PORNOPHOBIA, PORNOPHILIA, AND THE

NEED FOR A MIDDLE PATH

A Review Essay of Nadine Strossen's DefendingPornography:
Free Speech, Sex, and the Fightfor Women's Rights
TERESA M. BRUCE*

INTRODUCTION
Catharine A. MacKinnon's legal scholarship has produced
"dominance theory," a feminist discourse in which women's subordination is perceived to result from male hegemony. 1 Some of her
2
most controversial works argue for the regulation of pornography.
Professor MacKinnon claims that the production, distribution, and
consumption of pornography "causes ... [the] violence and discrimination that define the treatment and status of half of the popu3
lation."
In 1983, she and Andrea Dworkin drafted a model antipornography law4 that would authorize private citizens to bring civil
Staff Attorney, Paul, Weiss, Rifldnd, Wharton & Garrison;J.D., 1996 Cornell
Law School; B.S.,
1988, Colorado State University. I would like to thank Professor Steven H. Shiffiin and the students in his Spring 1996 Constitutional Law and Political Theory seminar, for inspiring this Essay.
1. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 32-45 (1987) (arguing gender
equality has been incorrectly categorized as arising from gender differences, rather than a system of dominance where men set the standards in their own image).
2. See generallyCATHARINEA. MACKINNON, ONLYWORDS (1993); Catharine A. MacKinnon,
Pornography, CivilRights and FreeSpeech, 20 HARV. C.R.-C.L. L. REV. 1 (1985); Catharine A. MacK-

innon, Not a Moral Issue, 2 YALE L. & POL'Y REV. 321 (1984) (each discussing, at least in part,
constitutionality of model anti-pornography statute co-drafted with Andrea Dworkin).
3. MACKINNON, supranote 1, at 147 (footnote omitted); see also MACKINNON, supranote 1,

at 264 n.9 (citing studies supporting her assertion).

4. MACKINNON, supra note 1, at 262 n.1 (stating that the law would apply to "the graphic
sexually explicit subordination of women ... in pictures or in words, that also includes one or
more of the following: (i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii)
women are presented as sexual objects who experience sexual pleasure in being raped; or (iv)
women are presented as sexual objects tied up or cut up or mutilated or bruised or physically
hurt; or (vi) women's body parts-including but not limited to vaginas, breasts, and buttocksare exhibited, such that women are reduced to those parts; or (vii) women are presented as

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suits for damages and injunctive relief if they could demonstrate that

exposure to pornography caused them to be subjected to an assault

or physical attack.5 Germany, the Philippines, Sweden, the State of
Massachusetts, and several U.S. municipalities, including Minneapolis, Minnesota, have considered such laws. 6 In 1992, in Butler v. The
Queen, the Canadian Supreme Court incorporated some of the
"MacKinnonite" 7 language into Canada's obscenity laws, outlawing
8
sexually explicit materials that "degrade" or "dehumanize."
Professor MacKinnon's advocacy of anti-pornography laws has engendered vigorous debate in the legal and feminist communities,
and has provided an impetus for defenders of pornography. Notably, in 1995, Nadine Strossen, president of the American Civil Liberties Union, published Defending Pornography:Free Speech, Sex, and the
Fight for Women's Rights.9 This Essay reviews Ms. Strossen's manuscript. Part I presents her defense of unregulated pornography; Part
II explores the strengths and weaknesses in her argument; and Part
I concludes that the feminist community-caught between a
McCarthy-like "porn scare" on the one hand, and a veritable celebration of patriarchal propaganda on the other-desperately needs to
forge a middle path.

whores by nature; or (viii) women are presented being penetrated by objects or animals; or (ix)
women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior,
bleeding, bruised, or hurt in a context that makes these conditions sexual.)" The law would
extend to "the use of men, children or transsexuals in the place of women." L See infra note
34.
5. NADINE STROSSEN, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE FIGHT FOR
WOMEN'S RIGHTs 75 (1995) (indicating that persons could also bring claims against traffickers
in pornography, those who coerce others into the creation of pornography, or those who force
pornography on others).
6. Id. at 77. The other municipalities include: Los Angeles County, California; Indianapolis, Indiana; Cambridge, Massachusetts; Suffolk County, New York; Bellingham, Washington;
and Madison, Wisconsin. Id.
7. For simplicity, this Essay will use the term "MacKinnonite" to describe the model ordinance co-drafted by Catharine MacKinnon and Andrea Dworkin.
8. STROSSEN, supranote 5, at 19 (referring to Butler v. The Queen, [1992] S. C. R. 452
(Can.)); see infra note 28 and accompanying text (discussing Canadian law which was so strictly
construed that books like MacKinnon's were deemed obscene.
9. STROSSEN, supra note 5.

