For some years now, Andrea Dworkin and Catharine MacKinnon, the Laurel and Hardy of the feminist left, have been pushing the oxymoron of a "civil rights anti-pornography" ordinance. They got such an ordinance signed into law in Indianapolis, and despite defeats in the courts, similar measures continued to crop up across the country: in Cambridge, Massachusetts, in the city and county of Los Angeles and elsewhere. Civil libertarians wrote the measure off as dead after the Supreme Court refused to hear an appeal of the law's invalidation. Yet up from the coffin, by a sort of elan mortel, a similar measure was passed (by initiative) as lately as 1988 in Bellingham, Washington, although it was clobbered in federal court the following year. However, since the Supreme Court never heard the case on its merits, and considering the changing makeup of the Court, there is no telling what new holes will be discovered in the Swiss cheese of the Constitution.
It goes without saying that the repeated courtroom defeats of this excursion into darkest Orwell caused neither Dworkin or MacKinnon to cease promoting the ideas behind it. Why should we expect defeat or indignity to stop them, when even Richard Nixon won't go away? A series of law schools including Yale and UCLA did implicitly ask MacKinnon to go away, providing her with visiting professorships, but not offering her tenure, turning her into a sort of Flying Dutchman of book burning. When the music stopped, remarkably, she did get a tenured position, offered by the University of Michigan.
There is one context in which "censorship as a civil right" is not surreal, and that is the rhetoric of the modern civil rights movement, which may have guaranteed an eventual collision with civil liberties, in particular with the First Amendment.
These issues came to a boil in Los Angeles just as I was completing the transition from gaderpillar to full-fledged gadfly. In earlier years, I was only vaguely aware that I could go and participate in the politic circus so dryly reported in the Los Angeles Times; in later years I entered the circus only via newspaper and magazine articles, taking the cynical attitude toward personal participation in the circus, "Forget it, Jake. It's Toontown."
And sure enough, L.A. City Hall was: Bible-thumping politicians, Constitution-trashing lawyers, political gadflies, publicity-hungry careerists, sensationalist reporters ... it's Toontown, all right. You wouldn't want to live there...but it's a fun place to visit.
Freedom of speech is a truce. In exchange for deferring to minorities' right to speak on an issue, the majority hopes to be respected when it is in the minority. This is like an "I'll scratch your back and you scratch mine" pact with a tiger.
Suppose, for example, a conservative agrees that liberty is a good thing, and that he will tolerate yours if you tolerate his. Suddenly it will turn out that you must tolerate all of his doings, whereas whatever you desire to do is not "liberty" but "license," which he will not tolerate, such as the display of Robert Mapplethorpe's photographs of calla lilies, which are suggestive to the conservative of "deviate sexual intercourse." You will find that very little does not suggest this to the conservative.
Conversely, suppose a liberal agrees that liberty is a good thing, and he will tolerate yours if you tolerate his. Suddenly it will turn out that you must tolerate all of his doings, whereas whatever you desire to do is not "liberty" but "discrimination," which he will not tolerate, such as high school library stocking books like Mark Twain's Huckleberry Finn, which are suggestive to the liberal of "racism" or "sexism." You will find that very little does not suggest these to the liberal.
What the conservative and liberal approaches have in common is the premise that there is or should be no difference between law and morality; that is, what one ought to do, one ought to be forced to do.
A veneer of legitimacy is draped over this by using threats first, but force is always the final argument -- lethal force, if the citizen resists sufficiently.
The modern civil rights movement began with goals which united liberal and civil libertarian: the eradication of Jim Crow laws, which used the state to keep blacks subordinated -- while continuing, of course, to tax blacks for this very purpose, thus adding extortion to injury.
