Pornography and Civil Rights: A New Day for Women's Equality Read online

  Pornography and Civil Rights: A New Day for Women's Equality

  Catharine A. Mackinnon, Andrea Dworkin

  ANDREA DWORKIN and CATHARINE A. MacKINNON

  Copyright © 1988 by Catharine A. MacKinnon and Andrea Dworkin

  Al rights reserved

  First Printing 1988

  Second Printing 1989

  Copyright © 1988 by Catharine A. MacKinnon and Andrea Dworkin

  Al rights reserved

  Library of Congress card number: 88-190876

  ISBN 0-9621849-0-X

  To al the people who have worked

  to pass the Ordinance into law and

  to al the people who need to use it.

  CONTENTS

  The Meaning of Civil R ights. . ..... . ..... . ..... . . . . . . . . . . 7

  The Nature of C hange........................................................17

  Authority and Resistance.................................................... 19

  Equality as a Social G o a l.................................................... 21

  Pornography and Civil R ig h ts...........................................24

  The O rdinance.....................................................................31

  Statement of Policy........................................................31

  Findings ........................................................................32

  Definition .....................................................................36

  Causes of A c tio n ...........................................................41

  C oercion................................................................. 41

  Trafficking..............................................................44

  F o rce ........................................................................49

  Assault .................................... . .............................50

  Defamation..............................................................51

  Defenses ........................................................................52

  Enforcem ent................................................................. 54

  Civil A ction..............................................................54

  D am ages................................................................. 54

  Injunctions..............................................................55

  Technicalities................................................................. 56

  Severability..............................................................56

  Limitation of Action ..............................................56

  Civil Rights and Speech .................................................... 58

  Questions and Answers........................................................67

  Table of Authorities ...........................................................97

  Appendix A: The Minneapolis O rdinance.......................99

  Appendix B: The Indianapolis O rdinance....................106

  Appendix C: The Cambridge Ordinance ....................133

  Appendix D: The Model O rdinance..............................138

  Pornography and Civil Rights

  5

  The Meaning of Civil Rights

  Civil rights as we understand them are new, not old.

  Equality was not a constitutional principle or legal imperative in 1776. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution were passed in 1865, 1868,

  and 1870, not in 1776. They made slavery illegal, introduced

  the principle of equal protection under the law, and gave Black

  men the vote. The first civil-rights statutes were passed in the

  same period to help undo the effects of slavery. Still, the after-

  math of slavery was segregation. The Supreme Court decided

  to outlaw segregation in public schooling in 1954, not in 1776

  or 1868. Modern civil-rights acts to dismantle segregation and

  prohibit discrimination were passed in 1957, 1960, 1964, and

  1968, not in 1776 or 1868. The Voting Rights Act was passed

  in 1965, not in 1776 or 1868. In the United States for most of

  its history, Black people were virtual y excised from the body

  politic, first through the constitutionally protected slave trade,

  then through constitutionally protected segregation.

  There were two kinds of segregation. De jure segregation

  was mandated by law, enacted by statute, enforced by the police. De facto segregation was separation of the races without the overt sanction of specific laws: Blacks had inferior status,

  worth, and resources.

  In the South, there was de jure segregation. Laws forbade

  Blacks access to public accommodations, including toilets, restaurants, hotels, parks, and stores. Blacks were allowed only restricted access to public transportation. Jobs, housing, and

  education were marginal and often debased in quality. De jure

  segregation effectively kept Blacks from voting. De jure segregation implicitly sanctioned physical violence against Blacks.

  There was widespread police brutality and vigilante terrorism, including lynchings and castrations.

  De jure segregation set the standard for the way Black people

  were treated throughout the United States. The degraded civil

  status and racial inferiority of Blacks were taken for granted. In

  The Meaning of Civil Rights

  7

  practice, segregation in housing and to a somewhat lesser extent

  in education was the rule. The use of the word nigger was commonplace. Unemployment and menial labor ensured that Blacks were economically dispossessed and political y disenfranchised.