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PORNOPHOBIA, PORNOPHILIA

I. BACKGROUND: NADINE STROSSEN'S DEFENSE OF

PORNOGRAPHY
Ms. Strossen defends pornography on three grounds. First, she
defends it in terms of the law, claiming that MacKinnonite regulations on pornography would contravene well-established constitutional doctrine. 10 Second, she defends it in terms of social policy,
claiming that the suppression of pornography would have detrimental effects on the women's movement." Third, she defends it existentially, claiming that attacks on pornography would perpetuate a
diseased version of human sexuality. 12 This Section discusses each of
these arguments in turn.
A. A Legal Defense
According to Ms. Strossen, regulations on pornography violate two
cardinal tenets of constitutional law. First, they violate the "bedrock
principle" of viewpoint neutrality.' 3 This principle "holds that government may never limit speech just because any listener - or ...
indeed, the majority of the community - disagrees with or is offended by its content or the viewpoint it conveys." 14 Second, they
violate the "clear and present danger test," which insures that "a restriction on speech can be justified only when necessary to prevent
actual or imminent harm, such as violence or injury to others."15 Because pornography arguably expresses a political viewpoint on gender equality, 16 and because it seems to have no proven connection to
sexual violence, 17 government cannot constitutionally suppress it. i8
10. See STROSSEN, supra note 5, at 40-48 (discussing "preferred" status in hierarchy of Constitutional rights).
11. See STROSSEN, supra note 5, at 245 ("[I]t would perpetuate demeaning stereotypes
about women [and the] ... disempowering notion that women are essentially victims; ... it

would harm women's efforts to develop their own sexuality[.]").

12. See STROSSEN, supra note 5, at 107-18 (in part describing MacKinnonite theory as arguing that patriarchal society makes it impossible for women to freely consent to sex).
13. STROSsEN, supranote 5, at 41.
14. STROsmEN, supra note 5, at 41.
15. Nadine Strossen, Hate Speech and Pornography:Do We Have to Choose Between Freedom of

Speech and Equaliy?, 46 CASEW. RES. L. REV. 449, 455 (1996).

16. See STROSSEN, supra note 5, at 38 (noting that courts have characterized pornography
subject to regulation under MacKinnonite laws as political speech, the most protected type of
speech).
17. See STROSSEN, supra note 5, at 251 (relating the National Research Council's finding
that "[d]emonstrated empirical evidence links between pornography and sex crimes ... are
weak or absent").
18. See STROSSEN, supranote 5, at 61-62 (arguing that MacKinnonite laws would be unconstitutional).

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In Ms. Strossen's view, the Supreme Court has evidenced in these

principles its understanding that "in a free society, the appropriate
response to speech with which one disagrees is not censorship but
"19
counterspeech - more speech, not less.
B. A Defense Based on PublicPolicy
The majority of Ms. Strossen's arguments in defense of pornography lie in the area of public policy. She posits that regulations on
pornography "would be enforced in a way that discriminates against
the least popular, least powerful groups in our society, including
feminists and lesbians." 20 She finds no comfort in the fact that private citizens would enforce MacKinnonite laws. In her view, the government would ultimately decide which sexual expressions subordinate and which liberate, even though the "crackdown on particular
words or images ... [would be initiated by] citizen vigilante [s] rather
than ... [by] government agents." 2' The Supreme Court itself has

recognized that "'[tihe fear of damage awards' in civil liability actions 'may be markedly more inhibiting' to free expression 'than the
fear of prosecution under a criminal statute.'" 22 Thus, the Court
has, according to Ms. Strossen, reduced scholarly distinctions between civil and criminal enforcement mechanisms to "semantic
quibbling."23
In support for her argument that anti-pornography ordinances
would suffer from discriminatory enforcement, Ms. Strossen recounts the experiences of several university campuses which have
implemented prohibitions on hate-speech. During an eighteen
month period at the University of Michigan, for example, white students brought more than twenty cases charging African American
students with violating the university's speech code. 24 Of the two
cases that resulted in sanctions for such speech, both "involved the
punishment of speech by or on behalf of black students." 25 The one
student who received a full disciplinary hearing was African American. 26 Similarly, Jewish students were accused of anti-Semitic expres19. STROSSEN, supranote 5, at 454.

