A First Amendment Junkie
It is no news that many women are defecting from the ranks of civil libertarians on the issue of obscenity. The conviction of Larry Flynt, publisher of Hustler magazine — before his metamorphosis into a born-again Christian — was greeted with unabashed feminist approval. Harry Reems, the unknown actor who was convicted by a Memphis jury for conspiring to distribute the movie Deep Throat, has carried on his legal battles with almost no support from women who ordinarily regard themselves as supporters of the First Amendment. Feminist writers and scholars have even discussed the possibility of making common cause against pornography with adversaries of the women’s movement — including opponents of the Equal Rights Amendment and “right-to-life” forces.
All of this is deeply disturbing to a woman writer who believes, as I always have and still do, in an absolute interpretation of the First Amendment. Nothing in Larry Flynt’s garbage convinces me that the late Justice Hugo L. Black was wrong in his opinion that “the Federal Government is without any power whatsoever under the Constitution to put any type of burden on free speech and expression of ideas of any kind (as distinguished from conduct).” Many women I like and respect tell me I am wrong; I cannot remember having become involved in so many heated discussions of a public issue since the end of the Vietnam War. A feminist writer described my views as those of a “First Amendment junkie.”
Many feminist arguments for controls on pornography carry the implicit conviction that porn books, magazines, and movies pose a greater threat to women than similarly repulsive exercises of free speech pose to other offended groups. This conviction has, of course, been shared by everyone — regardless of race, creed, or sex — who has ever argued in favor of abridging the First Amendment. It is the argument used by some Jews who have withdrawn their support from the American Civil Liberties Union because it has defended the right of American Nazis to march through a community inhabited by survivors of Hitler’s concentration camps.
If feminists want to argue that the protection of the Constitution should not be extended to any particularly odious or threatening form of speech, they have a reasonable argument (although I don’t agree with it). But it is ridiculous to suggest that the porn shops on 42nd Street are more disgusting to women than a march of neo-Nazis is to survivors of the extermination camps.
5 The arguments over pornography also blur the vital distinction between expression of ideas and conduct. When I say I believe unreservedly in the First Amendment, someone always comes back at me with the issue of “kiddie porn.” But kiddie porn is not a First Amendment issue. It is an issue of the abuse of power — the power adults have over children — and not of obscenity. Parents and promoters have no more right to use their children to make porn movies than they do to send them to work in coal mines. The responsible adults should be prosecuted, just as adults who use children for back-breaking farm labor should be prosecuted.
Susan Brownmiller, in Against Our Will: Men, Women, and Rape, has described pornography as “the undiluted essence of antifemale propaganda.” I think this is a fair description of some types of pornography, especially of the brutish subspecies that equates sex with death and portrays women primarily as objects of violence.
The equation of sex and violence, personified by some glossy rock record album covers as well as by Hustler, has fed the illusion that censorship of pornography can be conducted on a more rational basis than other types of censorship. Are all pictures of naked women obscene? Clearly not, says a friend. A Renoir nude is art, she says, and Hustler is trash. “Any reasonable person” knows that.
But what about something between art and trash — something, say, along the lines of Playboy or Penthouse magazines? I asked five women for their reactions to one picture in Penthouse and got responses that ranged from “lovely” and “sensuous” to “revolting” and “demeaning.” Feminists, like everyone else, seldom have rational reasons for their preferences in erotica. Like members of juries, they tend to disagree when confronted with something that falls short of 100 percent vulgarity.
In any case, feminists will not be the arbiters of good taste if it becomes easier to harass, prosecute, and convict people on obscenity charges. Most of the people who want to censor girlie magazines are equally opposed to open discussion of issues that are of vital concern to women: rape, abortion, menstruation, contraception, lesbianism — in fact, the entire range of sexual experience from a woman’s viewpoint.