Civil libertarians parted company with liberals over the Civil Rights Act of 1964, which attempted to eradicate private discrimination. Now, I don't have any problem with outlawing discrimination by pseudo-private operations, like utility companies and defense contractors; they receive tax dollars and are so heavily imbued with state action that the Constitution should be read as requiring them not to discriminate irrationally. But in order to ban truly private discrimination, Congress -- and the Supreme Court -- had to blur the crucial distinction between state and private action, decreeing privately owned businesses such as movie theaters to be "places of public accommodation." What this meant, unfortunately, was that if theater owners could not keep out blacks (or whites), then nei- ther could they keep out vice cops.
It was not long before the Right used the liberals' precedent as a sword against the First Amendment. In 1973, in Paris Adult Theater I vs. Slayton, Warren Burger wrote a censorship-affirming decision for the Supreme Court:
"This Court has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are `private' for the purpose of civil rights litigation and civil rights statutes. See ... Heart of Atlanta Motel Inc. vs. United States.... The Civil Rights Act of 1964 specifically defines motion-picture houses and theaters as places of 'public accommo- dation' covered by the Act as operations affecting commerce.... Nothing in this Court's decisions intimates that there is any ... privacy right ... to watch obscene movies in places of public accommodation."
The theater owners contended that their business involved merely a transaction between "consenting adults," but their argument did not avail. Liberals considered it a coup to make commercial enterprises into second class citizens, taking away the right to freedom of (and from) association, which is still conceded to solitary individuals.
But publishers are commercial enterprises, too.
Once you declare total war on the white whale of discrimination, there is no clear place to stop short of sinking the First Amendment. If you can't refuse to admit or hire blacks or women, you can't permit your employees -- or yourself -- to make racist or sexist remarks -- or even jokes. You've got to take down those Hustler cartoons from the wall of your auto body shop, even though a federal appeals court told Andrea Dworkin she couldn't sue over them....
You've got to take Huckleberry Finn out of the school library for alleged racism or The Merchant of Venice for supposed anti-Semitism. Or perhaps you pass an ordinance allowing any black person or Jew to sue the publishers, distributors, and retailers of Huckleberry Finn and The Merchant of Venice, respectively. This is what Andrea Dworkin and Catharine MacKinnon proposed to allow women to do with respect to "pornography."
The 1984ish notion of "censorship as a civil right" did not even wait until 1984 to head its ugly rear into the public eye.
Civil libertarian and Harvard law professor Alan Dershowitz describes two debates he had in 1980 on the subject of censorship. The first was with Andrea Dworkin, who "sprinkles her writing generously with four-letter words and long, explicit excerpts to illustrate the evils of pornography," of which she advocates the total destruction, by violence, if necessary. As a further indication of her mind set, she has described pornography as "genocide," indulging in the sort of exaggerated rhetoric which desensitizes one to lexicide, the murder of words. Dworkin has also written that it is acceptable for women to have sex with men as long as the man's penis isn't erect -- this although, given her unkemptness and corpulence, her only chance of impalement by anything long and hard would be in an encounter with the harpoon of a nearsighted Eskimo.
In debating her, Dershowitz said -- over feminist booing and hissing -- "what I support is freedom of choice about pornography. I informed the audience that a recent law in Iran prohibiting pornography also required all women to keep their faces covered. I reminded them that efforts by the Moral Majority to `clean up' television included feminist programs within the definition of pornography. I quoted Gloria Steinem to the effect that `the long history of anti-obscenity laws makes it clear that such laws are most often invoked against political and lifestyle dissidents.' " The Moral Majority would be the enforcers of such laws, said Dershowitz, and "among the first books they would want to ban, are the writings of Andrea Dworkin." Dworkin scoffed.
In the other debate, with the Reverend Tom Michel, leader of the Moral Majority in New England, Dershowitz asked the Reverend whether his organization would, if it had the power, ban Andrea Dworkin's writings. "He answered without hesitation: `We would most certainly ban such ungodly writings. It is not necessary to use pornography to illustrate its evils. It is only necessary to read the Bible.' " Dershowitz reminded the Reverend that the Bible has been among the most censored books in the history of the world.
