The MacKinnon-Dworkin Ordinance

Several decades ago, Catharine MacKinnon and Andrea Dworkin formulated and advocated for legislation to restrict pornography. Repudiating the obscenity approach, the legislation was shaped as addressing the equal civil rights of women. This chapter explores their ordinance and criticizes important aspects of it. Even though many critics of the ordinance exaggerate the legal restrictions that it imposes, MacKinnon’s claim that the law has nothing in common with censorship is rejected. And the ordinance would arguably make actionable the display of works belonging to the canon of great Western art, notwithstanding MacKinnon’s contention to the contrary.

Defenses of Pornography

This chapter addresses criticisms of the sex equality approach from those who argue that pornography is a right flowing from a right to freedom of expression—the free speech defense of pornography, by self-styled feminists, who claim that pornography (its making and its use) is a part of sexual liberation for women, and by gays and lesbians insofar as they allege it plays an important role in the communities of sexual minorities. Finally, I examine the arguments to those, like Altman, who locate a “right to pornography” in the right to sexual autonomy. I argue that none of these arguments sufficiently establishes their conclusions.

Evidence and Harm

This chapter examines the evidence for the central contention of anti-pornography feminism, namely, that pornography causes harm to women. The chapter examines experimental and population-level studies and argues that the evidence for the relevant sort of causality is weak. The experimental studies suffer from serious methodological flaws, including the failure to have their male subjects masturbate with the pornographic materials to which the studies expose them. Population-level studies are crucial to establishing the relevant causal claim about harm to women, but the existing studies are sparse and fail to control for potentially relevant variables. The weakness of the body of evidence regarding a link between pornography and harm to women is highlighted by contrasting the case of pornography with that of alcohol consumption and social harm, where the links have been scientifically established. Moreover, even though alcohol consumption is not an exercise of any basic liberty and the link to extensive social harm is strongly supported by scientific studies, legal suppression of such consumption is a morally objectionable infringement on the liberty of adults. Pornography consumption is the exercise of a basic liberty, and, in light of the comparatively weak evidence of pornography’s social harm, legal suppression of such material amounts to a much clearer instance of the objectionable curtailment of individual liberty. The chapter concludes with an examination of materials that are not sexually explicit but depict violence against women.

Obscenity and Pornography

The law traditionally treats sexually explicit material under the category of “obscenity.” This chapter explains and criticizes the development of obscenity doctrine and contrasts the legal understanding of obscenity with a feminist account of pornography. Several definitions of “pornography” are examined, some feminist and some not so. The chapter argues that, although the feminist definitions have important advantages over non-feminist ones and anti-pornography feminism is superior to obscenity doctrine, the claim made by many feminists that pornography has the power to eroticize inequality is dubious. The chapter concludes with an account of how and why pornography consumption is a form of sexual activity.

Sex, Speech, and Autonomy

Disagreements about pornography have revolved around questions of freedom of speech and expression. This chapter proposes to rethink those disagreements so that the right of sexual autonomy becomes a decisive consideration. The re-thinking is motivated by two ideas. First, much of the pornography that circulates in today’s society, especially on the Internet, is not plausibly regarded as protected by freedom of expression. Second, that very same pornography is used entirely for purposes of sexual arousal and release and so directly involves an individual’s authority to control his own sex life. Setting the stage for the subsequent argument that a right to pornography should be understood as an element of the right of sexual autonomy, this chapter examines the nature of rights and the reasons why the right to control one’s sex life is especially weighty.

Conclusion

The conclusion of Watson’s contribution engages with the ethical questions concerning personal pornography use. Watson notes that she cannot fully engage with the ethical dimensions of pornography use but raises a set of questions for reflection from the reader. How can one know whether the pornography one is masturbating to is of women who have been forced or coerced or otherwise compelled into pornography performances? Rarely, if ever, can one know the answers to these questions. Thus, Watson suggests that users of pornography may well be complicit in an institution of sex inequality and that such complicity is often at odds with their explicit egalitarian ideals.

Pornography

This chapter provides an empirical analysis of the pornography industry. Facts concerning its growth and evolution are explained. The current financial status pornography industry is shown and compared with other mega-industries. The claim that it sexualizes inequality is explained and demonstrated through documenting the content of the materials sold and used, as reported by the industry itself. Further, the empirical evidence of the harms of pornography is provided and examined. Production harms and consumptions harms are distinguished and evidence of each is given. Criticisms of the empirical evidence are explained and rebutted. Finally, it is argued that the ordinances provide new and different legal grounds to address the harms of pornography.

Sex, Equality, and Pornography

This chapter explains, develops, and defends a sex equality approach to pornography, in which pornography is understood as a practice of sex-based inequality and sex discrimination. The chapter proceeds by distinguishing formal and substantive equality in the context of law. Next, an analysis of gender and sexuality are provided, in which it is argued that gender is hierarchically organized according to dominant cultural norms of heterosexuality. Building on these arguments, a reconstruction and defense of the civil rights approach to pornography, authored by Catharine A. MacKinnon and Andrea Dworkin, is given. Finally, various criticisms and misinterpretations of the ordinances and their meaning are considered and dismissed.

Introduction

For the past half century and more, the citizens of free and democratic societies have debated questions concerning the production, sale, and consumption of pornography. The debates have addressed such issues as whether there is a fundamental right to access pornography and whether such materials are sufficiently harmful to justify their legal regulation. This volume is a contribution to those debates. It proceeds from the premise that considerations of equality between women and men are foundational to any defensible view concerning whether and how to legally regulate pornography....

Conclusion: The Big Historical Picture

Social norms regarding sex and its representations have changed radically in the West, from ancient times to the present. The sexually permissive norms of ancient Greece and Rome were replaced by the highly restrictive norms of the Christian world. In Greece and Rome, sexually explicit images were routinely displayed in public and private settings. Prostitution and pederasty were permitted by prevailing norms. By contrast, Christian doctrine and culture regarded it as a sin to engage in sex outside of marriage and for reasons other than procreation. Sexually explicit images were condemned and suppressed. The sexual revolution of the 1960s, in turn, fundamentally altered the sexual norms of society, relaxing many of the previous restrictions but without returning to the norms of the ancient pagan world. This chapter places the current issue of pornography in the context of those large-scale historical changes and explains how the issue is, in a certain sense, a moral one.