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The Attorney General's Commission and the New Politics of Pornography

Published online by Cambridge University Press:  20 November 2018

Donald Downs
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The 1986 Attorney General's Commission on Pornography Report (the 1986 Commission) is an important, yet puzzling, document. It is important because of the significance of the pornography issue, and because the Commission contributes to our understanding of pornography. The Commission is puzzling, however, because its conclusions appear simultaneously reasonable and unreasonable. Despite the condemnations of the press (on grounds of runaway censorship), the final report was actually cautious and restrained in many respects. The Commission limited its recommendations for censorship to what it considered the most degrading forms of pornography, and refused to endorse legal prohibitions that went beyond the scope of the traditional “obscenity” exception to the First Amendment. But the Commission also expressed a strong concern about the harms that pornography might engender. Given the eruption of violent and other questionable forms of pornography in recent years, this concern is hardly unreasonable. Furthermore, recent polls show that a majority of Americans favor restricting violent forms of pornography. In these respects the Commission's efforts appear to embody a committed, yet balanced, approach that considered different values (what Max Weber termed the ethic of responsibility).

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. 641 - 679
Copyright
Copyright © American Bar Foundation, 1987 

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References

1 See Malamuth, N. and Donnerstein, E., eds., Pornography and Sexual Aggression (1984): Donnerstein, E., Linz, D., and Penrod, S., The Question of Pornography: Research Findings and Implications (1987), esp. Chs. 1 & 2. Jacobs, Patterns of Violence: A Feminist Perspective on the Regulation of Pornography, 7 Harv. Women's L.J. 5 (1984).Google Scholar

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6 See V.B. Cline, Another View: Pornography Effects, the State of the Art, in Cline, ed., Where Do You Draw the Line? (1974). For a feminist critique of the Commission's liberal bias, see K. Barry, Female Sexual Slavery (1979). at 233–248.Google Scholar

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11 Obscenity doctrine, however, is not liberal. Yet obscenity is rarely prosecuted, and the Court has over the years narrowed the scope of obscenity doctrine in the name of liberal principles. See An Empirical Inquiry into the Effects of Miller, V. California on the Control of Obscenity, N.Y.U. Obscenity Project, 52 N.Y.U. L. Rev. 810 (1977).Google Scholar

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13 The politics and broader implications of the ordinance will be discussed in a book I am completing on the politics of pornography in the 1980s, tentatively entitled The New Politics of Pornography arid the Forms of Liberty. In this book, I point out that the speed of passage of the ordinance reflected certain feminist views concerning the need to “break through” the complacency of liberal ideology which (some feminists allege) protects pornography from social control.Google Scholar

14 Pornography “silences” women's voices by objectifying and dehumanizing them. See C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987). esp. Ch. 14; K. Barry, supra note 6, Ch. 9 (pornography is “the ideology of sexual sadism”).Google Scholar

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18 Mansfield, Id., at 122. In a recent book, Lee Bollinger develops a free speech theory of tolerance that is similar in many respects to the notion of the forms of liberty under discussion. According to Bollinger, legal tolerance of “extremist” group speech teaches us to control our natural impulse to strike at that which does not conform to our settled views. Such restraint makes us more responsible and virtuous citizens. See L. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986).Google Scholar

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20 Hoffman, Feminism, Pornography, and the Law, 133 U. Pa. L. Rev. 497 (1985).Google Scholar

21 MacKinnon, Catherine, the author of the feminist ordinance and perhaps the foremost radical feminist activist in America, holds that neutral principles constitute the core of modern free speech doctrine. See MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. Civ. Rts.-Civ. Libs. Law Rev. 1 (1985). pp. 6–8. I am speaking of the central tenets of speech entailing political issues, for the feminist critique of pornography is decidedly political (and was so construed by the courts, as we will see below). Other First Amendment areas are less liberal, thereby eluding any central principle. See Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 Northwestern L. Rev. 1212 (1983).Google Scholar

22 See L. Bollinger, supra note 18.Google Scholar

23 Mill, On Liberty (1898); Berlin, Two Concepts of Liberty, in I. Berlin Four Essays on Liberty (1969). See also Wellington, On Freedom of Expression, 88 Yale L. J. 1105 (1979).Google Scholar

24 State neutrality is a benchmark of liberal political theory. See B. Ackerman, Social Justice in the Liberal State (1980).Google Scholar

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27 T. Lowi, The End of Liberalism: The Second Republic of the United States (1979). The Court, for example, has avoided accepting “affirmative action” principles in the First Amendment area concerning campaign and referenda spending. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).Google Scholar

28 Most of these exceptions were first clearly articulated in Chaplinsky v. New Hampshire, 315 US. 568 (1942), at 571–572.Google Scholar

29 The direct harm principle is an underpinning of liberal democracy and criminal law jurisprudence. See C. Fried, Right and Wrong (1978), Ch. 2.Google Scholar

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31 F. Schauer, The Law of Obscenity (1976), at 1. Cohen v. California, 403 U.S. 15 (1971) (“Fuck the Draft” on a jacket not obscene because not a sexual context).Google Scholar

