Catharine MacKinnon: Anyone Interested in a Sharp Smack on the Side of the Head?

1. Catharine MacKinnon: Anyone Interested in a Sharp Smack on the Side of the Head? November 4, 2004

2. Some Preludes to MacKinnon’s Work • BA from Smith, JD and Ph.D. from Yale • Law Professor at U. of Michigan and U. of Chicago, visiting positions at Stanford, Yale, Harvard, Minnesota • Associate and colleague of Andrea Dworkin • Responsible for serious work related to equality, sexual harassment, free speech and international women’s rights • Currently representing pro bono Croatian and Muslim women and children victims of Serbian genocidal sexual atrocities seeking remedies under international law

3. The problem is the subjugation of females • This condition is imposed by force. Some force comes in the more covert forms of socialization, pressure, and inculcation to passivity and femininity, some in the more overt forms of poverty and sexual violence. In the United States, the average woman does not yet have an income that is two-thirds that of the average man. Forty-four percent of American women report rape or attempted rape at least once in their lives. Thirty-eight percent report having been sexually abused as children . Between a quarter and a third are battered in their homes. Eighty-five percent have been, or will be, sexually harassed in the workplace, thirty-five percent of them physically. Most prostitutes are female.

4. MacKinnon continues • Although these facts are uncontested and incontestible, neither are they really acknowledged or faced. Mostly this reality is elided because neither women nor men like thinking about it, and because men like living it, or at least benefit from it. So its victims go under without a trace. Life and letters are unchanged. Law and politics go on as usual. Virtually nothing is done about any of it, by anyone, anywhere.

5. Pornography destroys women’s equality and lives • Protecting pornography means protecting sexual abuse as speech, at the same time that pornography and its protection have deprived women of speech, especially speech against sexual abuse. There is a connection between the silence enforced on women, in which we are seen to love and choose our chains because they have been sexualized, and the noise of pornography that surrounds us, passing for discourse (ours, even) and parading under constitutional protection. The operative definition of censorship accordingly shifts from government silencing what powerless people say, to powerful people violating powerless people into silence and hiding behind state power to do it.

6. A thought experiments to prove MacKinnon’s point • Assume that there is a public market place for sadistic torture videos set in concentration camps, and that drug-addicted, psychologically unstable Jews could be found to act in them. Virtually none of us would have any problem recognizing this as an extremely unhealthy form of entertainment, nor would we hesitate to believe that the consumers of such videos would be confirmed in their racist and sadistic views and more likely to act on them as a result.

7. An analogy to prove her point • Would any of us really make the argument that sexual harassment in the workplace should be protected as free speech? Harassment is seen as an act, not speech. It is therefore properly penalized under the law. Why should pornography be different?

8. American Booksellers Assoc. v. Hudnut (Judge Easterbrook) • “The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way—in sexual encounters “premised on equality”—is lawful no matter how sexually explicit. Speech treating women in the disapproved way—as submissive in matters sexual or as enjoying humiliation—is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. The Constitution forbids the state to declare one perspective right and silence opponents.”

9. Nadine Strossen (Defending Pornography) responds: • “Ironically, the procensorship feminists’ revisionist definition of prohibited sexually oriented expression as speech that conveys a misogynistic message reveals the constitutional Achilles’ heel of their antipornography law: its focus on the political dimension of sexual expression.”