20. STRoSSEN, supranote 5, at 245. &ediscussion infranotes22-28 and accompanying text.

21. STROSSEN, supranote 5, at 200.
22. STROSSEN, supranote 5, at 65-66.
23. STROSSEN, supra note 5, at 65.
24. STROSSEN, supranote 5, at 223.
25. STRoSSEN, supranote 5, at 223.

26. STROSSEN, supranote 5, at 223 (indicating that the student had allegedly uttered homophobic and sexist comments).

Spring 1997]

PORNOPHOBIA, PORNOPHILIA

397

sion and Asian American students were accused of anti-black and

homophobic expression. 27 Thus, the very students who should arguably have been empowered by the code, instead found themselves
the targets of punishment.
Ms. Strossen also describes Canada's experience thus far under the
Butler regime, noting that the authorities have used Butler to
"target[] ... gay, lesbian, and women's literature." 28 At least one
court has "said that sex between men in and of itself [is] degrading
and dehumanizing."29 And officials have confiscated books by Langston Hughes, Audre Lorde, Oscar Wilde, and, ironically, by Andrea
30
Dworkin herself.
Ms. Strossen criticizes anti-pornography statutes on several other
grounds as well. She contends that a focus on pornography distracts
feminists from more urgent problems facing women.3 1 She contends that MacKinnonite laws "perpetuate demeaning stereotypes
about women," including stereotypes about women's sexual dysfunctions.32 She contends that such laws harm women who voluntarily
work in the sex industry; 33 that they reinforce political factions with
patriarchal agendas; 34 that they suppress literary and artistic works
valuable to the feminist community;3 5 and that they equate woman27.
28.
29.
30.

STROSSEN,
STROSSEN,
STROSSEN,
STROSSEN,

supra note 5, at 224.

supra note 5, at 231.
supra note 5, at 233 (quoting Karen Busby).
supra note 5, at 237-38; see supra notes 3-4 and accompanying text.

31. STROSSEN, supra note 5, at 245.

32. STROSSEN, supra note 5, at 245.

33. STROSSEN, supra note 5, at 245.
34. When the Minneapolis City Council adopted a MacKinnonite law in 1983, its liberal
Democratic Mayor, Donald Fraser, who had championed women's rights throughout his career,
vetoed it twice on First Amendment grounds. In 1984, when Indianapolis adopted such a law,
"[e]very Democratic member of the Indianapolis City Council voted against the law, while every
Republican member voted for it." The National Organization for Women opposed the law and
"prominent antifeminisC Phyllis Schlafly, who went on a one-woman campaign to defeat the
Equal Rights Amendment in the 1970's, endorsed it. MacKinnon's closest ally in securing the
law's passage was a conservative Republican woman, former Indianapolis City Council member
Beulah Coughenour, who had been a leader of the Stop ERA movement. According to Sheila
Suess Kennedy, a Republican feminist attorney, "[many supporters of this proposal have been
conspicuously indifferent to previous attempts to gain equal rights for women." STROSSEN, supra
note 5, at 77-78.
35. For example, officials removed an exhibit of works by Brazilian artist Zoravia Bettiol-a
woman-from the Menlo Park, California City Hall after a female worker complained that the
female nudes made her feel "violated." STROSSEN, supra note 5, at 135. Professor MacKinnon
herself had a hand in dosing down a video exhibit at the University of Michigan where she was
a featured speaker at a symposium on prostitution. The exhibit contained artistic works which
presented prostitutes' personal views and experiences. Strossen, supra note 5, at 212. At the
University of Arizona in Tucson, students physically attacked graduate student Laurie
Blakeslee's photographic self-portraits, which depicted the artist in her underwear. STROSSEN,
supra note 5, at 23. Ms. Strossen points out that feminist anti-pornography arguments have even
been used to label aerobics videos as "soft-porn." STROSSEN, supra note 5, at 97.