In 1983, the city of Minneapolis was trying to devise zoning ordinances to regulate adult bookstores and massage parlors. Andrea Dworkin and Catharine MacKinnon, a professor of constitutional law, argued against the proposed ordinance as condoning the existence of pornography, and suggested, instead, an ordinance declaring pornography to be a violation of women's civil rights. The city hired MacKinnon as a consultant -- at $70 an hour -- to draft such an ordinance. (Her assistants, notes writer Pat Califia, "were paid $5.40 an hour, which is enough to make any woman look for a job in the sex industry.")
Consider these excerpts from their "model civil rights law" that resulted:
Pornography is sex discrimination. It exists in [PLACE], posing a substantial threat to the health, safety, peace, welfare, and equality of citizens in the community.... Pornography is a systematic practice of exploitation and subordination based on sex that differentially harms women. The harm of pornography includes dehumanization, sexual exploitation, forced sex, forced prostitution.... The bigotry and contempt it promotes, with the acts of aggression it fosters ... undermine women's equal exercise of rights to speech and action guaranteed to all citizens under the Constitution....
1. Coercion into pornography: It shall be sex discrimination to coerce ... any person ... into performing for pornography. The maker(s), seller(s), exhibitor(s), and/or distributor(s) ... may be sued for damages and for an injunction, including to eliminate the product(s) of the performance(s) from the public view. Proof of one or more of the following ... shall not, without more, negate a finding of coercion: ... (xi) that the person has attained the age of majority; ... or (ix) that the person knew that the purpose of the acts or events in question was to make pornography; or (x) that the person ... appeared to cooperate actively...; or (xi) that the person signed a contract...; or (xi) that no physical force, threats, or weapons were used...; or (xii) that the person was paid or otherwise compensated.
2. Trafficking in pornography: It shall be sex discrimination to produce, sell, exhibit, or distribute pornography, including through private clubs.... Any woman has a claim hereunder as a woman acting against the subordination of women.
3. Forcing pornography on a person ... in any place of employment, education, home, or public place....
4. Assault or physical attack due to pornography: ... The perpetrator of the assault or attack may be sued.... The maker(s), seller(s), exhibitor(s), and/or distributor(s) may also be sued for damages and for an injunction against the specific pornography's further exhibition, distribution, or sale."
The Minneapolis city council passed the ordinance. The mayor vetoed it, as he did a later version on July 13, 1984, but with the proviso that he would not do so again if a similar ordinance in Indianapolis fared well in federal court. In early 1984, right-wingers in Indianapolis, including William Hudnut (the city's mayor and a Presbyterian minister), invited the intellectual, respectable-looking MacKinnon to their conservative city so they too could have one of them there newfangled book burning ordinances. The unkempt, rabble-rousing Dworkin was wisely left behind.
MacKinnon produced an ordinance and testified as to its merits, going so far as to describe Indianapolis as "a place that takes seriously the rights of women and the rights of all people...." This distortion by an outsider outraged local feminists. It also betrayed MacKinnon's oblivion to the fact that her supporters in the police department were continuing their three-year campaign of videotaping and beating of gay men in the city's downtown.
After MacKinnon was whisked out of the way by the right-wing councilwoman who organized the logistics of testimony, a group of fundamentalists were ushered in to complain of "unnatural acts" and "sodomy," and to pressure the Republicans into enacting the legislation. The vote was strictly along party lines: Republicans, 24, in favor; Democrats, 5, against. On May l, 1984, the mayor signed the bill into law.
The same day, a coalition of bookstores, video retailers, press trade associations, and a cable television station filed a legal challenge. On November 19, 1984, Federal Judge Sarah Evans Barker (a Reagan appointee, no less) threw out the ordinance as unconstitutional because: it restricted speech protected by the First Amendment; it was overbroad and vague; and, it constituted prior restraint. The city later appealed, at an estimated cost of a quarter of a million dollars.