10 Feminist writers and editors and filmmakers have limited financial resources: Confronted by a determined prosecutor, Hugh Hefner1 will fare better than Susan Brownmiller. Would the Memphis jurors who convicted Harry Reems for his role in Deep Throat be inclined to take a more positive view of paintings of the female genitalia done by sensitive feminist artists? Ms. magazine has printed color reproductions of some of those art works; Ms. is already banned from a number of high school libraries because someone considers it threatening and / or obscene.
Feminists who want to censor what they regard as harmful pornography have essentially the same motivation as other would-be censors: They want to use the power of the state to accomplish what they have been unable to achieve in the marketplace of ideas and images. The impulse to censor places no faith in the possibilities of democratic persuasion.
It isn’t easy to persuade certain men that they have better uses for $1.95 each month than to spend it on a copy of Hustler. Well, then, give the men no choice in the matter.
I believe there is also a connection between the impulse toward censorship on the part of people who used to consider themselves civil libertarians and a more general desire to shift responsibility from individuals to institutions. When I saw the movie Looking for Mr. Goodbar, I was stunned by its series of visual images equating sex and violence, coupled with what seems to me the mindless message (a distortion of the fine Judith Rossner novel) that casual sex equals death. When I came out of the movie, I was even more shocked to see parents standing in line with children between the ages of ten and fourteen.
I simply don’t know why a parent would take a child to see such a movie, any more than I understand why people feel they can’t turn off a television set their child is watching. Whenever I say that, my friends tell me I don’t know how it is because I don’t have children. True, but I do have parents. When I was a child, they did turn off the TV. They didn’t expect the Federal Communications Commission to do their job for them.
I am a First Amendment junkie. You can’t OD on the First Amendment, because free speech is its own best antidote.
(the second reading)
Susan Brownmiller (b. 1935), a graduate of Cornell University, is the founder of Women against Pornography and the author of several books, including Against Our Will: Men, Women, and Rape (1975). The essay reprinted here is from Take Back the Night (1980), a collection of essays edited by Laura Lederer. The book has been called “the manifesto of antipornography feminism.”
Let’s Put Pornography Back in the Closet
Free speech is one of the great foundations on which our democracy rests. I am old enough to remember the Hollywood Ten, the screenwriters who went to jail in the late 1940s because they refused to testify before a congressional committee about their political affiliations. They tried to use the First Amendment as a defense, but they went to jail because in those days there were few civil liberties lawyers around who cared to champion the First Amendment right to free speech, when the speech concerned the Communist Party.
The Hollywood Ten were correct in claiming the First Amendment. Its high purpose is the protection of unpopular ideas and political dissent. In the dark, cold days of the 1950s, few civil libertarians were willing to declare themselves First Amendment absolutists. But in the brighter, though frantic, days of the 1960s, the principle of protecting unpopular political speech was gradually strengthened.
It is fair to say now that the battle has largely been won. Even the American Nazi Party has found itself the beneficiary of the dedicated, tireless work of the American Civil Liberties Union. But — and please notice the quotation marks coming up — “To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a misuse of the great guarantees of free speech and free press.”
I didn’t say that, although I wish I had, for I think the words are thrilling. Chief Justice Warren Burger said it in 1973, in the United States Supreme Court’s majority opinion in Miller v. California. During the same decades that the right to political free speech was being strengthened in the courts, the nation’s obscenity laws also were undergoing extensive revision.
5 It’s amazing to recall that in 1934 the question of whether James Joyce’s Ulysses should be banned as pornographic actually went before the Court. The battle to protect Ulysses as a work of literature with redeeming social value was won. In later decades, Henry Miller’s Tropic books, Lady Chatterley’s Lover, and the Memoirs of Fanny Hill also were adjudged not obscene. These decisions have been important to me. As the author of Against Our Will, a study of the history of rape that does contain explicit sexual material, I shudder to think how my book would have fared if James Joyce, D. H. Lawrence, and Henry Miller hadn’t gone before me.