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hood with victimhood.38 Ms. Strossen predicts that such laws will ultimately deprive feminists of a powerful tool for advancing women's
interests by undermining constitutional protection for political expression. 37 She warns that they may even provide sexually violent
criminals with an excuse for their behavior,38 adding another dimension to what she sees as Professor MacKinnon's "lack of concern with
39
the moral relevance of human agency."
C. An ExistentialDefense
The final ground upon which Ms. Strossen defends pornography
is existential. In Professor MacKinnon's view, human sexuality "is
the dynamic of control by which male dominance-in forms that
range from intimate to institutional, from a look to a rapeeroticizes as man and woman, as identity and pleasure, that which
maintains and defines male supremacy as a political system." 40
MacKinnon claims that "women who believe they voluntarily engage
in, and enjoy, heterosexual sex ...[suffer from] 'false consciousness.'" 41 According to Ms. Strossen, these assertions "revive tradi36. STROSSEN, supranote 5, at 245.
37. STROSSEN, supra note 5, at 245.

38. See, e.g., STROSSEN, supra note 5, at 270 (describing the case of a criminal defendant
who asked the trier-of-fact to consider his exposure to violent pornography as a mitigating factor
in sentencing). Ms. Strossen warns that this behavior fits into a history in which criminal defendants have tried to blame their conduct on books. Id at 257. In Ms. Strossen's view, exposure to
pornography is an excuse for culpable behavior, not a cause for it. She suggests that Professor
MacKinnon's approach to pornography reproduces the mistakes of first-wave feminists, who advocated for the prohibition of alcohol on the belief that it caused male violence against women.
39. STROSSEN, supra note 5, at 271 (quoting law professor C. Edwin Baker).
40. The complete quote reads as follows:
[W]hat is sexual is what gives a man an erection. Fear does; hostility does; hatred does;
the helplessness of a child or a student or an infantilized or restrained or vulnerable
woman does; revulsion does; death does. Whatever it takes to make a penis shudder
and stiffen with the experience of its potency is what sexuality means culturally. Violation, conventionally through penetration and intercourse, defines the paradigmatic
sexual encounter. Transgression, for which boundaries must first be created, then violated, is necessary for penetration to experience itself. All this suggests that what is
called sexuality is the dynamic of control by which male dominance-in forms that
range from intimate to institutional, from a look to a rape-eroticizes as man and
woman, as identity and pleasure, that which maintains and defines male supremacy as
a political system.
Catharine A. MacKinnon, Pleasure Under Patiarhy, in CASES AND MATERIALS ON FEMINIST JU.
RISPRUDENCE 158 (Mary Becker, Cynthia Grant Bowman & Morrison Torrey, eds. 1994).

41. STROSSEN, supra note 5, at 111. Strossen also presents MacKinnon's argument that
"women who believe in their sexual agency are merely denying the 'unspeakable humiliation' of
having been 'cajoled, pressured, tricked, blackmailed, or outright forced into sex.'" STROSSEN,
supranote 5, at 111 (citation omitted). One feminist has even called the female orgasm "a form
of manipulated emotional labour which women work[] at in order to reflect men and to maintain male values." STROSSEN, supra note 5, at 112 (quoting Sally Cline). This author also expresses her disdain for "sexual intercourse and general genital thrashing about ....
" STROSSEN,
supranote 5, at 112.