  Narcotics, especial y heroin, were dumped on Black urban ghettos, law enforcement collaborating in targeting a Black population for addiction and despair. White contempt for Blacks was expressed openly in humor, in street harassment, in condescension, in infantilizing or animalistic media stereotypes, and in physical violence. Until de jure segregation was dismantled,

  no Black person lived independent of it no matter where they

  lived, because de jure segregation meant that the authority of law

  applauded the debasing of Black people. Every Black person

  was affected adversely in their rights and dignity by de jure segregation, humiliated by its very existence. De jure segregation also had this deep and pernicious ef ect: it made de facto segregation

  look benign by comparison. Institutionalized racism had two

  ostensibly distinct, even opposite systems serving to validate it.

  In the South, this racism had the authority of law. In the rest of

  the country, the social inferiority of Blacks had the appearance

  of being natural, not imposed by force.

  De jure segregation was destroyed over many years because

  vast numbers of Black people with some brave white al ies

  fought it, sometimes at the cost of their lives.

  De jure segregation was fought in the courts and in the streets.

  “The streets” included shops, restaurants, buses, hotels, parks,

  toilets, because of the high priority put by the movement on integrating public accommodations. Much of this activity was il egal. The courts and the streets wer
e not separate arenas.

  When the Supreme Court disavowed segregation in public

  education in 1954, it was left to Black children to desegregate

  the schools. They faced white mobs led by armed police and

  elected white of icials. The children, not the Supreme Court,

  integrated the schools. When Rosa Parks refused to give up

  her seat to a white man on a bus in Montgomery, Alabama, on

  December 1, 1955, she was arrested and convicted for breaking a state segregation law. The Black community organized a boycot of the Montgomery buses that eventually led to their

  8

  Pornography and Civil Rights

  desegregation. Endless acts of civil disobedience resulted in

  perhaps hundreds of thousands of arrests over a period of at

  least a decade; marches led to continuous confrontations with

  violent police; civil-rights activists used the courts, sometimes

  as litigants, sometimes charged as criminals.

  The courts were the courts of segregation; north or south,

  federal or state, they had protected segregation. The streets were

  the streets of segregation. The police were the police of segregation. The vote was the vote that had kept segregation inviolate. Civil-rights activists confronted the institutions of segregation because they wanted to destroy segregation. They went to where the power and injury were and they confronted the power

  that was causing the injury. This power hurt them whether or

  not they fought it. In fighting it, however, they forced it to reveal itself—its cruelty and its sadism but also its premises, its dynamics, its structural strengths and weaknesses. Each confrontation led to another confrontation, more and worse social conflict, often more and worse police or mob violence. The courts

  led to the streets and the streets led to the courts. The good judicial decisions led to the armed police who did not accept those decisions, which led back to jail and back to the courts. There

  were also in time negotiations with two Presidents of the United

  States (Kennedy and Johnson) and the Justice Department; then

  back to the street, back to jail, back to court. There were battles

  and compromises with federal legislators; then demonstrations,

  marches, civil disobedience, jail. In the impoverished rural areas

  of the Deep South, civil-rights workers taught illiterate Blacks

  to read and write so they could pass the literacy tests that were

  being used to keep Blacks out of the voting booths. The civil-

  rights workers were met with white violence. So were the Blacks

  who tried to register to vote, throughout the South.

  The social conflict was real. Many were hurt and some were

  killed. The conflict escalated with each confrontation, inside

  the courts or in the streets. Each confrontation became more

  costly, both to the civil-rights activists and to the white-su-

  premacist society they were fighting. Each confrontation

  forced people throughout the society to ask at least these two

  fundamental questions of power and dignity: Who is getting hurt

  The Meaning of Civil Rights

  9

  and why? By attacking de jure segregation on every front, however dangerous or difficult, the civil-rights activists made

  the cost of maintaining the racial status quo higher and higher.

  Eventually it became too high. The Civil Rights Act of 1964

  opened up public accommodations, first in the South, later

  everywhere, to Black people. The Voting Rights Act of 1965

  opened up the voting booths.

  The high cost of maintaining the status quo forced change;

  and so did the increasing moral authority of the protesters.

  They risked everything. Their bravery indisputably expressed the eloquence of their humanity to a nation that had denied the very existence of that humanity. Each assertion of

  rights enhanced the persuasive power of those who demanded equality. The moral authority of the protesters eventually exceeded the moral authority of the state that sought to crush

  them. They won access to public accommodations and to the

  voting booth; and they won the respect of a nation that had

  hated them. De jure segregation no longer set the standard for

  the contemptuous disregard of the rights of Black people; instead, Black people set the human standard for courage.

