Passions Over Pornography

By John Elson

Is pornography essentially an outlet for sexual fantasy, rightly protected by the First Amendment's free speech provisions? Or is it an instruction manual for violent men that shatters women's civil rights by contributing to their harassment, humiliation and subordination? Those questions are at the heart of an often acrimonious debate that has divided feminists and civil libertarians across the U.S.

The argument is currently raging on three fronts:

-- In Massachusetts, feminist groups can be found on both sides of the debate over a proposed bill that would allow individuals who can prove that they were assaulted as a result of pornography -- defined as a form of sexual discrimination -- to recover damages in civil court from publishers and purveyors of the material.

-- In Florida, Jacksonville Shipyards is appealing the January 1991 ruling by a federal judge that a welder named Lois Robinson was harassed by male co- workers who put up graphically sexual posters and calendars, some showing women being abused. Among the offensive materials was a poster with a frontal view of a nude woman and the imprinted words USDA CHOICE. One surprising supporter of the appeal: the American Civil Liberties Union, which also opposes the Massachusetts bill.

-- In Washington, the Senate Judiciary Committee is considering S 1521, introduced last year by Kentucky Republican Mitch McConnell, which would allow victims of sex crimes to sue the producers, distributors and sellers of obscene material and child pornography if the victims can prove that the material was a "substantial cause" of the injury. Some have informally dubbed McConnell's proposal "the Bundy bill," after serial killer Ted Bundy, who claimed just before his execution that pornography had fueled his violent fantasies.

The co-authors of the Massachusetts bill are the odd couple of American feminism. Michigan law professor Catharine MacKinnon is sleek and stylishly dressed-for-success. Writer Andrea Dworkin (Pornography: Men Possessing Women and Intercourse), with her tousled hair and overalls-and-T-shirt decor, looks like a radical from the '60s.

The two activists have been campaigning in tandem against pornography since the early '80s; city ordinances they devised for Minneapolis, Indianapolis and Bellingham, Wash., all similar to the Massachusetts bill, were rejected by courts or local officials. Their basic argument is that Supreme Court rulings on obscenity, meaning prurient material that offends community standards, provide no impediment to the increasing violence directed against women. Much of that violence, they argue, has been inspired by pornography, which their bill defines as "the graphic, sexually explicit subordination of women through pictures or words."

"Pornography currently has more protection than women do," MacKinnon told the statehouse committee considering the Massachusetts bill. In corroboration, several witnesses gave chilling testimony of being sexually abused by husbands and boyfriends who admitted that they had been prompted by porn films or magazines. Fighting back tears, Pat Haas, of Brookline, Mass., said she had been beaten by her boyfriend, who forced her to act out scenes from pornography. "He did what was in the movies," says Haas. "If he had seen a snuff film, I wouldn't be here." Under the proposed antipornography civil rights bill, victims like Haas could sue the pornographers for being indirectly responsible for the crime.

That burden shifting bothers many civil rights activists who otherwise care deeply about violence against women and children. "We feel this bill is censorship," says Marilyn Fitterman of the New York State chapter of the National Organization for Women. "It takes the onus off the criminal and blames the publishers and artists." Nancy Ryan of the Cambridge women's commission, which opposed a similar measure introduced in that Boston suburb, argues that "the men who did these acts would have done them without pornography." Others contend that the evidence linking pornography to systematic violence is more anecdotal than statistically solid.

The A.C.L.U. opposes the Massachusetts initiative for much the same reason it argued against previous MacKinnon-Dworkin bills. Pornography no doubt causes harm, says Burt Neuborne, the union's former national legal director. But to suppress it, under First Amendment rules, "you have to show, in addition to the harm, that there is no other societal way of dealing with a problem than censorship. Here, the current bills fail."

The internal debate within the A.C.L.U. on the Florida case was, in the words of an insider, "fairly acrimonious." Many women members believe that by filing an amicus curiae brief in support of the shipyard, the organization displayed insensitivity to the intimidating effect that pornography has on women in predominantly male environments. "The workplace is different from the street," contends Mary Ellen Gale, a Whittier College law professor and member of the A.C.L.U.'s national board. "If someone shouts an obscenity on the street, you're not captive and you're not being denied equal opportunity. But it's different when it happens in the workplace. Robinson's ability to do her job was affected."

Other A.C.L.U. officials readily concede that Robinson was sexually harassed by lewd comments of male welders and X-rated scrawling in her work area. But they argue that U.S. District Judge Howell Melton went too far in responding to the complaint. Robyn Blumner, executive director of the Florida A.C.L.U., argues that Melton's sweeping order, which barred male workers from bringing sexually suggestive materials to work, would have applied as readily to a newspaper brassiere ad as to the crude posters that offended Robinson. Beyond that, she says, Melton's ruling that workers cannot even possess the pornographic calendars clearly violates their First Amendment rights. (One quirk of the case: by shipyard practice, employees could not bring newspapers or magazines to work -- but the pornography was O.K.)

MacKinnon, Dworkin and the A.C.L.U. all have qualms about the Senate's so- called Bundy bill, although for different reasons. The two feminists contend that since the proposed legislation narrowly bans only "obscenity" -- which is not protected by the First Amendment, courts have ruled -- this restriction may prove to be legally counterproductive. "If pornography is excessively violent," Dworkin explains, "very often a jury will find that it's not obscene because it's not sexually arousing."

As for the A.C.L.U., it considers the bill a dangerous threat to the First Amendment. So does an Ad Hoc Committee of Feminists for Free Expression, whose members include such noted writers as Betty Friedan, Nora Ephron and Erica Jong. In a Valentine's Day letter to the Judiciary Committee, the group argued that S 1521 is a "logical and legal muddle" that "scapegoats speech as a substitute for action against violence" and "reinforces the 'porn made me do it' excuse for rapists and batterers."

MacKinnon and Dworkin believe theirs is an idea whose time has come at last. As evidence, they can cite last month's unanimous ruling by Canada's Supreme Court -- endorsing MacKinnon's argument -- that pornography harmful to women can be outlawed even though freedom of expression is infringed. Cass Sunstein, a professor of constitutional law at the University of Chicago, notes that the courts have carved out numerous exceptions to the First Amendment; for example, it does not protect bribes, fraud, threats or conspiracy.

True enough, First Amendment defenders answer, but the MacKinnon-Dworkin approach may be a cure worse than the disease. On dubious evidence, they say, the antiporn bills take aim at a secondary cause of female subordination and ignore the reality that woman-hating psychopaths have more often cited the Bible as inspiration. Beyond that, advocates of the antiporn bills seem blithely indifferent to the crippling cultural impact of legislation that places so much emphasis on the subjective views of crime victims. Porn, like beauty, may be in the beholder's eye. But it is a bad perspective for building good law.

With reporting by Cathy Booth/Miami, Julie Johnson/Washington and Andrea Sachs/Boston