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The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General's Commission on Pornography Report
Published online by Cambridge University Press: 20 November 2018
Extract
Pornography is notoriously hard to define, yet like the Supreme Court all of us think we know it when we see it. Even if we cannot define pornography, we can say if something is or is not pornographic. How do we do this? More precisely, what is it that we think we know, when we think that something is or is not pornographic? We make these experiential determinations by reference to what I call our “traditional conception” of pornography. This conception is not based on definitions of pornography, for we have none. Rather, the traditional conception consists of broadly stated and widely believed inductive generalizations, which are in turn based on a multitude of common and shared experiences with pornographic materials. Recently—in the last ten years or so—that traditional conception of pornography has begun to change. But it is changing slowly. It still dominates our sense of what is and is not pornographic and our arguments about the value of pornography.
- Type
- Symposium on the Attorney General's Commission on Pornography
- Information
- American Bar Foundation Research Journal , Volume 12 , Issue 4: Special Review Issue , Fall 1987 , pp. 681 - 711
- Copyright
- Copyright © American Bar Foundation, 1987
References
1 See, e.g., Schauer, , Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L. J. 899 (1979).Google Scholar
2 Thus, Barry Lynn defines pornography as “written or visual material produced commercially to arouse sexual feelings or fantasies.” Lynn, “Civil Rights” Ordinances and the Attorney General's Commission: New Developments in Pornography Regulation 21 Harv. C.R.-C.L. L. Rev. 27, 30 n.10 (1986) (emphasis added). Anti-pornography feminist Catherine MacKinnon claims that pornography is an “$8 billion a year industry.” MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 31 (1985).Google Scholar
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4 As one commentator puts it, pornography promotes a vision of “pornotopia,” a view of sexual conduct implying “easy freedom without consequences, a fantasy of timelessly repetitive indulgence.” Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 81 (1974).Google Scholar
Professor Van Den Haag describes pornography's message in this way: By de-individualizing and dehumanizing sexual acts, which thus become impersonal, pornography reduces or removes the empathy and the mutual identification which restrain us from treating each other merely as objects or means. This empathy is an individual barrier to nonconsensual acts, such as rape, torture, and assaultive crime in general. Without such empathy, we are not humane to each other. … Pornography, thus, is antihuman and antisocial. If we do not feel empathy, then others are easily relegated beyond the pale, to become merely means. By inviting us to reduce others to sources of sensation, pornography destroys the psychological bonds that bind society. … Pornography, in exalting the instrumental use we can make of each other, depreciates and destroys the emotions that go with devotion to or consideration for others, as ends. Yet love and affection are precious—and precarious—heritages of our civilization and their socialized modes, compassion and empathy, are indispensable to it.Google Scholar
Van Den Haag, Censorship: For and Against, 143, 146 (1971).Google Scholar
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6 The liberal view begins, of course, with John Stuart Mill's essay On Liberty. For a modern restatement and defense of the liberal argument against all forms of legislated morality, including anti-prostitution and anti-homosexuality legislation as well as obscenity law, see H.L.A. Hart, Law, Liberty and Morality (1962). For related arguments, see R. Dworkin, Do we Have a Right to Pornography?, in A Matter of Principle (1985) and R. Dworkin, Liberty and Moralism, in Taking Rights Seriously 256–258 (1979).Google Scholar
7 The traditional conservative argument is nicely summarized in Dworkin, Liberty and Moralism, supra note 6, at 256–258.Google Scholar
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10 Attorney General's Commission on Pornography, Final Report, Victimization, 767–837 (1986).Google Scholar
11 The Commission's charter defined pornography as a “problem,” thus begging the question. Report, The Commission and Its Mandate, Id., at 215–218.Google Scholar