  Principles:

  1. Confront power by challenging it where it is strongest,

  meanest, and most entrenched. (For instance, white supremacy was strongest in the legally segregated South; meanest in the streets, including in public accommodations; and most entrenched in the courts. ) 2. Intensifying and escalating social conflict leads to social

  change.

  3. The status quo must become too costly for the dominant

  society to bear.

  4. The moral authority of those confronting entrenched

  power can be a force for change.

  10

  Pornography and Civil Rights

  Our contemporary understanding of civil rights—what they

  are, what they mean—comes out of the Black experience: ’the

  human rights of Black people—their rights of citizenship and

  personhood—were violated in de jure and de facto systems of

  segregation. Civil-rights legislation grew out of the specific

  configurations of Black exclusion from society, dignity, and

  rights. Other groups were also af orded legal protection from

  discrimination. Where the pat erns of discrimination experienced by those groups were analogous to pat erns of Black exclusion under segregation, civil-rights laws remedied longstanding, systematic deprivations. For instance, the disabled, now protected under civil-rights legislation, have a right of

  equal access to public schooling and public accommodations.

  The effort to stop racial discrimination in jobs, hiring practices,

  and housing has provided many stigmatized groups legal redress.

  Generally, discrimination on the basis of race, sex, religion, color,

  national origin, marital status, disability, or, in some cities and

  states, sexual or affectional preference, is banned. This broadening of civil-rights protection to many stigmatized groups was the result of political activism, legislative initiatives, and many, many

  lawsuits. It was not simply decreed one bright day because it was

  right and bigots had recognized the error of their bad ways.

  It is especially important to understand that Blacks includes

  Black women and that women includes Black women. When

  Black people as a whole or women as a whole are discriminated against or hurt, Black women are denied rights. (For instance, when Blacks were given the vote, but women were

  excluded, Black women could not vote. )

  Women have benefited greatly from civil-rights legislation

  and litigation when discrimination has taken the form of exclusion because of sex, especially in employment. When the pat erns of sex discrimination resemble those of race discrimination, especially as they developed under segregation, civil-rights law offers remedies. But when injuries on the basis of

  sex are distinct and different—as, for instance, in systematic

  sexual abuse—there are no effective civil-rights remedies in

  law even though basic rights of citizenship and personhood

  are being denied or violated.

  The Meaning of Civil Rights

  1

  The legal history of women’s rights in the United States is

  appalling.

  Put in the simplest terms: women were the chattel property

  of men under law
until the early part of the twentieth century.

  Married women could not own property because they were

  property. A woman’s body, her children, and the clothes on

  her back belonged to her husband. When the husband died,

  another male, not the mother, became the legal guardian of

  the children. The body of a married woman belonged to her

  husband just as a slave’s body belonged to the white master.

  A single woman was under the legally formidable authority of

  her father or other male relatives. Mar ied women were what

  nineteenth-century feminists called “civil y dead. ” Single

  women sometimes paid taxes. No women had rights of citizenship. Women did not have a constitutionally protected right to vote until 1920.

  The Fourteenth Amendment to the U. S. Constitution was

  ratified in 1868. The Fourteenth Amendment is unique in the

  Constitution. It is an equality-based amendment; it says that

  equality under the law is a right. The Fourteenth and the Fifteenth Amendments gave Black men the vote. The Fourteenth Amendment guaranteed citizens equal protection under the

  law. The Fourteenth Amendment intentionally excluded

  women. * Only in 1971 did the Supreme Court hold that

  women too were entitled to the equal protection under the

  law promised by the Fourteenth Amendment.

  The banning of discrimination on the basis of sex in the

  Civil Rights Act of 1964 was a partial and mean af air. Trying

  to defeat the whole Civil Rights Act, racist Southern Congressmen proposed to add sex on a par with race to Title VII, the

  * Section 2 of the Fourteenth Amendment indudes the fol owing: “But when the

  right to vote at any election for the choice of electors... is denied to any of the male inhabitants of such State, being twenty-one years of age... or in any way abridged

  ... the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. ” (Emphasis added. ) In other words; when states deny any man the right to vote in federal or state elections, the Fourteenth Amendment is violated. The Fourteenth Amendment, by express language, declined to extend this equality right, the right to vote, to any women. The Nineteenth Amendment, which extended the franchise to women, was passed in 1920.