32 Schauer, Id. According to Walter Kendrick, the use of the term “pornography” is modern, beginning sometime between 1755 and 1857, after the remains of Pompeii were discovered. Changing technology, which made sexual writings and depictions more available, was also important. Kendrick, The Secret Museum: Pornography in Modern Culture (1987), Ch. 1.Google Scholar

33 In Brockett v. Spokane Arcades, Inc., 105 S. Ct. 2794 (1985), the Supreme Court overturned a state statute that defined obscene prurient appeal as “that which incites lasciviousness or lust.” The Court construed this definition to include both normal and abnormal sexual impulses, and it ruled it unconstitutional because the obscenity exception properly covers only abnormal or unhealthy prurient appeal.Google Scholar

34 315 U.S. 568 (1942).Google Scholar

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36 354 U.S. 476 (1957) at 489.Google Scholar

37 Regina v. Hicklin, 3 Q.B. 360 (1868), at 363. The first major federal case in America to reject Hicklin was U.S. v. One Book Called “Ulysses,” 5 F. Supp. 182 (S.D.N.Y. 1933), aff'd 72 F.2d 705 (2d Cir. 1934), at 24.Google Scholar

38 Stanley v. Georgia, 394 U.S. 557 (1969). On the complex development of obscenity law liberalization in the 1960s, see An Empirical Inquiry into the Effects of Miller v. California on the Control of Obscenity, N.Y.U. Obscenity Project, 52 N.Y.U. Law Rev. 810 (1977), at 821–844.Google Scholar

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40 See, e.g., Alexander v. City of Minneapolis, 531 F. Supp. 1162 (D. Minn. 1982). This case caused many community activists in Minneapolis to despair of “traditional” means of restricting pornography and to be open to the feminist ordinance as a new hope. A recent Supreme Court case, however, suggests that the Court may now be more deferential to zoning efforts in the area of sexual materials. Renton v. Playtime Theatres, Inc. 106 S. Ct. 925 (1986).Google Scholar

41 See N.Y.U. Obscenity Project, supra note 38. 1986 Attorney General's Report, Part Two, Ch. 6, esp. at 366–372.Google Scholar

42 See R. Smith, Liberalism and American Constitutional Law (1985), Ch. 4.Google Scholar

43 Matthew Stark (Executive Director, MCLU) interview, April 1986.Google Scholar

44 Hoffman, supra note 20, at 506.Google Scholar

45 Hoffman, Id., at 506.Google Scholar

46 Lynn, supra note 8.Google Scholar

47 Kalven, , “The Metaphysics of the Law of Obscenity,” 1960 S. Ct. Rev. 1. Baier, Response: The Liberal Approach to Pornography, 40 U. Pitt. L.R. 619 (1979), 624–625.Google Scholar

48 See H. Bedau and E. Schur, Victimless Crimes (1974).Google Scholar

49 See P. Gay, The Bourgeoise Experience: Victoria to Freud, Vol. I, The Education of the Senses (1984), at 359–378; P. Boyer, Purity in Print: The Vice Society Movement and Book Censorship in America (1968).Google Scholar

50 R. Neuhaus, The Naked Public Square: Religion and Democracy in America (1984); A. MacIntyre, After Virtue (1981) (modern society espouses a morally relativistic emotivism over a substantive notion of the good).Google Scholar

51 W. Berns, The First Amendment and the Future of American Democracy (1976), Ch. 3.Google Scholar

52 1986 Commission Report, supra note 8, at 303. This environmental epistemology is synthetic (considering the whole, as distinct from the parts), rather than analytical (ignoring the whole in favor of the individual parts, i.e., liberalism). See Unger, supra note 26, at 46–47, 81–83.Google Scholar

53 Hoffman, supra note 20, at 505. See R. Scruton, Sexual Desire: A Moral Theory of the Erotic (1986). Scruton's analysis, which emphasizes intention, individuation and desire, epitomizes a “modern” conservative approach to sexuality.Google Scholar

54 Hoffman, Id.Google Scholar

55 Berns, , Pornography vs. Democracy: The Case for Censorship, 22 The Public Interest 13 (1971).Google Scholar

56 Kristol, Pornography, Obscenity, and the Case for Censorship, New York Times Magazine, March 28, 1971. See also E. Van Den Haag, The Case for Pornography Is the Case for Censorship and Vice Versa, in Hughes, ed., Perspectives on Pornography (1970), at 128–130; Scruton, supra note 53, Ch. 11.Google Scholar

57 Hoffman, supra note 20, at 506. Lord Devlin's understanding of the mission of the criminal law as an enforcer of the objective public morality is representative. See The Enforcement of Morals (1969), Ch. 1.Google Scholar

58 Personal interviews with Indianapolis figures: Council members William Dowden (July, 1986) and David McGrath (May, 1985); fundamentalist minister-activist Rev. Greg Dixon (March, 1985).Google Scholar