MacKinnon claims, according to feminist writer Lisa Duggan, that "the coalition that passed the law represented `women who understand what pornography does and means for women in this culture....'" Duggan commented further, "As a description of events in Indianapolis, her statement is profoundly out of touch with political reality."
The claim that she and Dworkin were "in bed with the Right" would get MacKinnon's dander for years to come.
Later in the year, in Suffolk County, New York, the fundamentalists completely took over the "civil rights anti-pornography" concept. The "legislative intent" section of this "civil rights" law stated that pornography causes "sodomy" and "destruction of the family unit," and other conditions "inimical to the public good." The bill was supported by the leftist Women Against Pornography (WAP) until the last moment, when they decided the ordinance was really (horrors!) anti-obscenity rather than anti-pornography. Partly as a result of Judge Barker's decision, the bill was defeated, by 9-8. Supporters said it would be reintroduced if the Indianapolis law were upheld on appeal.
During all this, beginning in 1984, there was agitation for both the city and the county of Los Angeles to enact a Dworkin-MacKinnon style ordinance. Indeed, the villains were already on stage:
Kenny Hahn: one of the five members of L.A. County Board of Supervisors. He is considered a liberal because he is liberal with other people's taxes. An aged graduate of the Foster Brooks school of oratory, he often sounds as if he's been nipping at the old anti-freeze. But when you can make out the words, he's often quoting Scripture.
Michael Antonovich: a bland, blond, Bible-banging ultra-right winger, he was chairman of the state Republican Party and a 46 year old bachelor who wished to impose "family values" on everyone else. (He has since gotten older but no marrieder.)
Gloria Allred: a local Feminist Attorney, best known for her hit-and-run sidewalk press conferences in front of establishments which she threatens to sue for sex discrimination. Her strident voice, straight black hair, and china-doll red lipstick have graced many a local TV news story, on such cutting edge civil rights issues as seeing to it that women in expensive restaurants are not insulted by receiving menus without prices.
Peter Bogdanovich: a guilt-ridden movie director. His guilt is not about his string of flops such as "At Long Last Love," "Nickelodeon," and "Daisy Miller," but rather about his affair with Dorothy Stratten, an erstwhile Playboy centerfold subject. The affair culminated in Stratten's bloody murder by her jealous husband. Bogdanovich has tried to shift the blame to anyone or anything but himself.
The Los Angeles County Commission on the Status of Women: a sort of Greek chorus intoning the dire effects of unchecked pornography, such as discrimination. Members of such commissions are not, as a rule, raving intellectuals, but are appointed because they or their husbands contributed money to the right campaigns. * * *
The piece set forth paragraph upon paragraph of the same unsupported assertions that had been made (almost verbatim) by Dworkin and MacKinnon. For example: "The factual basis for these ordinances is unusually compelling." Well, perhaps by the standards of legislators, they are. "Women have testified to the use of pornography to break their self-esteem, to train them to sexual submission, to intimidate them out of job opportunities...." No details are given to lend credence to these claims. "Pornography robs many women -- some would say every woman (how demure of her to distance herself from these extremists) -- of the opportunity to fully exercise their free speech. Pornography ... becomes the ultimate silencer." Well, Allred and MacKinnon don't seem to be suffering in silence. Indeed, Dworkin wrote an entire book on pornography and she still can't shut up.
In August, 1984, a committee of the Los Angeles City Council began a series of hearings to consider Indianapolis-style legislation. The committee consisted of Art Snyder, somewhat of a liberal; Hal Bernson, a conservative; and chairman Ernani Bernardi, who is difficult to categorize and is usually termed a "maverick." Bernardi spoke in favor of such an ordinance.