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PORNOPHOBIA, PORNOPHILIA

tional, patriarchal, subordinating stereotypes that the feminism of

the 1970s ...
sought to repudiate." 42 In her view, human sexuality is
43
healthy, fun, and liberating.
In fact, Ms. Strossen argues that pornography itself can liberate
women. 44 She observes that significant numbers of women consume
pornography, 45 that "[w]omen ...make up a growing portion of
those who produce erotic materials,"46 and that lesbian pornography, in particular, serves important educational and political functions. 47 She "celebrates the 'wonderful diversity of [the] pornographic imagination"'48 and argues that even rape scenes may
liberate women by "express[ing] rebellion and individuality."49 She
states that she has, "[a]s a frequent traveler ...
noticed that many hotels all over the United States, including some of the finest, now offer
sexually explicit videos for in-room viewing," admitting openly that
50
she herself has "certainly enjoyed!" this service.
According to Ms. Strossen, "no credible evidence substantiates a
clear causal connection between any type of sexually explicit material
and any sexist or violent behavior."5 1 She thinks that Professor
MacKinnon's efforts to regulate pornography have contributed to
the "sex panic" currently plaguing the United States. In the midst of
this panic, "pornography" and even "sex" have become dirty words
used to censor masterpieces like The Nude Maja by Francisco de
Goya, as well as works by contemporary commercial and fine artists. 52
In addition, sexual harassment laws have begun to equate sex with
sexism,5 3 and the government has embarked on an all-out assault on
themes of sexuality in the visual arts. 54 Thus, in addition to violating
existing constitutional precepts and endangering the fight for
women's rights, MacKinnonite ordinances, in Ms. Strossen's opinion,
42. STROSSEN, supranote 5, at 114.
43. STROSSEN, supranote 5, at 115.
44. STROSSEN, supranote 5, at 144.
45. STROSSEN, supranote 5, at 159
46. STROSSEN, supra note 5, at 144.
47. STROSSEN, supranote 5, at 167.
48. Cass P. Sunstein, Defending Pornography:Free Speech, Sex, and the Fightfor Women's Right,
THE NEv REPUBLiC,Jan. 9, 1995, availablein 1995 WL 12434028.
49. STROSSEN, supra note 5, at 174.
50. STROSSEN, supranote 5, at 165; see Sunstein, supra note 48, at 15 (criticizing Strossen as
stressing only the "positive aspects of pornography").
51. STROSSEN, supra note 5, at 251.
52. Se STROSSEN, supra note 5, at 17, 21-22 (noting different examples of paintings and
statues removed from public locations).
53. STROSSEN, supra note 5, at 119-40.
54. STROSSEN, supra note 5, at 92-106.

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promote a perverted version of human sexuality.

II. ANALYSIS: CELEBRATING SUBORDINATION OR REFUTING
THE PORN SCARE?
In Defending Pornography,Ms. Strossen goes far beyond a mere affirmation of First Amendment principles, seeming, ultimately, to
celebrate pornography in whatever form it takes. 55 She "does not
present counter-arguments except in their most absurd form, and
she does not investigate distinctions that might complicate her own
view or lead to intermediate positions." 56 Ultimately, therefore, she
fails to refute Professor MacKinnon's central thesis: that pomography debases women and that its message "find[s] an echo in wider
society." 57 After examining two major flaws in Ms. Strossen's argument, this Section will discuss several of its strengths.
First, Ms. Strossen only superficially analyzes the relevant constitutional issues. The government can constitutionally regulate - and
even prohibit - many types of speech, including unlicensed medical
and legal advice, false or misleading advertisements, libel, fraud, perjury, bribery, and threats.5 8 In order to successfully argue that a ban
on pornography would violate the Constitution, then, one must distinguish sexually explicit expression from these categories of speech.
But Ms. Strossen fails to do so, "rest[ing her argument] on the
authority of a legal abstraction that can't do the work."59a In addition, she advocates a marketplace-of-ideas version of free speech so
piously that she ignores the familiar and potentially fatal criticisms of
60
that theory.
Second, Ms. Strossen attempts to make her case for free speech by
using actual examples of censorship in schools, businesses, and public spaces. But those examples are not so clearly egregious as she
seems to think. Consider the following:
55. See supranotes 42-49 and accompanying text.
56. Sunstein, supra note 48, at 7.
57. Melvin I. Urofsky, Defending Pornography:Free Speech, Sex, and the Fightfor Women's Rights,
29 U. RICH. L. REV. 401, 416 (1995) (reviewing Nadine Strossen's book).
58. See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 789-94, 849-56, 86186, 890-919 (2d ed. 1988).
59. Sunstein, supranote 48, at 10.
60. Although Professor Urofsky considers this "a task for another book," I do not. Urofsky,
supra note 57, at 418. In order to successfully attack Professor MacKinnon's construction of
pornography, Ms. Strossen has to refute the criticisms of the marketplace-of-ideas version of free
speech. Her failure to do so seriously undermines her argument. the closest she comes to taking on these criticisms is to say that the importance of free speech to the civil rights and feminist movements "beliets] the central contention of those who claim an incompatibility between
free speech and equality. that equality is an essential precondition for free speech." Strossen,
supra note 15, at 464.