59 See Allison Jagger, Political Philosophies of Women's Liberation, in Mary Vetterling-Braggin, Frederick A. Elliston, and Jane English, Feminism and Philosophy (1977), at 7–18. Also Kirp, et al., Gender Justice, supra note 26.Google Scholar

60 Cindy Jenefsky, Breaking the Silence: Andrea Dworkin's Discourse on Pornography. M.A. Thesis, Univ. Wisconsin, Madison (1985).Google Scholar

61 See, e.g., MacKinnon. supra note 14.Google Scholar

62 See A. Soble, supra note 19, Ch. 6.Google Scholar

63 Jones, The Eye of the Beholder: Pornographyic Discourse and Feminist Criticism. Paper presented to A.P.S.A. 1985 national meeting, at 6–7.Google Scholar

64 See Hoffman, supra note 20, at 510–511; S. Brownmiller, Against Our Will: Men, Women, and Rape (1975); Barry, Female Sexual Slavery, supra note 6. For a powerful Freudian-Hegelian view of the inevitability of male aggression and alienation, see Jessica Benjamin, Master and Slave: The Fantasy of Erotic Domination, in A. Snitow, ed., The Powers of Desire (1983). For a similar view by a male psychiatrist, see Martin Roth, Pornography and Society: A Psychiatric View, in Yaffe and Nelson, eds., The Influence of Pornography on Behavior (1982).Google Scholar

65 A. Dworkin, Pornography (1981), p. 16.Google Scholar

66 MacKinnon, “Pornography, Civil Rights, and Speech,”supra note 21, at 4–5. See also Feminism Unmodified, supra note 14, Chs. 2 & 14.Google Scholar

67 Hoffman, supra note 20, at 511 (quoting a pamphlet of Women Against Pornography), and at 513. On the erotica/pornography distinction. which is centered on the presence or absence of equality, see Gloria Steinem, Erotica vs. Pornography, in Steinem, Outrageous Acts and Everyday Rebellions (1983). at 219–230. MacKinnon and Dworkin, however, have come close to rejecting the distinction because of what they discern as the impossibility of egalitarian sex in a system governed by male domination. See MacKinnon, Feminism Unmodified, supra note 14, Ch. 2; Dworkin, Intercourse (1987).Google Scholar

68 Naomi Scheman (Univ. Minnesota, Dept. Philosophy) interview, Minneapolis, March, 1986.Google Scholar

69 Brownmiller, supra note 64, at 394. See also R. Morgan, Theory and Practice: Pornography and Rape, in Morgan, Going Too Far (1977), at 165–166 (“Pornography is the theory, rape the practice”). Barry, supra note 6, Ch. 9 (pornography the “ideology of cultural sadism”).Google Scholar

70 Bryden, , Between the Two Constitutions: Feminism and Pornography, 2 Con. Comm. 147 (1985).Google Scholar

71 MacKinnon, , Not a Moral Issue, 2 Yale L. & Pol. Rev. 321 (1984). Such feminists see obscenity law as an expression of the moral hypocrisy that governs patriarchy. See also Barry, supra note 6.Google Scholar

72 Proposed Ordinance Sec. 3, to add Minneapolis City Ordinance (MCO) Sec. 139.20 (gg).Google Scholar

73 Id., at Sec. 4, to add MCO Secs., 139.40 (m), (l), (n), and (o), respectively.Google Scholar

74 Charlee Hoyt (Minneapolis City Council) interview, Minneapolis, August 1985. Naomi Scheman interview, supra note 68.Google Scholar

75 For purposes of analysis, however, the report defined “pornography” as material that is “sexually explicit and intended primarily for the purpose of sexual arousal.” 1986 Commission Report, pp. 228–229. However, it took the full Commission a long time to come up with a definition (see below).Google Scholar

76 At the federal level, the most prominent recommendations included: changing obscenity laws to make a second offense a felony with a one-year jail sentence; changing forfeiture laws so that the government could take the assets of a business found to have violated federal obscenity law; prosecuting producers of pornographic films under prostitution laws; changing federal law so that material need not have been transported in interstate traffic for federal law to apply (“affecting” interstate commerce would be enough); enacting legislation making it an unfair business and labor practice for any employer to hire people to participate in commercial sexual performances; amending Title 18 of the U.S. Code to expressly prohibit obscene cable television programming; enacting legislation to prohibit sending obscene material through the telephone or similar common carrier; creating a Justice Department task force on obscenity cases to give priority to obscenity cases; using the Racketeer Influenced Corrupt Organization Act to get at producers and distributors of obscenity; a set of proposals concerning child pornography. Similar recommendations were made for states. All of these recommendations, as well as others, are in 1986 Commission Report, Part Three.Google Scholar

77 See P. Nobile and E. Nadler, United States of America vs. Sex: How the Meese Commission Lied About Pornography (1986), and Lynn, supra note 8. Nobile and Nadler's book is important, for it is the only comprehensive and detailed treatment of the entire 1986 Attorney General's Commission proceedings available. All of the Commission's proceedings, including special sessions for deliberation and discussion, were open to the public, but Nobile and Nadler were the only two reporters to accompany the Commission in all its business. Unfortunately, Nobile and Nadler are absolutist libertarians with axes to grind: and the fact that they are editors at Forum magazine (which is devoted to sexual matters) raises questions about their own bias. Nonetheless, they are first-rate reporters, and it is possible to distinguish their bras from their reportage of the facts and problems of the Commission, thus avoiding employing their subjective evaluations.Google Scholar

