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consume it conflicts with the right to moral independence, which can be seen as protecting in large part our citizen interests in the maintenance of a genuinely democratic community.13 Thus, reasonable persons committed to the rejection of legal moralism (as they should be, in virtue of their commitment to the equal concern and respect manifested in the classic liberal set of individual rights) cannot place pornography beyond the limits of toleration. In response to the Dworkinian version of the anti-censorship argument I shall consider an account of pornography as part of the social construction of women s inequality. This response stands as a real challenge to Dworkin s argu- ment because it purports both to avoid legal moralism, and to rely on precisely the egalitarian values that underpin the rights-based paradigm of harm, while establishing the diametrically opposed conclusion that pornography ought to be censored.14 If it can be shown that this interpretation of equality is reasonable, and if the claims made about the social construction of women s inequality are defensible, then liberal opposition to the censorship of pornography at least insofar as it rests on the argument from democracy must be rethought. The best known advocate of this view, Catharine MacKinnon, presents it as follows: The harm of pornography, broadly speaking, is the harm of the civil inequality of the sexes made invisible as harm because it has become accepted as sex difference. Consider this analogy with race: if you see Black people as different, there is no harm to segregation; it is merely a recogni- tion of that difference. . . . Similarly, if you see women as just different, even or especially if you don t know that you do, subordination will not look like subordination at all, much less like harm. It will merely look like an appropriate recognition of the sex difference.15 142 TOLERATION What does it mean to claim that pornography makes the harm of civil inequality invisible? In elucidating this claim MacKinnon draws on what she calls the dominance approach to sexual discrimination, which is a version of the thesis that the social world is constructed. What this means is that the cate- gories that constitute the social world, and the relations between people in it, are not natural features of the world given in advance of social relations, to which these forms of organisation then conform. Rather, these categories are a product of complex social relations between groupings of individuals with different interests and degrees of power over one another, and form part of the ideology of the society in question. So, for example, the categories mother , brother , white , employer , male , and female are not natural, pre-social categories; rather, they reflect dynamic social relations between individuals who adopt these roles and engage in the relationships associated with them. MacKinnon s dominance version of the social construction thesis relates specifically to gender and highlights the fact that men have more power across all domains than women. This fact of power inequality, she argues, means that men have ultimate control over the social construction of the gender category female , and use this control in order to retain and increase their power.16 For MacKinnon, pornography is a key prop in this social construction, and violates civil equality between the sexes by perpetuating patriarchy: pornography institutionalizes the sexuality of male supremacy, which fuses the eroticization of dominance and submission with the social construc- tion of male and female. Gender is sexual. Pornography constitutes the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is. Men s power over women means that the way men see women defines who women can be. Porn- ography is that way.17 In what sense does pornography construct civil inequality between the sexes? Answering this question requires a more detailed definition of pornography than that given in the first section. In 1983 Catharine MacKinnon and Andrea Dworkin were asked by the legislators of the city of Minneapolis to write an ordinance to be used to protect citizens against the perceived civil rights viola- tions caused by pornography. The definition of pornography in the Model Ordinance upon which the Minneapolis Ordinance, and ordinances in Indianapolis, Los Angeles County, and Massachusetts were modelled18 is as follows: [Pornography is] the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following: (a) women are presented dehumanized as sexual objects, things, or commodities; or (b) women are presented as sexual objects who enjoy humiliation or pain; or (c) women are presented as sexual objects experi- encing sexual pleasure in rape, incest, or other sexual assault; or (d) women PORNOGRAPHY AND CENSORSHIP 143 are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (e) women are presented in postures or positions of sexual submission, servility, or display; or (f) women s body parts including but not limited to vaginas, breasts, or buttocks are exhibited such that women are reduced to those parts; or (g) women are presented being penetrated by objects or animals; or (h) women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.19 As can be seen, the Model Ordinance definition of pornography isolates a specific set of sexually explicit materials united by their presentation of women as subordinate.20 This means importantly that a distinction can be made between erotica and pornography, where the former set of sexually explicit materials does not present women as subordinate.21 Thus, the Ordinance defini- tion opens up the possibility of feminist pornography (read: erotica).22 Using this definition in conjunction with the background thesis of the domi- nance approach, MacKinnon argues that pornography as protected by the First Amendment (or any other principle granting the same scope to freedom of expression) is on a collision course 23 with the Fourteenth Amendment (or any other principle of civil equality). The subordination of women perpetuated by pornography the images it peddles of women being beaten, raped, humiliated, etc., and enjoying it translates as unequal freedom of speech for women: Pornography terrorizes women into silence ;24 it chills women s expression 25 by making their speech impossible, and where possible, worthless. Pornography makes women into objects. Objects do not speak. When they do, they are by then regarded as objects, not as humans, which is what it means to have no credibility. 26 A crude, though accurate, manifestation of the harm MacKinnon identifies is the view (which has on occasion been voiced by stupid judges in US and UK rape trials) that when a woman says no to sexual intercourse she does not always mean no : in MacKinnon s view, pornography constructs the social reality of gender relations whereby this view gains currency. MacKinnon s argument is egalitarian insofar as it presents pornography as perpetuating inequality of speech between men and women: free speech as exer- cised by pornographers under protection of the First Amendment denies equal speech to women as required by the Fourteenth Amendment.27 The egalitarian character of MacKinnon s argument makes it prima facie promising as a reply to liberals such as Dworkin who reject arguments for the censorship of pornog- [ Pobierz całość w formacie PDF ] |
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