I am not a fan of Chatterley or the Tropic books, I should quickly mention. They are not to my literary taste, nor do I think they represent female sexuality with any degree of accuracy. But I would hardly suggest that we ban them. Such a suggestion wouldn’t get very far anyway. The battle to protect these books is ancient history. Time does march on, quite methodically. What, then, is unlawfully obscene, and what does the First Amendment have to do with it?
In the Miller case of 1973 (not Henry Miller, by the way, but a porn distributor who sent unsolicited stuff through the mails), the Court came up with new guidelines that it hoped would strengthen obscenity laws by giving more power to the states. What it did in actuality was throw everything into confusion. It set up a three-part test by which materials can be adjudged obscene. The materials are obscene if they depict patently offensive, hard-core sexual conduct; lack serious scientific, literary, artistic, or political value; and appeal to the prurient interest of an average person — as measured by contemporary community standards.
“Patently offensive,” “prurient interest,” and “hard-core” are indeed words to conjure with. “Contemporary community standards” are what we’re trying to redefine. The feminist objection to pornography is not based on prurience, which the dictionary defines as lustful, itching desire. We are not opposed to sex and desire, with or without the itch, and we certainly believe that explicit sexual material has its place in literature, art, science, and education. Here we part company rather swiftly with old-line conservatives who don’t want sex education in the high schools, for example.
No, the feminist objection to pornography is based on our belief that pornography represents hatred of women, that pornography’s intent is to humiliate, degrade, and dehumanize the female body for the purpose of erotic stimulation and pleasure. We are unalterably opposed to the presentation of the female body being stripped, bound, raped, tortured, mutilated, and murdered in the name of commercial entertainment and free speech.
These images, which are standard pornographic fare, have nothing to do with the hallowed right of political dissent. They have everything to do with the creation of a cultural climate in which a rapist feels he is merely giving in to a normal urge and a woman is encouraged to believe that sexual masochism is healthy, liberated fun. Justice Potter Stewart once said about hard-core pornography, “You know it when you see it,” and that certainly used to be true. In the good old days, pornography looked awful. It was cheap and sleazy, and there was no mistaking it for art.
Nowadays, since the porn industry has become a multimillion dollar business, visual technology has been employed in its service. Pornographic movies are skillfully filmed and edited, pornographic still shots using the newest tenets of good design artfully grace the covers of Hustler, Penthouse, and Playboy, and the public — and the courts — are sadly confused.
The Supreme Court neglected to define “hard-core” in the Miller decision. This was a mistake. If “hard-core” refers only to explicit sexual intercourse, then that isn’t good enough. When women or children or men — no matter how artfully — are shown tortured or terrorized in the service of sex, that’s obscene. And “patently offensive,” I would hope, to our “contemporary community standards.”
Justice William O. Douglas wrote in his dissent to the Miller case that no one is “compelled to look.” This is hardly true. To buy a paper at the corner newsstand is to subject oneself to a forcible immersion in pornography, to be demeaned by an array of dehumanized, chopped-up parts of the female anatomy, packaged like cuts of meat at the supermarket. I happen to like my body and I work hard at the gym to keep it in good shape, but I am embarrassed for my body and for the bodies of all women when I see the fragmented parts of us so frivolously, and so flagrantly, displayed.
Some constitutional theorists (Justice Douglas was one) have maintained that any obscenity law is a serious abridgement of free speech. Others (and Justice Earl Warren was one) have maintained that the First Amendment was never intended to protect obscenity. We live quite compatibly with a host of free-speech abridgements. There are restraints against false and misleading advertising or statements — shouting “fire” without cause in a crowded movie theater, etc. — that do not threaten, but strengthen, our societal values. Restrictions on the public display of pornography belong in this category.
15 The distinction between permission to publish and permission to display publicly is an essential one and one which I think consonant with First Amendment principles. Justice Burger’s words which I quoted above support this without question. We are not saying “Smash the presses” or “Ban the bad ones,” but simply “Get the stuff out of our sight.” Let the legislatures decide — using realistic and humane contemporary community standards — what can be displayed and what cannot. The courts, after all, will be the final arbiters.