78 1986 Commission Report, at 299 (e.g., zoning, broadcasting).Google Scholar

79 Id., at 300.Google Scholar

80 “We do not wish … to burden ourselves with an unduly narrow conception of harm,” the report stated. Id., at 302.Google Scholar

81 The wording of the classes of harm and the tiers and sub-tiers of harm used here is taken from the Summary of Commission Findings of Harm From Pornography, 1986 Commission Report, at 1034–1035. The following quotations are from this part of the report.Google Scholar

82 1986 Commission Report, Statement of Judith Becker, Ellen Levine, and Deanne Tilton-Durfee, at 193–194. “Statement of Dr. Judith Becker and Ellen Levine.” at 195–212.Google Scholar

83 See, e.g., Malamuth and Donnerstein, supra note 1; Donnerstein, Linz, and Penrod, supra note 1; Roth, Pornography and Society: A Psychiatric View, in Yaffe and Nelson, eds., The Influence of Pornography on Behavior, supra note 64, Ch. 1.Google Scholar

84 In my work on free speech and hate groups, I maintain that our liberal democracy is premised on Kantian notions of individuals as responsible ends in themselves, rather than as means to other people's ends or pleasures. See Downs, Nazis in Skokie: Freedom, Community, and the First Amendment (1985), Ch. 8. See also Arkes, The Philosopher in the City (1981). at 7, 47–48. As seen, both conservatives and feminists understand the pornographic mentality to reduce individuals to the status of sexual objects or means to other people's ends. See, e.g., Van den Haag, The Case for Pornography Is the Case for Censorship and Vice Versa, supra note 56, and K. Silverman, Histoire d'O: The Construction of a Female Subject, in C. Vance, ed., Pleasure and Danger: Exploring Female Sexuality (1984), at 320–349. Consequently, it is possible to reconcile conservative and feminist critiques to at least some extent.Google Scholar

85 Rist, Polity, Politics, and Social Research, supra note 9, at 265.Google Scholar

86 Schauer, Personal Statement, 1986 Commission Report, at 177–178.Google Scholar

87 See Brest, P. and Vandenberg, A., Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 Stan. L. Rev. 607 (1987), esp. at 660.CrossRefGoogle Scholar

88 On the importance of “public discourse” to political freedom as envisioned by the First Amendment, see Alexander Meiklejohn, Political Freedom (or Free Speech and Its Relation to Self Government) (1965). Also Hannah Arendt, The Human Condition (1958).Google Scholar

89 1986 Commission Report, at 215.Google Scholar

90 See critique of Commissioners Levine and Becker, Personal Statement, 1986 Commission Report, at 195–212.Google Scholar

91 Nobile and Nadler, supra note 77, at pp. 61–62.Google Scholar

92 See Byrne and Kelley, Pornography and Sexual Research, in N. Malamuth and E. Donnerstein. Pornography and Sexual Aggression, supra note 1, Ch. 2.Google Scholar

93 See, e.g., Report of Commissioner Keating, Charles H., 1970 Commission, at 578–624; Clor, Science, Eros, and the Law: A Critique of the Obscenity Commission Report, 10 Duquesne L. Rev. 63 (1971). esp. at 73–76 (on “libertarian ideology”); Cline, Another View, supra note 6. On the “disinterest” of the 1970 Commission, see Johnson, supra note 5; Rist. supra note 9.Google Scholar

94 Washington Post, March 30, 1983, at C2, col 2.Google Scholar

95 Federal Panel Planned to Study Ways to Control Pornography, Indianapolis Star, March 3, 1985, at 3.Google Scholar

96 Hertzberg, supra note 7. at 21.Google Scholar

97 Commission Was Controversial From the Start, National Law Journal. July 28, 1986, at 45; Hertzberg, Id.; Lynn, supra note 8, at 28–29.Google Scholar

98 Becker and Levine Personal Statement, 1986 Commission Report, p. 197. These dissenters also admitted that the very nature of the task made prejudgment hard to overcome.Google Scholar

99 MacKinnon, Feminism Unmodified, supra note 14, Chs. 2 & 3.Google Scholar

100 For example, he had publicly denounced Dr. Ruth Westheimer for espousing the benefits of orgasm in premarital sex. Hertzberg, supra note 7, at 21; Nobile and Nadler, supra note 77, at 18.Google Scholar

101 Nobile and Nadler, Id., at 186–188. Keating was the founder of CDL, and the leading dissenting member of the 1970 Commission on Pornography and Obscenity. This action naturally raised questions of bias and conflict of interest. Another commissioner, Diane Cusack of Scottsdale, received $11,250 from CDL in early 1986 for her reelection bid for Scottsdale's city council. Id., at 187–188.Google Scholar

