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                                                                                LAW, Page 52

Passions over Pornography


A bitter debate divides feminism and some of its liberal backers.
At issue: free speech vs. the civil rights of abused women.

By JOHN ELSON -- Reported by Cathy Booth/Miami, Julie Johnson/
Washington and Andrea Sachs/Boston


    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.