Feminists must juggle pornography with free speech

Tuesday, April 30, 1996

Individual and group rights clash in inevitable, but
rectifiable, conflict

The situation of women is not really like anything else.

­ Catherine MacKinnon, "Feminism Unmodified"

Last Friday my significant other ­ let’s call him Paul
­ went on a weekend excursion with the boys. It was a bachelor
party, so you can guess their destination: Las Vegas. Decoded, that
means lots of betting, lots of booze and probably a porno flick or
two. Which is okay, I guess, to the extent that these trips are a
part of American culture ­ an institution, a tradition, a
masculine rite (right?) of passage, if you will.

Now, I’m not the type to put leashes on people, probably because
I insist on so much freedom for myself. So my attitude as he drove
off with his buddies was: "Have fun, don’t lose too much, see ya
later, bye!" Yet as I stood there smiling and waving goodbye, I
realized how uncomfortable I have become with one element of that
tradition: the pornography.

But not because I don’t want Paul to watch it. He’s an adult; he
can do as he pleases. And besides, I’m sure it can be pretty
provocative stuff ­ the perfect elixir to help free those men
from their boring weekday inhibitions. Sounds fun, huh? Well, not
exactly, for as we all know, what is good for the goose is not
always good for the gander.

Which leads me, albeit by way of silly cliche, to the source of
my discomfort which is perhaps best expressed by the contemporary
feminist critique of pornography, which contends that pornography
is an institution of gender inequality which not only causes
discreet acts of sexual violence against individual women on a
one-at-a-time basis, but against all women as members of a group.
That their critique has been both controversial and relatively
ineffective is hardly surprising given the fact that pornography is
a multi-billion dollar, male-driven industry which caters mostly to
men in what is ­ and always has been ­ a man’s world.

But the forces of patriarchy and capitalism are only part of the
problem, for other equally complex ideological issues arise when
the specific demands of feminism collide with the underlying
principles of our nation’s system of freedom of expression. Or so
says Professor Robert Post of UC Berkeley’s Boalt Hall School of
Law who argues, in an important California Law Review article, that
it is out of this tension that a crucial constitutional issue
emerges: What type of values do we want the First Amendment to
protect?

The way we answer that question is important, for it helps
reveal what is at stake in the feminist campaign. To show us why
this is so, Post examines three separate means by which a legal
order might be structured in a culturally diverse society such as
ours ­ assimilationism, which seeks social uniformity by
imposing on all individuals the values of a dominant culture;
pluralism, which promotes social diversity by protecting the values
of competing cultural groups; and individualism, which exalts the
rights of individuals over the values of any one cultural
group.

What do these definitions have to do with the feminist’s attempt
to suppress pornography? Everything, if you agree, as I do, with
Professor Post, who contends that part of the reason why the
feminist critique is so controversial is because it represents a
pluralist challenge (which emphasizes the rights of one group) to
the First Amendment’s historic commitment to individualism (which
stresses the rights of the individual).

The feminist demand that the law acknowledge women’s outrage
over the damage inflicted by pornography is not problematic in and
of itself or because it is an illogical request. Rather, the
problem, as Professor Post sees it, arises because this outrage
stems from the "characteristics of a specific group" (read: women)
and not from a "general audience composed of undifferentiated
individuals."

The question thus becomes: What type of society do we want to
use the First Amendment to create? Do we want to use it to
construct a society that places a premium on the rights of
competing cultural groups or do we want to use it to create a
society that values the rights of the individual over those of any
one particular group?

To frame the issue in a more personal way, do I want the First
Amendment to protect the rights of all women (including myself) to
be free from the injurious effects of pornography, or do I want it
to protect my own personal right to view pornography if I so
desire? Both rights are important. Both deserve protection. But the
feminists’ position does not allow us to have it both ways. Theirs
is a zero sum game; only one side can win ­ pluralism or
individualism. And therein lies the dilemma.

But that is not the only problem, for other difficulties arise
when one considers the evidence feminists use to support their
argument. The contention that pornography causes discreet acts of
sexual violence against individual women stands up fine
theoretically until one realizes that the strength of this
assertion depends entirely upon the empirical evidence used to
support it.

Though Post is careful to point out that such evidence may show
that pornography contributed to "attitudinal changes" in men which
in turn made them more likely to countenance crimes of sexual
violence against women, he predicts that the evidence presently
available is not likely to establish direct causation. To withstand
constitutional scrutiny, the evidence must show that the
"relationship between such attitudinal changes and subsequent
behavior constitutes a sufficiently close causal nexus as to
justify the regulation of pornography." That’s a difficult standard
to meet.

Which is actually a good thing, considering the enormous powers
of censorship the government would inherit if it were given the
authority to criminalize any speech that tended to induce in a
group unfavorable attitudinal changes in relation to future
conduct. Such a result, as Professor Post duly reminds us, is
"profoundly at odds with the basic first amendment principle that
seeks to circumscribe broad government discretion to curtail
speech."

So where does that leave us? At an interpretive impasse, I
guess. But Post’s analysis was not meant to provide a ready-made
solution to the problem. Rather, it was intended to "propose a
tentative framework" within which feminists might try to further
refine their argument.

Professor Post concludes that the ultimate success of the
feminists’ quest to suppress pornography depends upon whether they
can articulate a convincing vision of the First Amendment which is
consistent with pluralist values. A rigorous prescription, to be
sure, but one certainly well worth pursuing.

As for Paul … well, he came home Sunday night, looking
haggard, bedraggled and worn. Apparently, the bachelors chose not
to watch the pornos. "Too busy," he said, "just golfing and
gambling." It was a small concession, I know, but a concession
nonetheless, and I seized it immediately as a sign of things to
come. Porno-free bachelor parties today; tomorrow, the world.

Evans is an 1989 alumna of UCLA and graduate student in history
at UC Berkeley, and works in the UCLA history department this
quarter. Her column appears on alternate Wednesdays.