102 See Nobile and Nadler for many examples of this.Google Scholar

103 1986 Commission Report, supra note 8, at 11.Google Scholar

104 Nobile and Nadler, supra note 77, at 18–19.Google Scholar

105 1986 Commission Report, supra note 8, at 21.Google Scholar

106 Reisman went on to put together a final, three-volume (1,600-page) report on the content of Playboy. Penthouse. and Hustler. The Justice Department spent almost 50% more money on this study than it did on the Attorney General's Commission. See Everything You Wanted to Know About Pornography-and Less, Washington Post Weekly, Sept. 29, 1986, at 33.Google Scholar

107 Nobile and Nadler, supra note 77, at 116–117.Google Scholar

108 Porno Blacklist 72 ABAJ 28, (July 7, 1986).Google Scholar

109 See, e.g., Schauer, Speech and “Speech,”supra note 35.Google Scholar

110 Schauer letter to Commissioners, in Nobile and Nadler, supra note 77, 208–209.Google Scholar

111 Schauer letter to Commissioners, in Nobile and Nadler, Id., at 209.Google Scholar

112 Levine and Becker Personal Statement, 1986 Commission Report, at 196. Emphasis added. Several Council members I have interviewed in Minneapolis and Indianapolis also emphasized that they were unable to seriously question the feminist ordinance in their cities because of the public pressure exerted in the legislative hearings. They feared being labeled “pro-pornography.” The ordinance's advocates justified the unbalanced nature of the hearings in terms of the need to give special access to the previously “silenced” voices of women. See Brest and Vandenberg, supra note 87, at 649; MacKinnon, Feminism Unmodified, supra note 14, pp. 181. 188–195.Google Scholar

113 Nobile and Nadler, supra note 77, at 27–28; Lynn, supra note 8, at 42–48. See also 1986 Commission Report, at 1845–1861 (“Witnesses testifying before the Commission”). This percentage is greater than the public's support for restricting pornography. See Gallup Poll, supra note 2.Google Scholar

114 See 1976 NYU Obscenity Project Report, supra note 38. Also: 1986 Commission Report, esp. pp. 366–372.Google Scholar

115 Nobile and Nadler, supra note 77, at 61.Google Scholar

116 This edge, however, may be counterbalanced by the legal power of pornographers and by the social and legal circumstances that make prosecution difficult. The feminist critique also maintains that pornography has social power by virtue of its ties to male domination.Google Scholar

117 Nobile and Nadler, supra note 77, at 37–39.Google Scholar

118 A similar problem arose in public hearings over the ordinance in Minneapolis and Indianapolis.Google Scholar

119 MacKinnon's epistemology of engagement is predicated on acknowledging the impact of oppression on actual persons. See Feminism Unmodified, supra note 14, Ch. 3. Thus, the hearings at Minneapolis, Indianapolis, and before the Attorney General's Commission are actualizations of her feminist form of knowledge. And the fact that pornography is implicated in harms attests to the usefulness of such hearings and testimony. Indeed, I have utilized this method in interviewing Holocaust survivors in the Skokie free speech controvery. See D. Downs, Nazis in Skokie, supra note 84. But such testimony should not itself dominate critical thinking.Google Scholar

120 For a powerful feminist critique of the victimization ideology in radical feminist politics, see J. Elshtain, Public Man, Private Women (1981), Ch. 5; Elshtain, The Victim Syndrome, The Progressive, June 1982. Kathleen Barry, whose work on sexual slavery is a pivotal radical feminist work, also criticizes what she calls “victimism,” which “denies the woman the integrity of her humanity … victimism is an objectification.” Female Sexual Slavery, supra note 6, at 45, and also 43–49.Google Scholar

121 1986 Commission Report, supra note 8, at 767–836.Google Scholar

122 Id., at 52.Google Scholar

123 Nobile and Nadler, supra note 77, at 47.Google Scholar

124 Levine and Becker Statement, 1986 Commission Report, at 200.Google Scholar

125 Id., at 206.Google Scholar

126 Edward Donnerstein, a major source of the Commission's scientific findings, has disavowed the Report's conclusions. See L.A. Daily News, July 11, 1986, editorial page. Donnerstein has had similar problems with the conclusions of many anti-porn organizations. See Donnerstein interview in Penthouse, September 1985, at 165–181. And Donnerstein interview, Madison, Wisconsin, July, 1985. See also the accompanying essay by Linz, Donnerstein, and Penrod.Google Scholar

127 1986 Commission Report, supra note 8, at 331.Google Scholar

128 Id., at 332. This point is supported by many researchers. See Dan Linz (scientific pornography researcher) interview, Madison, Wisconsin, Sept. 1986.Google Scholar

129 1986 Commission Report, at 332 ff.Google Scholar

130 Minn. Proposed Ord. Sec. 3, to add Minn. City Ord. (MCO) Sec. 139.20 (gg). The Commission, however, did not endorse censoring words.Google Scholar