In late August, the L.A. Herald-Examiner published my article, "The First Amendment: Void in Los Angeles?" The idea that pornography causes anything at all, I noted, assumed "that men have no more control over their actions than Pavlov's dogs had over their saliva. Since freewill is not easily measured in laboratories, this notion is popular in university psychology departments, but this kind of `psychological science' bears the same relation to science that horseapples do to apples. Much as this (mostly government-funded) `science' neatly justifies government's anti-freedom agenda...human beings have volition. Freewill. Reading may inspire, even incite one to action; it does not cause one's action....Note also that we are so far down the road of substituting pseudo-rights for rights, that the proponents of censoring sexually explicit materials don't even bother to trot out the hoary notion that it might inspire rape, which is at least a real crime. The would-be censors have degenerated to claiming that the offending materials might cause discrimination.
"The anti-feminist tenor of many parts of the Bible unquestionably affects many religious men in this country and inspires them to discriminate against women. Even so, I submit that we should decline to censor the Bible; I invite Bernardi and Allred to submit their opinions on this matter...."
(Here I considered but decided against remarking that it was not, in all likelihood, the perusal of pornography which led the Catholic church to discriminate against women who wished to become priests, bishops, popes, and the like.)
"The proposed ordinance marks our further deterioration from a society of contract -- in which consenting adults are free to consummate whatever personal or economic transaction they see fit -- to a society of status. It would give us a special government-designated superior class of people -- women -- who would have, in effect, the right to censor the reading material of another class: men. This apes the feudal class structure of lords and serfs, with different laws applying to different classes. This, then, is where years of progressive, egalitarian thinking have led us: to the thirteenth century. Imagine where more of it will lead."
I wrapped up with a suggestion that we "leave Bernardi, Allred, and their illegitimate political offspring precisely where they belong -- on the cutting-room floor."
In October, I went down to testify before Bernardi's committee, giving an expanded version of my op-ed piece. Listening to the other speakers was most educational. There were women from rape crisis centers, organizations one would think offhand to be fairly benign examples of your extortion dollars at work. Not so. The women used their tax-provided credentials to tell stories of rapes which were filmed by the rapists. One woman added, "l don't know if those films are being sold." While rapists as a rule are hardly world-class intellects, the extreme implausibility of their selling evidence of their crime did not give this True Believer the slightest pause.
A veteran vice officer testified about how horrible porn was, and here were some films to prove it. He offered to have them transferred to videocassettes for viewing at home by the councilmen, in their choice of Beta or VHS format. A woman from the city attorney's office noted that under the state's Brown Act, all items submitted in testimony must be made available to the public, posing the amusing possibility that, if the ordinance passed, City Hall itself might be the last dirty picture show.
A plump, grandmotherly lesbian got up to testify for the ordinance. She held up posters listing all the demeaning terms to which those of her Double Minority were subjected. The idea that gay people are invariably the first victims of aggrandized state power, seemed never to have occurred to her. Rather than attempt to hobble a vicious pit bull, she wanted to make friends with it.
I introduced myself as a scientific consultant with, among other credentials, a master's degree in mathematics from Caltech. I criticized the pseudo-scientific research used to support the ordinance, such as the claim that if A is correlated with B, then A causes B; whereas the correlation may point to no more than some common cause C. If the use of violent pornography were correlated with violence, it might simply be due to a common cause such as upbringing in a sexually repressive environment.
I quoted Dr. John Money, of Johns Hopkins, who commented on the behaviorists' "monkey see, monkey do" model of human behavior: "Religious education that includes detailed knowledge of crucifixion, complete with graphics and sculptures of Christ bleeding on the cross, does not send children home to play the role of Pontius Pilate or of Roman centurions, crucifying their dolls or playmates."
I went on to explain: "Conservatives tell us that `Guns don't kill people; people kill people'; do they now expect us to believe that erotic literature rapes people? And feminists, who once supported the rights of consenting adults in private, now tell us that no actions are private -- that one's innermost thoughts affect others -- and therefore everything must be con- trolled....
I said that, "Reading no more causes one's action than alcohol causes drunken driving." Unfortunately, Councilman Art Snyder, who had wrecked a city car while driving under the influence, came in late and missed this comment.