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* In 1992, English Professor Nancy Stumhofer complained

that The Nude Maja, painted by Francisco de Goya,
"embarrassed her and made her female students
'uncomfortable.'" In response, Pennsylvania State University
officials removed the work from the front wall of a classroom
used for art history classes, where it had hung with repro61 '
ductions of other masterpieces.
* In 1993, the University of Nebraska at Lincoln ordered a
graduate teaching assistant to remove a photograph from his
desk on the grounds that it contributed to a hostile environment for female students, staff, and faculty. The photo62
graph showed his wife wearing a bathing suit.
* In 1993, Vermont authorities unveiled a new mural in the
conference room of a state building. The mural showed
Christopher Columbus (with "battle-axes and crucifix
raised") surrounded by bare-breasted Native American
women. After several female employees complained, the
63
state permanently concealed the painting.
e In 1994, in response to a complaint made by a female student, the Chicago Theological Seminary disciplined Professor Graydon Snyder for using a Talmudic story to illustrate
Jewish and Christian conceptions of culpability. In the story,
"a man ... falls off a roof, lands on a woman, and accidentally has intercourse with her ... ." According to the Talmud, he is innocent of wrongdoing because the act was un64
intentional.
Although Ms. Strossen apparently believes that these four examples illustrate a dangerous, uncontrolled, MacKinnonite sex panic, it
is not clear to this writer that the images they involve are utterly innocuous. Much as I admire the work of Francisco de Goya, for example, it is not clear to me that an image of a frontally-nude, reclining woman-staring seductively at the viewer with her anus clasped
above her head and her nipples erect-is conducive to an atmosphere of equality between male and female students. Ms. Strossen's
discussion of the incident, however, "suggests [that] ... since Goya
61. STROSSEN, supra note 5, at 22. Prior to removing the painting, "university officials offered to move [it] ... to a less prominent position in the classroom, such as the back wall," to
move Professor Stumhofer's classes, or to remove the Goya whenever she taught in that particular classroom. Id.
62. STROSSEN, supra note 5, at 127.
63. STROSSEN, supra note 5, at 21-22.
64. STROSsEN, supra note 5, at 28.

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was a celebrated painter, a complaint about the hanging of the painting on campus walls is automatically ridiculous."66
She describes the incidents in Nebraska and Vermont in similarly
conclusory terms, assuming that her readers will naturally find the
behaviors of university and state officials to be absurd. 66 Yet it is not
clear to me that schools should allow teachers to greet their female
students with photographs of adult women in a bathing suits. Nor is
it clear to me that female officials can preserve their dignity and
authority when they sit at conference tables beneath murals depicting bare-breasted women and fully-clothed, male conquerors. Furthermore, in a nation in which over a million women have survived
rape, 67 the suggestion that a man could "accidentally" have nonconsensual sexual intercourse with a woman - and thereby escape culpability

is reckless and offensive. 68

Ms. Strossen's defense of pornography suffers from other weaknesses as well. She reduces the debate over a civil, versus a criminal,
enforcement mechanism to "semantic quibbling;" 69 she paints too
rosy a picture of the sex industry and its workers; she ignores the
possibility that pornography might reduce women's autonomy and
individualism 70 (while bemoaning that loss for the creators and consumers of pornography in the event that MacKinnonite laws took
hold); she exaggerates the positive aspects of sexually explicit expression; and she brushes aside any possible connection between
sexual violence and pornography. 71 In addition, she does not ap-

65. Margaret McIntyre, Sex Panic orFalse Alarm? The Latest Round in the FeministDebate Over
Pornography, 6 UCLA WOMEN'S L.J. 189, 233 (1995) available in WL, JLR Database. Note that
classes other than those concerning art history met in the room in which the Goya hung and
that The Nude Maja occupied a central position on the front wall, behind the lectern.
After Professor Stumhofer distributed a portion of John Berger's book, Ways of Seeing, and invited people to read the article and discuss it with her, two men (one faculty member and one
maintenance worker) brought a sexual harassment case against her. STROSSEN, supranote 5, at
129. They claimed that the article harassed them with pictures of nude women. Ms. Strossen's
"failure to even suggest that the response was backlash against a woman speaking out about sexual harassment undermines her argument." McIntyre, supraat 233.
66. See supranotes 62-63 and accompanying text.
67. CaroleJ. Sheffield, Sexual Terrorim." The Social Control of Women, in ANALYZING GENDER:
A HANDBOOK OF SOCIAL SCIENCE RESEARCH 183-84 (Beth B. Hess & Myra Marx Ferree, eds.
1987).
68. STROSSEN, supra note 5, at 28. It makes no difference, despite Ms. Strossen's intimations to the contrary, that Professor Snyder, an "ordained minister," had taught the parable for
thirty years or that the story had its source in the Bible. See id.
69. STROSSEN, supranote 5, at 247-64.
70. Professor MacKinnon is correct that "liberalism has never understood that the free
speech of men silences the free speech of women." MACKINNON, supra note 1,at 156.
71. STROSSEN, supranote 5, at 65.