131 1986 Commission Report, supra note 8, at 334.Google Scholar

132 Id., at 310.Google Scholar

133 Many students of the literature argue that correlation is about as far as the evidence can go in this area, and that correlation IS established only for Class I material. See Lynn, supra note 8, at 66–68. The evidence is also insular, making extrapolation to society problematic. See Palys and Lowman, Methodological and Meta-Issues in Pornography Research: Ecological Representativeness and Contextual Integrity, paper presented at June, 1984, meeting of Canadian Psychological Ass'n. See also accompanying essay by Linz, et al.Google Scholar

134 1986 Commission Report, supra note 8, at 331, 334–335.Google Scholar

135 See Id., at 1499–1802 (The Imagery Found Among Magazines, Books, and Films in “Adults Only” Pornographic Outlets).Google Scholar

136 1986 Commission Report, at 330. See also Dr. Dolf Zillmann testimony, Transcript of Proceedings, U.S. Dept. Justice, Attorney General's Comm. on Pornography, Public Hearings, Houston (Sept. 11, 1985).Google Scholar

137 This position resembles the radical feminist contention that even consensual sex is “rape” within the structure of male domination unless it is initiated by the female (because “the pressure is there”). See R. Morgan, Theory and Practice: Pornography and Rape, supra note 69, at 165–166. A. Dworkin, Intercourse, supra note 67.Google Scholar

138 Recall, however, that the Commission did not recommend censure of the written word. See 1986 Commission Report, at 381–385 (“The Special Prominence of the Written Word”). Nonetheless, even great and not-so-great works of literature would be considered harmful by Zillmann's logic. Molly Bloom awaits Boylan in bed (on her back, “passively,” as it were) with lascivious thoughts that flow from her sexual nature and her desire to have Boylan “take” her. Ulysses (1966). Of course, one may also interpret Molly Bloom in non-passive terms, which raises another point presently discussed.Google Scholar

139 It is still true, however, that most pornography has been written for men, as Andrea Dworkin stresses. The famous Kinsey study found that men were aroused more by sexual images than women. But more recent studies have negated this finding. See discussion in J. Hyde, Understanding Human Sexuality (1986), at 402–404.Google Scholar

140 Sartre confronted the dilemma of reconciling the individual and the social in Search for a Method (H. Barnes, trans., 1968), which was written to account for the limitations of his previous focus on the individual in Being and Nothingness (H. Barnes, trans., 1969). The reconciliation is difficult, but it cannot be forsaken. MacKinnon and Dworkin distort reality by forsaking the individual experience as a form of liberal bias. According to MacKinnon, sexuality is determined by social arrangements, not by choice (the liberal view) or by biology (the Freudian view). See Feminism Unmodified, supra note 14, Ch. 3. One is tempted to ask how she is able to divine the truth about such mysterious origins.Google Scholar

141 1986 Commission Report, supra note 8, at 420. The “private action” recommendations are in Part Two, Chapter 8, of the Report, at 419–432.Google Scholar

142 See. e.g., New York Times v. Sullivan, 376 U.S. 254 (1964), at 270 (on the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”).Google Scholar

143 1986 Commission Report, at 423–425.Google Scholar

144 Hertzberg, supra note 7, at 24.Google Scholar

145 Sgt. Thomas Rodgers (Indianapolis Police Dept.) interview, June 1985.Google Scholar

146 Greg Dixon (Baptist Temple) interview, Indianapolis, March 1985.Google Scholar

147 For instance, seventy major church groups met in Manhattan in July 1986, led by Commissioner Father Bruce Ritter, to organize to carry out the Commission's rmission's recommendations. Leaders called the mee's recommendations. Leaders called the meeting an “historic occasion.” Church Leaders Make a Target of Pornography, New York Times, July 26, 1986. See also National Law Journal, Hometown Porn Wars Escalating, July 28, 1986, at 1.Google Scholar

148 See, e.g., the differing treatments of Harry Clor, Obscenity and Public Morality: Censorship in a Liberal Society (1969) and Susan Sontag, The Pornographic Imagination, in Hughes, ed., Perspectives on Pornography, supra note 56, at 131–169. Clor, a conservative, criticizes pornography, yet also sees a role for literature that borders pornography. Sontag stresses the element of art and intellectual experimentation in literary pornography: see at 381–385. See also James Q. Wilson, Violence, Pornography and Social Science, in Rist, ed., The Pornography Controversy, supra note 9, at 243: the pornography controversy cannot be settled on scientific grounds, but only on moral and philosophical grounds.Google Scholar

149 1986 Commission Report, supra note 8, at 381–385.Google Scholar

150 For an overview of the therapeutic uses of pornographic material, see Therapeutic Uses of Sexually Explicit Material, in M. Yaffe and E. Nelson, eds., The Influence of Pornography on Behavior, supra note 64, at 119. See also discussion in Lynn, supra note 8, at 48–56.Google Scholar

