography itself, what the media says is believed and the truth is not.

Where we stand now is that protecting and defending pornography is the official state position. The courts have decided that an entire class of women will be treated in these ways so that others can have what they call freedom of speech: freedom meaning free access to women's bodies, free use of women's lives, speech meaning women's bodies as a medium for those others' expression. As Black people were once white men's property under the U.S. Constitution, women are now men's "speech." It seems that our pain, humiliation, torture, and use is something they want to say.

The complicity of law with the harm of pornography to women has now gone a full step beyond tacit inaction, bungling, waffling, evasion, ineptitude, deceptiveness, or lack of will. Now, the law has expressly lined up on the side of the pornographers; now, the law has affirmatively decided that pornography is more important than the women admittedly harmed. This the law has done. This the law can and must undo.