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PORNOPHOBIA, PORNOPHILIA

403

pear to take sexual harassment seriously.72

Despite these failings, however, Ms. Strossen argues quite convincingly that the feminist community should, for pragmatic reasons, resist Professor MacKinnon's approach to pornography. She presents
powerful anecdotal evidence to support her contention that MacKinnonite laws would ultimately silence the voices of feminists, 73 lesbians, and gay men. 74 She argues persuasively that the pornography
debate has distracted women from fighting the real causes of sexual
violence and discrimination - like sex-segregated labor markets,
unequal pay, and inadequate health and child care. 75 And she presents a sobering picture of Professor MacKinnon's relationship to po76
litical factions with patriarchal agendas.
In addition, Ms. Strossen presents an admirable and impassioned
defense of the arts. In my view, she correctly advises feminists to oppose laws and policies that will chill artistic speech. 77 Even incremental restraints on such expression should give us pause. Sexism
and misogyny permeate world culture so thoroughly that feminists
cannot attack them through censorship without losing a great deal.

I cannot agree with Marilyn French, that in "[v]isiting galleries and

museums (especially the Pompidou Center in Paris) I feel assaulted

by twentieth-century abstract sculpture that resembles exaggerated

female body parts, mainly breasts."78 I myself felt exhilarated at the
72. But see Urofsky, supra note 57, at 411 (claiming that "Strossen knows quite well that
there are many real cases of sexual harassment and exploitation ... ."). Ms. McIntyre points out
that women have for years had to change their behavior to fit into a male workplace and that

their acquiescence in the matter was "tacitly accepted." But in order to get men to change their
behavior to comport with women's needs, the law must demand it. Mcintyre, supra note 65, at
235.
73. STROSsEN, supranote 5, at 168-70.
74. STROSsEN, supra note 5, at 104-06, 168-70.
75. STROSSEN, supra note 5, at 266-68.
76. STROSSEN, supra note 5, at 90-91, 217-18.
77. STROSSEN, supra note 5, at 21-23, 99-106.
78. STROSSEN, supra note 5, at 104 (quoting MARILYN FRENCH, THE WAR AGAINST WOMEN).
Artists present women as solely sexual beings far too often and feminists are correct to challenge this practice. Nevertheless, women are, in reality, sexual beings; sexuality does not comprise our sum total, but it is one aspect of our humanity. In addition, women have an undeniably special connection to reproduction. We cannot excise sexuality from images of women
without foregoing images of women entirely. Taking the sexuality out of women in art and literature would be like taking the African ancestry out of African-Americans. We would wind up
with only images of European-looking people.
I wonder what Ms. French thinks of feminist sculptorJudy Chicago and her very famous work,
The DinnerParty. That work consists of a table set with numerous hand-crafted ceramic plates.
Each plate depicts the abstract image of a vulva, and each vulva represents a different, historically important woman. Judy Chicago intended the work to exalt female sexuality, to describe
female genitalia as beautiful, to celebrate the female reproductive anatomy in the same way that
the phallus is celebrated, and to educate viewers about women's history. But one could certainly argue that the plates reduce these historical figures to their genitalia.

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Pompidou Center, elated at the prospect of seeing in person so

many fine works of art that I had previously seen only in books. 79
Finally, Ms. Strossen offers a far more salubrious viewpoint on
human sexuality than does Professor MacKinnon who "embraces a
deeply reactionary theory of the flesh ... ."80 According to Lisa Dug-

gan, Nan Hunter, and Carole Vance, Professor MacKinnon's theory

evidences
several ... familiar themes: that sex is degrading to women, but not

to men; that men are raving beasts; that sex is dangerous for
women; that sexuality is male, not female; that women are victims,
not sexual actors; that men inflict "it" on women; that penetration
is submission; [and] that heterosexual sexuality, rather than the institution of heterosexuality is sexist. 81
They rightly consider it "ironic that a feminist position on pornography incorporates most of the myths about sexuality that feminism
has struggled to displace ...
."82 Like a conservative political theorist