According to Lynn, the Attorney General's Commission heard from “a few witnesses who suggested the removal of all restraints on adult access to sexually-oriented material,” but that “those who advocate bolstering first amendment protection for sexually-oriented speech have not found the Commission to be a receptive audience.”Supra note 2, at 47–48. Based on Hearing Transcripts, Lynn reports that the Commission heard from Barry Lynn and Isabelle Prizler of the ACLU, Burton Joseph of the Playboy Foundation, and Nan Hunter of the Feminist Anti-Censorship Taskforce. Id., at 47, note 74. Their testimony is not, however, reflected in the Commission's final report.Google Scholar
The report acknowledges that its findings may be skewed by the fact that people who value, use, and enjoy pornography may have been deterred from appearing because of its illegality. Report, supra note 10, at 221.Google Scholar
12 For example, while the report contains a chapter entitled The Question of Harms, Id., at 299–353, there is no chapter entitled Benefits, nor is there any discussion, or even recognition, throughout the report that some pornography may benefit some people some of the time.Google Scholar
13 This comes through most strongly in the report's discussion of harms, Id., at 9–18, which I discuss infra. See also the report's discussion of the Civil Rights Approach to Pornography, in which the Commission approves the general idea of using private civil rights as an enforcement mechanism but limits the concept of “pornography” to its traditional obscenity-based definition, instead of adopting the “subordination” approach of the feminist ordinance. Id., at 391.Google Scholar
14 Gordon, Variety: The Pleasure in Looking, in Pleasure and Danger, supra note 9, at 194.Google Scholar
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20 See, in addition to the authorities infra note 9, FACT Amicus Brief, American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985).Google Scholar
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22 See, e.g., Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in Pleasure and Danger, Id., at 267.Google Scholar
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30 Although anti-censorship feminists are in danger of reducing their position to simple libertarianism, as anti-pornography feminists are in danger of reducing theirs to a rigid sexual authoritarianism, nevertheless, anti-censorship feminism is not liberalism, and anti-pornography feminism is not conservatism. As Rosemarie Tong has argued:.Google Scholar
Even if the feminist anti-censorship movement is in danger of reducing itself into a crude libertarianism in which any kind of sex is “good” provided that I choose it, in its less extreme form it is a recognition and celebration of the possibility of sexual diversity. Likewise, even if the feminist anti-pornography movement is in danger of setting itself up as the sole authority on what kind of sex shall count as the only good kind of sex, in its more thoughtful moments we see in it the beginnings both of a description of egalitarian sexual relations and an argument for why such relations are better than non-egalitarian ones.
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31 See Richards, Free Speech, and Van den Haag, Censorship: For and Against, supra note 4.Google Scholar
32 See MacKinnon, supra note 2, and Dworkin, supra note 8.Google Scholar
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34 See notes 4 to 9 and accompanying text infra.Google Scholar
35 See, e.g., Lynn, supra note 2, and Emerson, , Pornography and the First Amendment: A Reply to Professor MacKinnon , 3 Yale L. & Pol'y Rev. 130 (1984).Google Scholar
36 MacKinnon, supra note 8, at 161.Google Scholar
37 See, e.g., Hollibaugh, Desire for the Future: Radical Hope in Passion and Pleasure; Dimen, Politically Correct? Politically Incorrect?; Allison, Public Silence, Private Terror, Pleasure and Danger (1093); and P. Callifia, Sapphistry (1981).Google Scholar
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39 See Ward v. Illinois, 431 U.S. 767 (1977).Google Scholar
40 See Report, at 74, “No place for S/M pornographic materials deemed legally obscene.” Similarly, one commissioner describes a “woman kneeling submissively in the act of fellatio” as “gruesome,” and as on par with “women being penetrated by broom handles, smeared with feces, urinated upon and covered in blood.”Google Scholar
41 MacKinnon, supra note 8.Google Scholar
42 Compare the feminist argument in the Harms chapter with the individual commissioners' statements, at 29–30, 42–43, 45, 51, 82–83, 95–98, 106–110, 117–134, 339.Google Scholar
43 Vance, The Meese Commission on the Road, The Nation 65 (Aug. 2, 1986).Google Scholar
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46 Lynn, Regulation, supra note 2, at 74–76.Google Scholar
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