151 Money, cited in Lynn, Id., at 55.Google Scholar

152 In a related respect, pornography may also be beneficial as a substitute for people who are unable to experience normal sexual relations (the sexually inadequate, the shy and introverted, the unattractive or unappealing, etc.). See Lynn, Id., at 56; Murphy, The Value of Pornography, 10 Wayne Law Rev. 655 (1964), 661, Massey, A Marketing Analysis of Sex-Oriented Materials, 4 Technical Report of the Commission on Obscenity and Pornography 55 (1970). Again, this point of view actually confirms the conservative lament concerning the abolition or compromise of the reality principle. But the conservative view can be unduly harsh in the cases under consideration at the moment.Google Scholar

153 The major work in this regard is Morse Peckham's exceptional work, Art and Pornography: An Experiment in Explanation (1969). Peckham depicts pornography in a dialectical sociological and psychological fashion and maintains that it serves some of the same functions as art (even if it is not always art, per se). Pornography can provide crucial psychic and social functions by offering means of compensating for the inadequacies of self engendered by any social order. The Marxist view of pornography is similar to Peckham's, though it also differs. According to some Marxist pornography theories, a pornography of male domination reflects the opposite of the feminist assumption: objective male powerlessness in advanced capitalist society. A pornography of dominance offers subjective compensation for an objective status of powerlessness. See Soble, Pornography: Marxism. Feminism, and the Future of Sexuality, supra note 19. Peckham's theory is more profound because it understands the need for pornography (and its ilk) as universal in history, whereas the Marxist view ends in n utopic hope that sexuality and society will achieve total reconciliation in the future state of social justice. Thus, making an accommodation with pornography entails accepting the limits of the human condition (this is one important assumption of liberal democracy). It is no accident that Andrea Dworkin's “totalistic” theory of pornography is premised on a utopic ethic of absolute ends which denies the validity of history and human beings as we have known them. In Woman Hating (1974), one of her first books, Dworkin concludes by affirming that “The object is cultural transformation. The object is the development of a new kind of human being and a new kind of human community … nothing short of everything will really do.” (at 192). Another functional view of pornography emerges in Kendrick's recent analysis in The Secret Museum. Kendrick depicts the growth of pornography as a function of the development of modernism and post-modernism. From this perspective, pornography is a function of such larger processes as the growth of printing and visual technology (which make sexual depictions more available), the sundering of the distinction between public and private realities in mass society, and the disintegration of traditional restraints on the self (some might call this the disintegration of the self).Google Scholar

154 Lynn, supra note 8, at 85. See, for instance, the interesting treatment of the personal, subjective meaning of words—especially those pertaining to sexuality, the body, the soul, and the self, in Milan Kundera's novel, The Unbearable Lightness of Being (M. Heim, trans., 1985), Part Three, Words Misunderstood.Google Scholar

155 MacKinnon calls her approach that focuses on essential social meaning the “dominance approach.” See Feminism Unmodified, supra note 14, Ch. 2. See also Ch. 3 (the liberal individualistic approach merely reinforces the social inequality that underlies patriarchy).Google Scholar

156 See, e.g., S. Sontag, The Pornographic Imagination, supra note 148. See also José Ortega y Gassett, The Dehumanization of Art (1948). (Twentieth century art has become “dehumanized” in a broad sense because of several complex factors that elude simplistic moral judgment, including the drive of each new generation to surpass its predecessors in daring and experimentation. This notion is consistent with Ortega's broader understanding of historical development.) Ortega's analysis is akin to Sontag's, although he has often been labeled a “conservative.”Google Scholar

157 Regina v. Hicklin, 3 QB 360 (1868), 363.Google Scholar

158 See, e.g., David Alexander Scott, Pornography and Its Effects on Family, Community, and Culture (Family Policy Insights: Free Congress Research and Education Fund, Inc., 1985): “Pornography can lead to sexual deviancy for disturbed and normal people alike.” (at 1). This report circulated widely among anti-porn groups, who cited it to “prove” that scientific studies have demonstrated that all pornography is harmful. According to Edward Donnerstein, “This [the Scott report] is a misuse and misunderstanding of data.” Donnerstein interview (Madison), July, 1985. Scott did play a role in the Washington hearings of the 1986 Attorney General's Commission, handing out questions to the commissioners for use in questioning witnesses. Yet he was denied access to the Commission thereafter. See Nobile and Nadler, supra note 77, at 62–63.Google Scholar

159 See Brandenburg v. Ohio. 395 U.S. 444 (1969). See also: Rabban, , “The Emergence of Modern First Amendment Doctrine,” 50 Univ. Chicago Law Rev. 1205 (1983); and Ortega, The Revolt of the Masses (Kerrigan Trans., 1985): liberty entails taking certain risks and accepting a certain amount of harmful consequences because liberty itself is a significant value, and its loss or undue restriction must itself be calculated as a loss to society (in this work, of course, Ortega also disdains the practice of irresponsible liberty, which disregards the reciprocal relation between liberty and duty).CrossRefGoogle Scholar