who worries that sexual freedom will unleash violence at the body
politic, Professor MacKinnon worries that sexual expression will
"unleash violent desire at women's bodies." 83 In contrast, Ms.
Strossen argues that sex is a healthy, natural function and that
women's liberty depends in part on their ability to enjoy and express
their sexuality. In her view, "free sexual expression is intimately connected with equality."8
I. CONCLUSION: THE NEED FOR A MIDDLE PATH
Over a million American women - or "nearly 10 percent of the
current female population" - have survived rape.85 In 1991, one
rape occurred every five minutes. 86 This omnipresent threat of sexual violence prevents women from freely entering the public sphere.
79. It seems to me that women cannot ask for a sort of revisionist history that would delete
all reference to their subordination; we would dishonor ourselves and our foremothers if we
removed that history from the public dialog. I am not sure how to resolve the problems presented in the four examples discussed at page 401, however. I sincerely believe that the images
at issue hamper women's ability to thrive educationally and professionally. But I worry that
regulating such images in schools, businesses, and public spaces will chill artistic expression.
80. STROSSEN, supranote 5, at 116 (quoting feminist law professorJeanne Schroeder).
81. STROSSEN, supra note 5, at 107-08.
82. STROSSEN, supranote 5, at 107-08.
83. Edward de Grazia, DefendingPomography,THE NATION, Feb. 20, 1995, at 242, 260.
84. Strossen, supranote 5, at 477 (quoting Kenneth Karst ).
85. Emilie Buchwald, Pamela R. Fletcher & Martha Roth, Are We Really Living in a Rape Culture?, in TRANSFORMING A RAPE CULTURE 9 (Emilie Buchwald, Pamela R. Fletcher & Martha
Roth, eds. 1993).
86. Correcting for under-reporting, the FBI calculates that one rape occurs every two minutes. Sheffield, supranote 67, at 183.

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We do not possess the security - the freedom from others' violence

that John Locke identified as the defining characteristic of liberty.8 7 Professor MacKinnon's anger about such violence is therefore
appropriate. The pornography she targets in her model ordinance
probably adds little of value to the public discourse. It encourages
misogyny and sexism and contributes at least to discrimination, if
not to violence, against women. Although MacKinnonite laws would
decrease the liberty of producers, distributors, and consumers of
pornography, shrinking the "marketplace" with respect to their
ideas, such laws would also (perhaps dramatically) increase the liberty and equality of female citizens. Governments might, therefore,
view certain restrictions on pornography as furthering a compelling
state interest.
But feminists should move cautiously in this area, paying heed to
Ms. Strossen's catalogue of horribles. We should seriously consider
the possibility that MacKinnonite laws would ultimately advance a patriarchal political agenda, silencing the voices of feminists and lesbians. And we should continue to embrace our sexuality. We should, in
addition, revel in the arts, guarding our history of subordination just
as we guard our history of strength, beauty, humanity, and resistance.
And finally, we should not allow the pornography debate to distract
us from the real-world problems facing women.
Perhaps, in the end, Professor MacKinnon overstates both the inherent evils of pornography and its connection to violence and discrimination against women. Pornography exists within a patriarchal
culture fraught with habits, traditions, and beliefs that subordinate
women.8 8 If women want to attack misogyny, they should attack its
roots in politics, science, law, and theology. They should work for
equitable workplaces, schools, and homes. In the words of Carlin
Meyer,
[i]t seems implausible, to say the least, that pornography is more
centrally responsible either for rendering erotic or for making
possible the actualization of male violence against women than are
the ideologies and practices of religion, law, and science. These institutions far more deeply and pervasively undergird male domina89
tion of women.
87. Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106
HARv. L. Rxv. 517, 520, 520 n.11 (1993) (quoting Locke discussing "that tranquillity of spirit
which comes from ... security....").

88. See Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L.
REv. 1, 11-18 (1985) (discussing the subordination of women in the context of patriarchal culture and pornography).
89. STROSSEN, supra note 5, at 266 (quoting law professor Carlin Meyer).

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Pornography is just the symptom of a larger problem. Feminists

must, therefore, forge a middle path between the philosophies of
Catharine MacKinnon and Nadine Strossen. We must acknowledge
and resist pornography's harms, but we should not digress into an
argument for traditional morality that would ultimately betray our
movement.