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Why the ACLU opposes censorship of pornography
WHY THE ACLU OPPOSES
CENSORSHIP OF "PORNOGRAPHY"
Sexually explicit material, in literature, art, film, photography and
music, has always been controversial in the United States, from James
Joyce's Ulysses -- which was banned in the 1930s -- to rap music performed
by 2 Live Crew, a target of prosecution in the 1990s. Traditionally,
political conservatives and religious fundamentalists have been the
primary advocates of tight legal restrictions on sexual expression, based
on their view that such expression undermines public morality. In the
late 1970s, however, those traditional voices were joined by a small but
extremely vocal segment of the feminist movement. These women, who do not
by any means speak for all feminists, charge that "pornography" is a major
cause of discrimination and violence against women and should, therefore,
be suppressed.
Although unsupported by any reliable evidence, this theory has been
especially influential on college and law school campuses, leading to
several incidents in which speech and works of art -- including works by
women artists -- have been labeled "pornographic" and censored. Even
classics like Francisco de Goya's painting, The Nude Maja, have been
targeted.
The American Civil Liberties Union has fought censorship from the
time of its founding in 1920. In our early days, we defended sex
educator/activists Margaret Sanger and Mary Ware Dennett against criminal
obscenity charges. Today, we continue to defend the free speech rights of
all expression, including sexual expression. We believe that the
suppression of "pornography" is not only damaging to the First Amendment,
but also impedes the struggle for women's rights.
Here are some answers to questions often asked by the public about
the ACLU's opposition to the suppression of pornography.
IS PORNOGRAPHY PROTECTED BY THE FIRST AMENDMENT?
M-^\ Yes. The First Amendment absolutely forbids the suppression of ideas or
images based on their content alone. Moreover, a basic tenet of U.S.
Supreme Court jurisprudence is that laws must be "viewpoint" neutral. And
even though the Court has carved out a narrow exception to the First
Amendment for a category of sexually explicit material deemed "legally
obscene," the term "pornography" has no legal significance at all.
The dictionary defines pornography simply as writing or visual images
that are "intended to arouse sexual desire." Pro-censorship feminists
have greatly expanded the common meaning of pornography, redefining it as
"the sexually explicit subordination of women through pictures and/or
words." They then define "subordination" as the depiction of women "in
postures or positions of sexual submission, servility, or display." These
extraordinarily subjective interpretations would apply to everything from
religious imagery to news accounts of mass rape in Bosnia. Because the
Supreme Court has consistently ruled that the government may not make
content-based rules limiting free speech, material that depicts "the
subordination of women" enjoys the same First Amendment protection
afforded material that depicts women in other ways. Were that not so, the
government could suppress any ideas it didn't like, rendering the First
Amendment meaningless.
IS PORNOGRAPHY A FORM OF DISCRIMINATION AGAINST WOMEN?
Sexually explicit words and images aimed at arousing sexual desire --
pornography -- constitute a form of expression. Pro-censorship feminists
seek legal recognition of their counter-claim that such images are a form
of sex discrimination because they reinforce stereotypes of women as
inferior. The architects of the latter concept are law professor
Catharine MacKinnon and writer Andrea Dworkin, who drafted a model law
that would permit any woman claiming to have been harmed by pornography to
bring a civil lawsuit for monetary damages, and to halt the production,
distribution and sale of pornographic works.
The model law has been considered in numerous locales around the
country, but when it was adopted by the Indianapolis City Council in 1984
it collapsed under a legal challenge brought by a coalition of booksellers
and publishers and supported by the ACLU as a friend-of-the-court.
Leaving no doubt that the law targeted expression, federal Judge Sara
Barker wrote: "To deny free speech in order to engineer social change in
the name of accomplishing a greater good for one sector of our society
erodes the freedoms of all and... threatens tyranny and injustice for
those subjected to the rule of such laws."
The ACLU's fears about the censorious effects of the
MacKinnon/Dworkin law have been borne out in Canada, where the Canadian
Supreme Court incorporated that law's definition of pornography into a
1992 obscenity ruling. Since then, more than half of all feminist
bookstores in Canada have had materials confiscated or the sales of some
materials suspended by the government. The most susceptible to repression
have been stores that specialize in lesbian and gay writings.
WOULDN'T RIDDING SOCIETY OF PORNOGRAPHY REDUCE SEXISM AND VIOLENCE AGAINST
WOMEN?
Although pro-censorship feminists base their efforts on the assumption
that pornography causes violence against women, such a causal relationship
has never been established. The National Research Council's Panel on
Understanding and Preventing Violence concluded, in a 1993 survey of
laboratory studies, that "demonstrated empirical links between pornography
and sex crimes in general are weak or absent."
Correlational studies are similarly inconclusive, revealing no
consistent correlations between the availability of pornography in various
communities or countries and sexual offense rates. If anything, studies
suggest that a greater availability of pornography seems to correlate with
higher indices of sexual equality. Women in Sweden, with its highly
permissive attitudes toward sexual expression, are much safer and have
more civil rights than women in Singapore, where restrictions on
pornography are very tight.
DOESN'T PORNOGRAPHY EXPLOIT THE WOMEN WHO PARTICIPATE IN ITS
PRODUCTION?
The ACLU supports the aggressive enforcement of already existing civil
and criminal laws to protect women from sexual violence and coercion in
the process of making sexually oriented material. At the same time, we
oppose the notion, advanced by anti-pornography feminists, that women can
never make free, voluntary choices to participate in the production of
pornography, and that they are always coerced, whether they realize it or
not. This infantilization of women denies them the freedom of choice to
engage in otherwise legal activities.
There are cases of women who say they were coerced into working in
the pornography industry, the most well known being "Linda Lovelace," who
starred in the movie "Deep Throat." But the majority of women who pose
for sexually explicit material or act in pornographic films do so
voluntarily. Indeed, these women resent attempts to outlaw their chosen
occupation. As one actress exclaimed, "For them to tell me I can't make
films about naked men and women making love is a grotesque violation of my
civil rights."
WHY DOES THE ACLU SAY THAT ANTI-PORNOGRAPHY LAWS HARM WOMEN'S STRUGGLE FOR
FULL LEGAL EQUALITY?
A core idea of the anti-pornography movement is the proposition that sex
per se degrades women (although not men). Even consensual, nonviolent
sex, according to MacKinnon and Dworkin, is an evil from which women --
like children -- must be protected. Such thinking is a throwback to the
archaic stereotypes of the 19th century that formed the basis for enacting
laws to "protect" women from vulgar language (and from practicing law or
sitting on juries lest they be subjected to such language). Paternalistic
legislation such as that advocated by MacKinnon and Dworkin has always
functioned to prevent women from achieving full legal equality.
Furthermore, history teaches that censorship is a dangerous weapon in
the hands of government. Inevitably, it is used against those who want to
change society, be they feminists, civil rights demonstrators or gay
liberationists. Obscenity laws, especially, have been used to suppress
information and art dealing with female sexuality and reproduction. Thus,
the growing influence of anti-pornography feminism threatens to undermine
long- established principles of free speech.
Finally, the focus on sexual imagery and symbols diverts attention
from the real causes of discrimination and violence against women, as well
as from problems such as unequal pay, lack of affordable childcare and
sexual harassment in the workplace.
ACLU Department of Public Education December 11, 1994
=============================================================
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