160 In this sense it is a species of group libel law, which is inherently suspect under the modern doctrine of free speech even though the Supreme Court has never expressly declared group libel laws unconstitutional. See Beauharnais v. Illinois, 343 U.S. 250 (1952). The lower federal courts refused to apply Beauharnais in the Skokie litigation, correctly stating that it was now inconsistent with modern free speech doctrine. Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). MacKinnon has called for the return to Beauharnais in many writings. See, e.g., Pornography and Speech, supra note 21, at 29, note 51. Briefs for the city of Indianapolis in the ordinance case also used Beauharnais for support. See, e.g., American Booksellers Ass'n v. Hudnut, Brief of Defendants-Appellants, US. Court of Appeals for the Seventh Circuit, No. 84–3147, p. 32; Id., Brief of Amicus Curiae, Feminists Against Pornography, at 4.Google Scholar

161 Lynn, supra note 8, at 87–89. See also Olivia N. v. National Broadcasting Co., 126 Cal. App. 3d 488, cert. denied, 458 U.S. 1108 (imitative acts following a violent sex scene in a television show not grounds for negligence action because of chilling effect on First Amendment values and because inconsistent with modern free speech doctrine).Google Scholar

162 American Booksellers Association. Inc., v. Hudnut, 598 F. Supp. 1316 (1984), at 1337.Google Scholar

163 American Booksellers Association, Inc., v. Hudnut, 771 F.2d 323 (7th Cir. 1985).Google Scholar

164 Walkowitz, Male Vice and Female Virtue: Feminism and the Politics of Prostitution in Nineteenth-Century Britain, in A. Snitow, C. Stansell, and S. Thompson. eds., Powers of Desire: The Politics of Sexuality (1983), at 419–438.Google Scholar

165 Nobile and Nadler, supra note 77, at 95–96.Google Scholar

166 K. Jones, The Eye of the Beholder: Pornographic Discourse and Feminist Criticism. Paper presented at American Political Science Association Annual Meeting, 1985 (New Orleans), at 12. See also Foucault's analysis in Power/Knowledge of Bentham's surveillance ideology in Panopticon. Power/Knowledge: Selected Interviews and Other Writings, 1972–77 (C. Gordon, ed., 1980). at 152. See also writings in Burstyn, ed., Women Against Censorship (1985).Google Scholar

167 Justice Frankfurter's phrase in Butler v. Michigan, 352 U.S. 380 (1957), in which the Court struck down a statute that banned sexual material sales to the general public because of the possible effects on children. Frankfurter meant that indiscriminate approaches to pornography could unduly sacrifice other values.Google Scholar

168 Cass Sunstein suggests a similar new exception in a recent article. His position is that “In short regulable pornography must (a) be sexually explicit, (b) depict women as enjoying or deserving some form of physical abuse, and (c) have the purpose and effect of producing sexual arousal.” This definition integrates feminist and conservative doctrines. See Sunstein, Pornography and the First Amendment, Duke, L. J. (1986) 589, 592. See also Note, Anti-Pornography Laws and First Amendment Values, 98 Harv. L. Rev. 460 (1984), 476–481.Google Scholar

169 The same thing might be accomplished by a slight stretching of the concept of obscenity to include explicit violence mixed with explicit sexual depiction. Researchers have found R-slasher films (sexually explicit violence) to be among the most disturbing films in terms of correlation with aggression in laboratory settings. See Donnerstein, Linz, and Penrod, The Question of Pornography, supra note 1, Ch. 6.Google Scholar

170 458 U.S. 747 (1982). Indeed, Schauer has expressed support, but also some disconcertion, for the Court's need to create a new exception in Ferber and, possibly, in future cases. See Schauer, Codifying the First Amendment: New York v. Ferber. 1982 S. Ct. Rev. 284. Another interpretation, however, is that Ferber simply stands for the proposition that the First Amendment does not protect material that itself consists of illegal activity (e.g., pornography made with children, who are presumed, irrefutably, to have not consented to being used). A similar case in this regard is Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) (publishing “help-wanted” advertisements in gender columns not protected by the First Amendment because gender discrimination is illegal). From the perspective of this interpretation, violent pornography could not be abridged unless it were made with unconsenting persons or its production otherwise violated the law.Google Scholar

171 The supporters of the feminist ordinance did, however, claim that Ferber's logic should be applied to adult pornography because adult women cannot be presumed to have consented to be used in the production of pornography. This point is predicated on the contention that women confront domination in society at large.Google Scholar

172 See Clor, H., Mill and Millians on Liberty and Moral Character, 47 Review of Politics 3 (1985). Pornography is not political discourse in itself, despite the fact that Dworkin and MacKinnon define it that way.Google Scholar

173 Sunstein makes such an analysis in Pornography and the First Amendment. supra note 168.Google Scholar

174 Nobile and Nadler represent this position in the libertarian camp. Not only do they reject any restraints on sexual material (including even the traditional obscenity exception to the First Amendment, which can hardly be accused of stifling sexual materials from the vantage point of the 1980s), but they treat all opposing views as presumptively illegitimate and intolerable. Their lack of tolerance in the name of tolerance is ironic and even undemocratic. The American Civil Liberties Union leaders in Minneapolis and Indianapolis also took absolutist positions on the ordinance from the start, refusing to really consider the arguments of the opposition.Google Scholar